Mueller Probe Archives - Page 13 of 152

On the Belated Education of John Durham

In a filing on September 2 in the Igor Danchenko case, John Durham confirmed that Danchenko had been a paid FBI source from March 2017 through October 2020.

In March 2017, the FBI signed the defendant up as a paid confidential human source of the FBI. The FBI terminated its source relationship with the defendant in October 2020.

I had heard this — though not with the sourcing such that I could publish. Apparently it was news to the frothers, who’ve been wailing about it ever since. Here’s Margot at the Federalist Faceplant, Jonathan Turley, and Chuck Ross at his new digs at the outlet that first hired Christopher Steele. Here’s the former President during an obsequious Hugh Hewitt interview.

Danchenko’s status was implicit in a lot of what is public. Even absent the frothers doing any kind of journalism, or even critical thinking, what did they think this reference in Danchenko’s motion to dismiss meant?

The government had unfettered access to Mr. Danchenko for approximately four years following his first interview in January 2017, and not once did any agent ever raise concerns about the now purportedly contradictory post-call emails.

As I hope to show in a follow-up, it actually makes a lot of sense.

Meanwhile, in Danchenko’s response to that filing, he revealed that information he provided to the FBI was used in a memorandum supporting the opening of an investigation into Charles Dolan, one of Durham’s star witnesses against Danchenko. (Note, this reference stops short of saying that the FBI did open an investigation into Dolan, just that someone proposed doing so.)

[T]he Special Counsel ignores, and conceals from this Court, that Mr. Danchenko was interviewed dozens of times and during the course of those interviews, particularly when asked specific questions about Dolan (which was not often), Mr. Danchenko (1) told the FBI about the Moscow trips with Dolan, (2) told the FBI that Steele knew of Dolan, (3) told the FBI that not only was Dolan doing work with Olga Galkina but that Mr. Danchenko himself had introduced them, and (4) told the FBI that Dolan had connections and relationships with high-level Kremlin officials, including President Putin’s personal spokesperson, Dmitry Peskov. Indeed, when agents drafted a December 2017 communication in support of opening an investigation into Dolan, they included the information Mr. Danchenko provided them as support for opening the investigation. 3 [emphasis original]

This may not be the last surprise investigation we hear about. Back in the original filing on September 2, Durham argued he should be able to talk about the 2008 allegation that led to a counterintelligence investigation into Danchenko, in part, because (Durham predicted bitterly) Danchenko will likely raise investigations into others, plural, who will “feature prominently at trial.”

[T]he Government expects the defense to introduce evidence of FBI investigations into other individuals who the Government anticipates will feature prominently at trial. Thus, the introduction of the defendant’s prior counterintelligence investigation – should the defense open the door – does not give rise to unfair prejudice that substantially outweighs its probative value.

Effectively, Durham is arguing that if Danchenko points out that Durham’s witnesses should not be considered reliable based on suspicions they were working for Russia’s interests, then he should be able to point out that Danchenko was once similarly suspected as well. Durham also wants to point out that Dolan twice asserted that Danchenko might be a Russian spook, but also allegedly always knew of his role at Orbis — assertions that, in tandem, could actually hurt Durham’s case, given the subsequent disclosure that Dolan was investigated himself. Durham may not understand that, yet.

One of these people whose investigation Danchenko will raise at trial is undoubtedly Sergei Millian, whose cultivation of George Papadopoulos in exactly the same time period Danchenko claims to have believed he spoke to Millian was one of a number of things the FBI investigated starting in 2016.

Danchenko’s response to Durham’s demand that he be allowed to raise the 11-year old counterintelligence investigation into Danchenko (besides providing a somewhat different timeline) was basically to say, “Bring it!” He intends to raise that counterintelligence investigation himself, he claims. Note: Durham doesn’t note, but it is clear from the January interviews of Danchenko, that FBI interviewers probed Danchenko about that prior investigation in their very first interviews in 2017.

As noted, I hope to return to all this dizzying spy-versus-spy shit in a follow-up. By then we’re likely to have several more disclosures, plus some details about the known investigation into Millian.

This all shows there was not a shred of prosecutorial discretion exercised before charging Danchenko. Even if Danchenko had done grievous harm to the US, no sane prosecutor would have charged this case with such easily impeached witnesses. Even Durham now seems to understand his materiality claims are flimsy. And yet, to prove a five year old false statements allegation, he has forced the government to declassify a whole range of sensitive material, including this detail about Dolan.

And that process apparently continues to be a struggle for Durham (as I predicted it would be).

Consider the timeline implied by Danchenko’s footnote about the Dolan revelation. Danchenko claims that he only just learned about the Dolan investigation opening memo.

3 The December communication is highly exculpatory with regard to the essential element of materiality and it is not clear why it was only produced 30 days from the start of trial. It was produced as Jencks material (also late by the terms of the Court’s Order requiring all Jencks to be produced by September 1) but is obviously Brady evidence. The defendant understands that the CIPA procedures may have slowed the production of certain categories of discovery but given the Indictment’s allegations about the materiality of Mr. Danchenko’s failure to attribute public information to Dolan, the production of this specific document should have been a priority for declassification.

When Danchenko says that Counterintelligence Information Procedures Act may have slowed the production of this, he’s suggesting (charitably) that someone at DOJ took a long time to release this information to Durham and that Durham had no control over that process. That’s another thing I predicted in this post about how CIPA would affect this case: “it can end up postponing the time when the defendant actually gets the evidence he will use at trial. So it generally sucks for defendants.”

The trial starts on October 11. This footnote suggests that Danchenko only received this information 30 days before trial, so around September 11, in the week before he filed this. Whenever it was disclosed, if he received it after the September 1 deadline, that would make it too late for the September 2 deadline for Danchenko’s own motion to dismiss. It would put it after Durham’s September 2 filing — the one bitching about how much of the trial Danchenko will use to focus on the investigations into witnesses, plural, against him — which means the plural reference may not have incorporated Dolan. Danchenko would have learned about this over a month after his own deadline to lay out what classified information he intended to use at trial, and at least a week after the August 30 CIPA conference, at which the two sides debated about what classified information Danchenko should be allowed to use at trial.

It also comes after a series of delays in Durham’s classified discovery. In May, I described what was publicly billed as the last one.

It’s that record that makes me so interested in Durham’s second bid to extend deadlines for classified discovery in the Igor Danchenko case.

After Danchenko argued he couldn’t be ready for an April 18 trial date, Durham proposed a March 29 deadline for prosecutors to meet classified discovery; that means Durham originally imagined he’d be done with classified discovery over six weeks ago. A week before that deadline, Durham asked for a six week delay — to what would have been Friday. Danchenko consented to the change and Judge Anthony Trenga granted it. Then on Monday, Durham asked for another extension, this time for another month.

When Durham asked for the first delay, he boasted they had provided Danchenko 60,000 unclassified documents and promised “a large volume” of classified discovery that week (that is, before the original deadline).

To date, the government has produced over 60,000 documents in unclassified discovery. A portion of these documents were originally marked “classified” and the government has worked with the appropriate declassification authorities to produce the documents in an unclassified format.

[snip]

Nevertheless, the government will produce a large volume of classified discovery this week

This more recent filing boasts of having provided just one thousand more unclassified documents and a mere 5,000 classified documents — for a case implicating two known FISA orders and several past and current counterintelligence investigations.

To date, the Government has produced to the defense over 5,000 documents in classified discovery and nearly 61,000 documents in unclassified discovery. The Government believes that the 5,000 classified documents produced to date represent the bulk of the classified discovery in this matter.

Danchenko waited six weeks and got almost nothing new.

But then on August 16, Durham filed a supplemental CIPA filing, suggesting there were more substitutions of classified information he wanted Judge Anthony Trenga to approve (a supplemental filing is not, by itself, unusual).

The point is, for months, Durham kept saying he’d have all the secrets delivered to Danchenko by his new deadline in June, promise, and then he dropped this bombshell on Danchenko just weeks before trial.

In the August 29 hearing on all this, Judge Trenga deferred most CIPA decisions until after Danchenko files a new CIPA filing on September 22 — so if any of this remains classified, Danchenko still has a chance, with just days notice, to argue he needs it at trial. They’ll fight about these issues again on September 29.

But given Durham’s performance in the Sussmann case, it’s not entirely clear these missed classified deadlines are DOJ’s fault. After all, Durham never even asked DOJ IG for relevant discovery in Sussmann’s (and therefore, we should assume, this) case until after Sussmann was charged. He didn’t investigate Rodney Joffe’s true relationship with the FBI and other agencies until Sussmann asked him to. He didn’t ask Jim Baker for his own iCloud content until early this year, after belatedly rediscovering Baker phones he had been told about years ago.

It’s not just his belated request for information from DOJ IG that we know to have affected this case too. Durham also has never interviewed George Papadopoulos — not before he went on a junket to Italy chasing Papadopoulos’ conspiracy theories, and not since. Thus, Durham never tested whether Millian’s cultivation of Papadopoulos undermines his evidence against Danchenko — and it does, obviously and materially.

Because of Durham’s obvious failures to take the most basic investigative steps before charging wild conspiracy theories, there are several possible explanations why he’s only providing Danchenko news of this Dolan memo a month before trial:

Someone tried to hide this from Danchenko and ultimately was overridden. If that’s the explanation, it makes Andrew DeFilippis’ August departure from the team and, according to the NYT, DOJ, all the more interesting.
DOJ delayed the time until they let Durham disclose this because of some sensitivity about the investigation. Recall that Dolan has ties to Putin spox Dmitri Peskov, who was sanctioned earlier this year, followed by his family.
Durham didn’t know.

The last possibility — that Durham had no fucking clue that one of his star witnesses had been (at least considered) for investigation — is entirely plausible. It’s entirely consistent with what we saw in the Sussmann case, though worse even than that case in terms of timing.

Durham came into this investigation treating the conspiracy theories of Papadopoulos and Trump as credible. He seems to have believed, all along, that Sergei Millian was a genuinely aggrieved victim and not someone playing him, for at least a year, for a fool. He seems to have decided that he knew better than FBI’s experts about who had credibility about Russia and who didn’t. Along the way he forced the FBI to cut its ties with Joffe and — given the October 2020 cut-off of Danchenko’s ties to the FBI, probably Danchenko as well. He did all this with a lead prosecutor who believed it was problematic for DARPA to investigate the Guccifer 2.0 persona used by the GRU.

Durham walked into this investigation believing and parroting, without first testing, Trump’s claims that the Russian investigation was abusive. Based on those beliefs, he chased all manner of conspiracy theory in an attempt to allege pre-meditation and malice on the part of Hillary and everyone else involved with the dossier. His Sussmann prosecution ended in humiliating failure. This prosecution, win or lose, may do worse for Durham’s project: it may reveal unknown details about Russian efforts to tamper in 2016, efforts that harmed both Republicans and Democrats alike.

The Durham prosecutions have been shitshows and undoubtedly a disaster for those targeted. It’s not yet clear what will happen with the Danchenko trial (or even whether it will go to trial; given that CIPA issues still have to be resolved, there’s still a chance Durham will have to dismiss it rather than going to trial). Durham will still write a report that may try to resuscitate his conspiracy theories that were disproven in the Sussmann trial.

But thus far, the actual record of the Durham investigation shows that when actually bound by the rules of evidence, when actually obligated to dig through DOJ’s coffers to discover what DOJ learned as it tried to understand Russia’s intervention in 2016, reality looks nothing like the conspiracy theories Durham has chased for three years.

John Durham’s education process has been a painful process for all personally involved (except maybe Sergei Millian, gleefully dicking around from afar). But along the way he’s debunking many of the conspiracy theories he was hired to sustain.

Update: Chuck Ross is outraged that I suggested his boss had paid for Steele (and lying that I said Paul Singer paid for the dossier, which I pointedly did not say). It is true that the payment for Fusion GPS’ Trump project had shifted to Perkins Coie before Steele first sent Danchenko to Russia.

It’s also true that, based on length of project, Ross’ current boss paid for much of Nellie Ohr’s work on Trump’s ties to Russia, which includes some of Fusion’s early work on Paul Manafort and Felix Sater, and possibly early work on Millian (she continued to work on Millian until she left Fusion).

And since Chuck is so upset, I should point out that his former co-columnist, Oleg Deripaska, also reportedly paid for Steele’s work (in that case, research on Paul Manafort), though also through the cut-out of a law firm.

Durham Admits He Has No Real Evidence on Four Millian Counts against Igor Danchenko

In the middle of a motion in limine arguing, in part, that the Durham prosecutors should be able to introduce two sets of emails from Sergei Millian to one of the journalists who gave Igor Danchenko Millian’s contact information, John Durham admits that those emails are the most probative evidence he’s got that Millian never met or spoke with Danchenko.

Fourth, whether the statements are the most probative evidence on the point. Millian’s emails written contemporaneous to the events at issue are undoubtedly the most probative evidence to support the fact that Millian had never met or spoken with the defendant.

Mind you, whether Millian ever spoke to Danchenko or not is irrelevant to whether Danchenko believed that he had.

But Durham appears not to understand that.

If you don’t mind, I think I’ll punctuate this post with stupid Millian Tweets — like some Greek chorus — while I take breaks to wrap my brain around how Durham got his ass so badly handed to him by Sergei Millian.

Durham appears not to understand that if Danchenko got a phone call from someone else in July 2016, but believed at the time that the call was from Millian, then his four charged statements that he believed the call was from Millian would still be entirely true — an argument I made last year and one Danchenko made in his Motion to Dismiss (Danchenko’s MTD was filed after the government motion, but submitted unsealed from the start).

[T]he indictment does not allege that Mr. Danchenko did not receive an anonymous phone call in or about late July 2016. Instead, the indictment alleges only that Mr. Danchenko “never received such a phone call or information from any person he believed to be Chamber President-1[.]” The alleged false statement is that Danchenko did not truly believe that the anonymous caller was Chamber President-1. The indictment also alleges that Mr. Danchenko “never made any arrangements to meet Chamber President-1.” However, Mr. Danchenko never stated that he made such arrangements. Rather, he told the FBI that he arranged to meet the anonymous caller, but the anonymous caller never showed up for the meeting.

But Durham believes his job is to prove that Millian never spoke with Danchenko, and so spent a third of his filing making humiliating admissions about how weak his case is.

One of the dire problems Durham has with his Millian case is that … as I predicted … he has no witness.

As I noted last year, when he originally charged Danchenko, he relied on Millian’s Twitter feed, not an interview with Millian, to substantiate Millian’s claim that he never spoke with Danchenko. Here’s how Sergei responded last year when I pointed out that his testimony, under oath, would be necessary to convict Danchenko.

Turns out I wasn’t nuts. All of the sources against Danchenko were willing to testify under oath, it appears, but Millian. Well, and Christopher Steele, too, but that’s for another post.

To Durham’s … um … credit, he did at some point (he tellingly hides the date) get Millian to participate in a “virtual interview” (which may or may not be the same as a “video interview”?). In that interview, Millian claimed that rather than fleeing the US because of the criminal investigation into him and Mueller’s interest in interviewing him, he fled the country because of the Steele dossier.

The Government has conducted a virtual interview of Millian. Based on representations from counsel, the Government believes that Millian was located in Dubai at the time of the interview. During the interview, Millian stated, in sum and substance, that he has never met with or spoken with the defendant, Millian informed investigators that he left the United States in March 2017 and he has not returned. Millian stated, in sum, that he left the United States due to threats on his and his family’s personal safety because of his alleged role in the Steele Reports. On multiple occasions, the Government has inquired about Millian’s availability to testify at the defendant’s trial. Millian has repeatedly informed the Government that he has concerns for his and his family’s safety (who reside abroad) should he testify. Millian also informed the Government that he does not trust the FBI and fears being arrested if he returns to the United States. The Government has repeatedly informed Millian that it will work to ensure his security during his time in the United States, as it does with all witnesses. The Government has also been in contact with Millian’s counsel about the possibility of his testimony at trial. Nonetheless, despite its best efforts, the Government’s attempts to secure Millian’s voluntary testimony have been unsuccessful. Moreover, counsel for Millian would not accept service of a trial subpoena and advised that he does not know Millian’s address in order to effect service abroad.

Durham was unable to subpoena Millian to require him to testify under oath to his claim that he never spoke with Danchenko, because Sergei’s lawyer doesn’t know where he lives, not even to bill him. I guess he bills him “virtually,” just like the interviews.

But don’t worry. Durham promises he has other evidence that Sergei could not have called Danchenko in July 2016.

That evidence is that Millian was traveling in Asia during the period between July 21 and July 26, 2016, when such a call to Danchenko would have taken place.

Millian was traveling in Asia at the time the defendant sent this email and did not return to New York until late on the night of July 27, 2016. Notably, Millian had suspended his cellular phone service effective July 14, 2016 (prior to his travel) and his service was reconnected effective August 8, 2016. The defendant did travel to New York from July 26, 2016 through July 28, 2016 with his young daughter and spent much of his time sight-seeing, including a trip to the Bronx Zoo on July 28, 2016. The defendant would later claim to the FBI that it was during this trip to New York that the defendant attempted to meet Sergei Millian (after having received the alleged anonymous phone call from a person he purportedly believed to be Millian). [my emphasis]

The implication, says the Special Counsel who flew to Italy to get the multiple phones of Joseph Mifsud but who never walked across DOJ to get the multiple phones of his key witness Jim Baker, is that Millian could not have called Danchenko because the only possible SIM card he would have used while traveling in Asia, which generally used the GSM standard, would be the phone he used in the US, where CDMA was still widely used.

Millian couldn’t have called Danchenko during the period, Durham says, because his US-based phone was shut down while he was traveling in Asia.

That would be a shocking claim to make about any fairly sophisticated traveler in 2016, much less one who made the effort to shut off his ~~location tracker~~ cell coverage while he traveled overseas and for twelve days after he returned.

It’s an especially remarkable claim to make about someone that — DOJ has proof! — was arranging in-person meetings in NYC in precisely the same period, via text messages sent during the period when Millian’s US phone service was shut down.

Papadopoulos first connected with Millian via Linkedln on July 15, 2016, shortly after Papadopoulos had attended the TAG Summit with Clovis.500 Millian, an American citizen who is a native of Belarus, introduced himself “as president of [the] New York-based Russian American Chamber of Commerce,” and claimed that through that position he had ” insider knowledge and direct access to the top hierarchy in Russian politics.”501 Papadopoulos asked Timofeev whether he had heard of Millian.502 Although Timofeev said no,503 Papadopoulos met Millian in New York City.504 The meetings took place on July 30 and August 1, 2016.505 Afterwards, Millian invited Papadopoulos to attend-and potentially speak at-two international energy conferences, including one that was to be held in Moscow in September 2016.506 Papadopoulos ultimately did not attend either conference.

500 7/15/16 Linkedln Message, Millian to Papadopoulos.

501 7 /15/16 Linkedln Message, Millian to Papadopoulos.

502 7/22/16 Facebook Message, Papadopoulos to Timofeev (7:40:23 p.m.); 7/26/16 Facebook Message, Papadopoulos to Timofeev (3:08:57 p.m.).

503 7/23/16 Facebook Message, Timofeev to Papadopoulos (4:31:37 a.m.); 7/26/16 Facebook Message, Timofeev to Papadopoulos (3:37: 16 p.m.).

504 7/16/16 Text Messages, Papadopoulos & Millian (7:55:43 p.m.).

505 7/30/16 Text Messages, Papadopoulos & Millian (5:38 & 6:05 p.m.); 7/31/16 Text Messages, Millian & Papadopoulos (3:48 & 4:18 p.m.); 8/ 1/16 Text Message, Millian to Papadopoulos (8:19 p.m.).

506 8/2/16 Text Messages, Millian & Papadopoulos (3 :04 & 3 :05 p.m.); 8/3/16 Facebook Messages, Papadopoulos & Millian (4:07:37 a.m. & 1:11:58 p.m.).

Anyway, that’s the background to why, Durham says, the best evidence he’s got that Millian never called Danchenko are some emails.

One of those emails is inconsistent with Durham’s story, which says that Millian returned late on July 27, which was a Wednesday. On July 26, Millian sent this to one of the RIA Novosti journalists, Dimitry Zlodorev:

Dimitry, on Friday I’m returning from Asia. An email came from Igor. Who is that? What sort of person?

Durham says one of his best pieces of evidence that Millian didn’t call Danchenko is an email that had him returning two days later than he actually returned. Something led Millian to come back early, at least according to Durham’s record.

Early enough to be in NYC when Danchenko was there.

Durham also wants to introduce some emails Millian sent Zlodorev in 2020, three years after Danchenko’s alleged lie and four years into a manufactured outrage over the Steele dossier. One of those emails suggests that Millian believed Steele blamed Danchenko for problems with the dossier, which is probably true, but Durham thinks it helps him anyway.

I’ve been informed that Bogdanovsky travelled to New York with Danchenko at the end of July 2016; Danchenko, supposedly to meet with me (but the meeting didn’t take place). Can you inquire with Bogdanovsky whether he remembers something from that trip and whether they touched upon my name in conversation, as well as for what reason Danchenko was travelling to NY? Steele, it seems, made Danchenko the fall guy, but Danchenko himself made several statements that were difficult to understand, for example, about the call with me. Did he tell Bogdanovsky that he communicated with me by phone and on what topic? Thank you! This will clarify a lot for me personally. It’s a convoluted story! [my emphasis]

That’s how desperate he is for evidence to prove his four Millian charges.

Now, as Durham did when he tried to introduce totally unrelated emails in the Michael Sussmann case, Durham says he’s not introducing these (as what he calls “the most probative evidence” that Millian didn’t call Danchenko) for the truth.

He’s just asking questions — but not, apparently, why Millian said he was coming back Friday when he ended up coming back on Wednesday instead, early enough to be in NY when Danchenko was there.

As an initial matter, all three emails to Zlodorev are admissible non-hearsay because each email consists of a series of questions, i.e., (1) “Who is that? What sort of person?” (July 26, 2016), (2) “Do you remember such a person? Igor Danchenko?” (July 19, 2020), and (3) (a) “Can you inquire with Bogdanovsky whether he remembers something from that trip and whether they touched upon my name in conversation, as well as for what reason Danchenko was travelling to NY? (b) “Did he tell Bogdanovsky that he communicated with me by phone and on what topic?” (July 20, 2020). See Sinclair, F. App’x at 253. To the extent the remaining sentences in those emails are statements, they are not being offered to prove the truth of the matter asserted. Indeed, with respect to the July 26, 2016 email, the Government is not seeking to prove that (1) Millian was returning from Asia on Friday or (2) that an email came from the defendant.

And if his just asking questions ploy doesn’t work, then he’ll raise the point that he charged this indictment without ever talking to Sergei Millian first!!!

First, the unavailability of the declarant. A declarant is “unavailable” at a hearing or trial when he “is absent from the hearing and the proponent of a statement has not been able, by process or other reasonable means, to procure the declarant’s attendance or testimony. Fed. R. Evid. 804(a)(5)(B). “Courts have consistently held that hearsay exceptions premised on the unavailability of a witness require the proponent of a statement to show a good faith, genuine, and bona fide effort to procure a witness’s attendance.” United States v. Wrenn, 170 F. Supp. 2d 604, 607 (E.D. Va. 2001) (citing Barber v. Page., 390 U.S. 719,724 (1968)). Courts considering whether a prosecutor, as the proponent of a statement, “has made such a good faith effort have focused on the reasonableness of the prosecutor’s efforts.” Id. \ Ohio v. Roberts, 448 U.S. 56, 74 (1980) (“The lengths to which the prosecutor must go to produce a witness … is a question of reasonableness. The ultimate question is whether the witness is unavailable despite good-faith efforts undertaken prior to trial to locate and present the witness.”). In the case of a U.S. national residing in a foreign country, 28 U.S.C. § 1783 allows for the service of a subpoena on a U.S. national residing abroad. Here, the Government has made substantial and repeated efforts to secure Millian’s voluntary testimony. When those efforts failed, the Government attempted to serve a subpoena on Millian’s counsel who advised that he was not authorized to accept service on behalf of Mr. Millian. The Government, not being aware of Millian’s exact location or address, asked counsel to provide Millian’s address so that service of a subpoena could be effectuated pursuant to 28 U.S.C. § 1783. Counsel stated that he does not know Millian’s address. In any event, even if the Government had been able to locate Millian, it appears unlikely that Millian would comply with the subpoena and travel to the United States to testify. Indeed, as discussed above, Millian has shown a reluctance to travel to the United States for fear of his personal safety and his family’s safety. Accordingly, the Government has demonstrated good faith efforts to secure Millian’s appearance at trial.

What’s interesting is that Durham not only claims that Millian had no motive to lie to Zlodorev in 2016, but he asserts that “the existence of the Steele Reports were not public.”

The Government is not aware of any evidence that Millian was aware of who the defendant was in July of 2016. Millian also had no motive to lie about his knowledge of the defendant in July 2016. Indeed, at that time of the July 2016 email the existence of the Steele Reports were not public. Further, Millian had no apparent motive to lie to Zlodorev, an individual he appears to consider a friend.

They were to this guy.

According to the IG Report that Durham had never read before charging Sussmann, an Oleg Deripaska associate likely knew of the dossier by early July 2016, weeks after Millian met with one of the key architects of the 2016 operation in St. Petersburg and weeks before Danchenko emailed Millian and then Millian grilled Zlodorev about who Danchenko was.

Oleg Deripaska had a motive to lie about the dossier — and he appears to have been lying, to both sides.

Similarly, Durham claims that Millian had no motive to lie in 2020 when he grilled Zlodorev again about the circumstances of his meeting with Danchenko.

The July 2020 emails between Millian and Zlodorev also bear circumstantial guarantees of trustworthiness. Again, in July 2020, Millian had no motive to lie to Zlodorev.

Which is really nutty, because the Twitter account that Durham relied on to charge this thing claimed that — years earlier and therefore presumably well before 2020 — he had personally called the White House and told them the identities of the people behind the dossier.

He would have called from Asia or some other undisclosed location, though, so in Durham’s mind such a call would not exist.

And that’s how it came about that we’re a month away from trial, and John Durham is begging Anthony Trenga to admit emails from 2020 as his best evidence in four charges against Danchenko because he decided to rely on a Twitter account rather than securing witnesses in his case first.

For months and years, John Durham has treated Sergei Millian — a man who fled the country to avoid a counterintelligence investigation and questions from Mueller, but whom Durham claims fled the country because of the dossier — as an aggrieved victim. And in the same filing admitting that he has no solid evidence to prove that he is a victim, Durham also talked about how important it is to consider whether you’re getting played by Russian disinformation.

Such evidence is admissible because in any investigation of potential collusion between the Russian Government and a political campaign, it is appropriate and necessary for the FBI to consider whether information it receives via foreign nationals may be a product of Russian intelligence efforts or disinformation.

“SCO Durham, think of your legacy please❗❗”

Update: Replaced “in real time” based on Just Some Guy’s observations.

Earlier emptywheel coverage of the Danchenko case

The Igor Danchenko Indictment: Structure

John Durham May Have Made Igor Danchenko “Aggrieved” Under FISA

“Yes and No:” John Durham Confuses Networking with Intelligence Collection

Daisy-Chain: The FBI Appears to Have Asked Danchenko Whether Dolan Was a Source for Steele, Not Danchenko

Source 6A: John Durham’s Twitter Charges

John Durham: Destroying the Purported Victims to Save Them

John Durham’s Cut-and-Paste Failures — and Other Indices of Unreliability

Aleksej Gubarev Drops Lawsuit after DOJ Confirms Steele Dossier Report Naming Gubarev’s Company Came from His Employee

In Story Purporting to “Reckon” with Steele’s Baseless Insinuations, CNN Spreads Durham’s Unsubstantiated Insinuations

On CIPA and Sequestration: Durham’s Discovery Deadends

The Disinformation that Got Told: Michael Cohen Was, in Fact, Hiding Secret Communications with the Kremlin

John Durham’s Igor Danchenko Case May Be More Problematic than His Michael Sussmann Case

“Desperate at Best:” Igor Danchenko Starts Dismantling John Durham’s Case against Him

What Family Rifts at Funerals can Teach Us About Pardoning Presidents

September 10, 2022/71 Comments/in 2020 Presidential Election, Department of Justice, January 6 Insurrection, Mueller Probe, Press and Media, Racism, Trump Administration /by Peterr

Exhibit A of Step Two Behavior

Watching the coverage of the death of Elizabeth II, two questions seem to be on a constant loop. The first is political: “How will Charles change the monarchy?” The second is personal: “Will the funeral heal the rift between Harry and William/Charles/the rest of the family?” The discussions that follow, between television anchors, reporters, and “royal watchers” have provided me with great amusement. “Oh look: Charles said something nice about Harry and Meghan in his first broadcast after the Queen’s death! Perhaps all is well again!!” The wishfulness of the discussion — “Surely the funeral of their beloved mother/grandmother will bring the family together, and they can heal from the past unpleasantness” — says much more about the hopes that these media folks have and much less about the reality of how a family torn apart acts as a family funeral approaches.

As a pastor for more than three decades, I’ve never done a royal funeral, but I’ve done plenty of regular funerals, including those of matriarchs who had presided over a divided family. Most of the time, what I’ve seen is that either (a) the family members manage to sit on their frustrations with one another for a week or so as the funeral goes forward, and then they return to their earlier fighting, or (b) the funeral intensifies the fighting, as they argue about the decisions made around the funeral itself. Occasionally, the funeral does help to begin a healing process, as folks who have not seen “those monsters” in years are now in the same room for the first time again, and they realize that these other folks aren’t the monsters they have seen them to be in the past. It doesn’t happen five minutes after the burial, but with a willingness to work on both sides, healing is possible. But it sure isn’t the magic “If only Harry and William can sit next to each other at the funeral, everything will be fixed!” that so many commentators are looking for.

Which brings me to the other crazy question I’ve seen popping up more and more often between anchors, reporters, and political pundits. This is the question posed by Chuck Todd that NBC chose to highlight as they tease the Meet The Press interview with VP Kamala Harris that airs in full tomorrow:

Let me try to go to 60,000 feet. What do you say to the argument that it would be too divisive to the country to prosecute a former president?

Earth to Chuck Todd, and anyone else who asks this question: the country *is* deeply divided already.

Giving Trump a pass to “avoid division” is like that scenario (a) at the family funeral, except you are betting that everyone can sit on their frustrations not for a week but forever. Turning the question around — “Would it be too divisive to the country to give a former president a pass for illegal behavior?” — ought to make it clear how silly both questions are.

Step One in dealing with divisions — either at a family funeral or in national politics — is admitting your family/nation is already divided.

As an interim pastor, I work with congregations whose previous pastor has left. Maybe that pastor retired, died, took a new call elsewhere, or was run out of town on a rail. One of the things I often have to help the congregation deal with is conflict, either between the old pastor and the members, or between the members themselves. Whenever I hear “Yes, we had divisions, but now that the old pastor is gone, everything is just fine now” I have to figure out how get them to pull their heads out of the sand. “What’s going to happen when you disagree with your next pastor?” I ask them, knowing that for the immediate future, I am that next pastor. “What do you have to say to the folks around here who loved that old pastor and blame you for running that pastor off?”

Within the House of Windsor, simply coming up with the right seating chart at the funeral for Elizabeth will not wash away the pain that led the Duke and Duchess of Sussex to withdraw from royal duties and decamp to the US. Similarly, pardoning Trump, either by choosing not to prosecute or by an act of President Biden, will not heal the nation either.

What *will* help both the House of Windsor and the United States is to admit that divisions already exist.

Step Two in dealing with divisions, then, is to explore that divided reality. What, specifically, does that painful divided reality look like? What are the presenting issues, that anyone can see at the surface? What are the underlying issues, that lie deeper down, at the heart of the trouble? What are the triggers, that bring all that buried pain out into the open again? How is everyone being hurt by these divisions?

Looking at all that is not easy. It requires a willingness to dig into a painful past, to admit to past bad behavior (your own as well as that of others), and to accept just how bad things have gotten for everyone involved. Until you do that, all you are doing is papering over division and pretending things aren’t that bad.

In the US, the arguments about race and the causes of the Civil War are a perfect illustration of this. So long as a non-trivial part of the country denies that the Civil War was about slavery (“it was the war of Northern Aggression, fought over state’s rights”), our country will never be able to fully deal with how race continues to divide our country today. If you don’t think racism divides our country today, please go back to step one and try again.

Only when the divided congregation or family or nation has done the hard work of examining its own ugly past are they ready to move to Step Three.

Step Three is to look at what you’d like the future to be. What would a healthy House of Windsor look like? How would members treat one another, in ways that are different than what caused the fractures in the past? What would a healthy United States of America look like? How would those with different political views treat one another, in ways that are different from what caused the fractures in the past?

Step Four, then, is to figure out how to get to that future. That’s a conversation about rules, roles, and responsibilities, with unstated assumptions put out in the open and mixed expectations clarified. It’s about crafting behavior that rebuild trust, dignity, and belonging for everyone involved.

The big lesson in all of this is that THERE IS NO SHORTCUT.

You can’t just jump to step four, without doing all the work of the other three steps. You can try, but you’re just sticking your fingers in your ears and singing “La la la – I can’t hear you.” You don’t need to take my word for this. Just look at the House of Windsor.

When the Duke and Duchess of Sussex announced they were leaving their royal roles behind, that was Step One behavior. “Our family is painfully divided.” No more smiling masks, no more pretending all is well, and no more trying to ignore the pain.

When they sat down for their interview with Oprah, that was Step Two behavior. “Here’s what happened, at least from our point of view.”

Ever since then, the royal family had various private conversations to sort things out further, including such things as whether Harry and Meghan would be part of the Platinum Jubilee celebration last summer. (The answers at that time were that they were included in small family gatherings, but not the big public ones.) Now they are having similar conversations around the Queen’s funeral and the coming coronation ceremony that will follow in a few months. This is all Step Three and Step Four behavior.

To the extent that things are getting better for the House of Windsor, it’s because they’ve been working hard at Steps One through Three, not that they simply came together magically at a funeral and jumped to Step Four.

The US political press and political actors could learn a lot from the House of Windsor. Those who worry about prosecuting a past president need to recognize that this doesn’t cause division, but is a step along the way to healing – part of the hard work of Step Two that explores the divided reality in all its painful, ugly depth. The work of the January 6 Committee in the House of Representatives is Step Two behavior, and so is the work of the DOJ to investigate possible criminal behavior of the former president and his minions.

Until we as a nation are willing to honestly look at our ugly reality, we will never heal.

NARA May Have Pre-Existing Legal Obligations with Respect to Documents Covered by Aileen Cannon’s Order

September 7, 2022/11 Comments/in 2020 Presidential Election, emptywheel, Foreign Influence, January 6 Insurrection, Mueller Probe /by emptywheel

On Monday, Aileen Cannon told the government that it can only access 11,282 documents legally owned by the National Archives and currently possessed by DOJ to do an assessment of the damage Trump did by storing those records in a poorly-secured storage closet and desk drawer.

We’ll learn more in coming days about how the government will respond to Cannon’s usurpation of the President’s authority over these documents.

But I want to note that there may be competing legal obligations, on NARA at least, that may affect the government’s response.

NARA has been responding to at least four pending legal obligations as the fight over Trump’s stolen documents has gone on:

A series of subpoenas from the January 6 Committee that the Supreme Court has already ruled has precedence over any claims of privilege made by Trump
Two subpoenas from DOJ’s team investigating January 6, one obtained in May, covering everything NARA has provided to the J6C, and a second one served on NARA on August 17; these subpoenas would also be covered under SCOTUS’ ruling rejecting Trump’s privilege claims
Discovery in Tom Barrack’s case, whose trial starts on September 19 (DOJ informed Barrack they had requested Trump White House materials from NARA on April 5)
A subpoena from Peter Strzok in his lawsuit over his firing and privacy act violations

For all of them, NARA has a legal obligation that precedes Judge Cannon’s order. So if any of the material owned by NARA that Cannon has enjoined for Trump’s benefit is covered by these subpoenas and the Barrack discovery request, it will give NARA an additional need to intervene, on top of the fact that Cannon has made decisions about property owned by NARA.

I don’t hold out hope that the August 8 seizure has much pertaining to either January 6 investigation. Given that none of the boxes include clippings that post-date November, its unlikely they include government documents from the same period.

Plus, given the timing, I suspect the more recent subpoena from Thomas Windom to NARA pertains to materials turned over to NARA by Mark Meadows after the Mar-a-Lago search. Because Meadows originally turned those communications over to J6C directly, they would not have been covered by the prior subpoena, which obtained everything NARA turned over to J6C, which wouldn’t have included Meadows’ texts.

Meadows’ submission to the Archives was part of a request for all electronic communications covered under the Presidential Records Act. The Archives had become aware earlier this year it did not have everything from Meadows after seeing what he had turned over to the House select committee investigating January 6, 2021. Details of Meadows’ submissions to the Archives and the engagement between the two sides have not been previously reported.

“It could be a coincidence, but within a week of the August 8 search on Mar-a-Lago, much more started coming in,” one source familiar with the discussions said.

The second subpoena would have been served days after Meadows started providing these texts.

The possibility that some of the documents seized on August 8 would be discoverable in Barrack’s case is likely higher, particularly given the news that Trump had hoarded at least one document about “a foreign government’s nuclear-defense readiness.” Barrack is accused of working to influence White House policy on issues pertaining to UAE, Saudi Arabia, and Qatar that might be implicated by classified documents. If the date of clippings in a particular box reflect the age of the government documents also found in that box, then about 18 boxes seized in August (those marked in purple, above) include records from the period covered by Barrack’s superseding indictment.

That said, whether any such materials would count as being in possession of DOJ is another issue. They are currently in possession of team at DOJ that significantly overlaps with the people prosecuting Barrack for serving as an Agent of the Emirates without telling the Attorney General.

Strzok’s subpoena may be the most likely to cover materials either turned over belatedly or seized on August 8 (though his subpoena was scoped, with DOJ involvement, at a time after the FBI was aware of Trump’s document theft). It asks for:

Records concerning Sarah Isgur’s engagement with reporters from the Washington Post or New York Times about Peter Strzok and/or Lisa Page on or about December 1 and 2, 2017.
Records dated July 1, 2017 through December 12, 2017 concerning or reflecting any communications with members of the press related to Peter Strzok and/or Lisa Page.
Records dated July 1, 2017 through December 12, 2017 concerning or reflecting text messages between Peter Strzok and Lisa Page.
Records dated July 1, 2017 through August 9, 2018 concerning Peter Strzok’s employment at the FBI.

That materials covered by this subpoena made their way at some point to Mar-a-Lago is likely. That’s because of the obsession with records relating to Crossfire Hurricane in the days when Trump was stealing documents — virtually all of those would “concern” Strzok’s FBI employment.

In Mr. Trump’s last weeks in office, Mr. Meadows, with the president’s blessing, prodded federal law enforcement agencies to declassify a binder of Crossfire Hurricane materials that included unreleased information about the F.B.I.’s investigative steps and text messages between two former top F.B.I. officials, Peter Strzok and Lisa Page, who had sharply criticized Mr. Trump in their private communications during the 2016 election.

The F.B.I. worried that releasing more information could compromise the bureau, according to people familiar with the debate. Mr. Meadows dismissed those arguments, saying that Mr. Trump himself wanted the information declassified and disseminated, they said.

Just three days before Mr. Trump’s last day in office, the White House and the F.B.I. settled on a set of redactions, and Mr. Trump declassified the rest of the binder. Mr. Meadows intended to give the binder to at least one conservative journalist, according to multiple people familiar with his plan. But he reversed course after Justice Department officials pointed out that disseminating the messages between Mr. Strzok and Ms. Page could run afoul of privacy law, opening officials up to suits.

None of those documents or any other materials pertaining to the Russia investigation were believed to be in the cache of documents recovered by the F.B.I. during the search of Mar-a-Lago, according to a person with knowledge of the situation.

Side note: NYT’s sources are blowing smoke when they suggest DOJ under Trump would avoid new Privacy Act violations against Strzok and Page; a set of texts DOJ released on September 24, 2020 as part of Jeffrey Jensen’s effort to undermine the Mike Flynn prosecution had already constituted a new Privacy Act violation against them.

Notably, Strzok has been pursuing records about a January 22, 2018 meeting Jeff Sessions and Matt Whitaker attended at the White House.

Hours after that meeting (and a half hour call, from 3:20 to 3:50, between then Congressman Mark Meadows and the Attorney General), Jeff Sessions issued a press release about Strzok and Lisa Page.

Discovery has confirmed that the Attorney General released a press statement via email from Ms. Isgur to select reporters between 5:20 and 8:10 PM on January 22, roughly three hours after Attorney General Sessions returned from the White House. The statements promised, “If any wrongdoing were to be found to have caused this gap [in text messages between Mr. Strzok and Ms. Page], appropriate legal disciplinary action measure will be taken” and that the Department of Justice would “leave no stone unturned.” (See, e.g., Exhibit F). Based on Mr. Strzok’s review of the documents, it does not appear that this statement was planned prior to the January 22 White House meeting. It is not apparent from the documents produced in this action what deliberation lead to the issuance of that statement. For example, Mr. Strzok has not identified any drafts of the press release.

Any back-up to the White House side of that meeting — whether it has made its way back to NARA or not — would be included within the scope of Strzok’s subpoena. And even if NYT’s sources are correct that no Crossfire Hurricane documents were included among those seized in August (an uncertain claim given how much lying to the press Trump’s people have been doing), records covering Strzok’s firing would be broader than that.

The red rectangles, above, show the 17 documents seized in August for which the clippings would be in the temporal scope of Strzok’s subpoena.

I have no idea what happens if some of the boxes seized on August 8 include material responsive to these legal demands on NARA.

But if those boxes do include such materials, then it presents a competing — and pre-exisitng — legal obligation on the lawful owner of these records.

Update: Viget alerted me that I had not put an “X” by the leatherbound box reflecting its classified contents. I’ve fixed that!

“Desperate at Best:” Igor Danchenko Starts Dismantling John Durham’s Case against Him

September 4, 2022/21 Comments/in 2016 Presidential Election, emptywheel, Mueller Probe /by emptywheel

Since he was charged on November 3 last year, Igor Danchenko and his legal team have been virtually silent, mostly watching as John Durham’s team repeatedly failed to meet classified discovery dates.

But as we draw closer to the October 11 trial date, there has been more activity.

On August 1, there was a hilariously short status conference, all of four minutes, where Durham himself showed up. On August 21, Andrew DeFilippis — the most abusive of Durham’s prosecutors — dropped off the docket. Last week, Durham’s team asked for and got permission to file their motions in limine under seal — perhaps in an effort to avoid the inflammatory claims they made during the Michael Sussmann trial. Even the Classified Information Procedures Act (CIPA) conference, at which the two sides argued over how much classified information Danchenko needs at trial and whether the government can substitute information to make it less sensitive, seems to have ended inconclusively. Afterwards, Judge Anthony Trenga deferred decision until September 29, in part because the two sides are seemingly still trying to work things out amicably.

Before the hearing, the parties had successfully resolved all issues as to many of the listed documents and during that hearing, the parties agreed to engage in further discussions and efforts with respect to the remaining documents at issue, including Defendant’s willingness to withdraw his notice as to certain listed documents and the Government’s willingness to review the classified nature of certain listed documents and provide summaries with respect to other listed documents, following which Defendant will advise the Court concerning what further interest, if any, he has in using the listed documents at trial in light of the totality of the information provided to him by the Government.

In short, it has lacked all the pre-trial drama of the Sussmann case (perhaps because DeFilippis so badly overstepped, and still lost, in the Sussmann case).

But things may about to get interesting.

In a motion to dismiss the indictment filed Friday, Danchenko calls one of the government’s arguments (pertaining to the four Sergei Millian-related charges) “desperate at best.” The bases Danchenko challenges the indictment against him largely map some of the problems I laid out here: The questions FBI asked are not ones about the topics Durham has charged and Danchenko’s answers — he convincingly argues — were true.

For nearly a year, from January 2017 through November 2017, Mr. Danchenko sat through numerous voluntary FBI interviews and provided hours of truthful information to the government. Four years later, Special Counsel John Durham returned an indictment that alleges Mr. Danchenko knowingly made false statements about two matters when he: (1) acknowledged to the FBI that he talked with PR Executive-1 about issues “related” to the content of the Company Reports but stated that he did not talk about “specific” allegations contained in one of the reports; and (2) made four consistent statements to the FBI about his equivocal “belief” that an anonymous man who called him may have been Chamber President-1. These equivocal and ambiguous answers were prompted by fundamentally ambiguous questions, are literally true, and are immaterial as a matter of law.

Further, the government’s attempt here to stretch § 1001(a)(2) to a defendant’s equivocal and speculative statements about his subjective belief appears to be a first. And it would be a first for good reason. In order to meet its burden of proof in a case predicated on a subjective belief the government would need to prove not whether something did or did not happen but that the defendant did not truly subjectively believe what he said happened or did not happen. That would be a heavy burden in any case and it is an insurmountable one here.

Danchenko also argues (as Sussmann did) his claimed lies could not be material, in this case because Durham’s materiality claim is based in the influence of the Steele dossier, which (as Danchenko notes) he didn’t even know about, much less write.

Significantly, the indictment does not allege that Mr. Danchenko’s allegedly false statements themselves were material, but instead alleges only that the Company Reports, and the information contained in those reports, some of which allegedly came from Mr. Danchenko, were material.

In my series of posts on Danchenko’s case, I even missed some problems with the indictment. I had noted, for example, that Durham entirely misrepresented the question Danchenko was asked about Chuck Dolan on which Durham built one of the false statement charges. Durham claimed the FBI asked Danchenko if Dolan was a source for Danchenko. As I noted and as Danchenko does in this MTD, the question was actually whether Dolan was another sub-source directly for Christopher Steele.

But Danchenko notes two more problems with the charge.

First, he was asked whether Dolan and he “spoken” about the matters in the dossier; and to prove they did, Durham provides an email.

Count One alleges that Mr. Danchenko made a false statement when “he denied to agents of the FBI that he had spoken with PR Executive-1 about any [specific] material contained in the Company Reports, when in truth and in fact, and as the defendant well knew, PR Executive-1 was the source for an allegation contained in a Company Report dated August 22, 2016 and was otherwise involved in the events and information described in the reports.”

[snip]

For “proof” of the alleged false statement under this charge, the indictment relies on an email exchange between PR Executive-1 and Mr. Danchenko on or about August 19-20, 2016.

More problematic still, in context, the question was about whether Danchenko and Dolan had spoken about allegations that remained in the dossier after Steele wrote them up, a conversation that (because neither had seen Steele’s reports in real time) could only have taken place after January 11, when BuzzFeed published the dossier.

Next, when asked whether Mr. Danchenko and PR Executive-1 ever “talked . . . about anything that showed up in the dossier [Company Reports],” Mr. Danchenko responded, “No. We talked about, you know, related issues perhaps but no, no, no, nothing specific.” Indictment at 18 (emphasis added). The most reasonable reading of this question is whether Mr. Danchenko and PR Executive-1 talked about the Company Reports themselves after they were published. Mr. Danchenko’s answer to this question was literally true because he never talked to PR Executive-1 about the specific allegations contained in the Company Reports themselves, but they did talk about issues “related” to the allegations later published in those reports. Moreover, the specific question posed to Mr. Danchenko was whether Mr. Danchenko and PR Executive-1 “talked” about anything in the dossier. That part of the question was not ambiguous and, importantly, FBI Agent1 never asked whether Mr. Danchenko and PR Executive-1 had ever exchanged emails about information that showed up in the dossier. For that reason alone, evidence that PR Executive-1 allegedly emailed Mr. Danchenko about information contained in the Reports does not make Mr. Danchenko’s answer false

In arguing that his comments about Dolan weren’t material, Danchenko later confirms something I suspected: the FBI wasn’t much interested in the dossier report at the heart of Durham’s purported smoking gun evidence.

[T]he government apparently never even asked Mr. Danchenko about the specific information regarding Campaign Manager-1 that was contained in the relevant Company Report.

Remember: Durham tried to make this exchange stand in for the pee tape report (it worked with the press, too!!). But he didn’t actually charge anything pertaining to the pee tape.

Danchenko similarly notes that the government never asked Danchenko about something else Durham treated as a smoking gun: Emails from after the time, in July 2016, when Danchenko failed to meet someone he believed to be Sergei Millian, one of which Danchenko turned over himself in his first meeting with the FBI.

Danchenko was never asked about that email because it did nothing to clarify whether Chamber President-1 had been the anonymous caller and because it was, in truth and in fact, ultimately immaterial to the FBI’s investigation.

And with regards the Millian questions, Danchenko notes that Durham doesn’t even argue his responses were material. He instead argues the dossier was (though I think Durham will rebut this one).

As an initial matter, the indictment itself fails to even allege that Mr. Danchenko’s statements to the FBI were material. Instead, the indictment argues that the Company Reports created by U.K. Person-1 prior to Mr. Danchenko’s statements to the FBI were material:

(1) the FBI’s investigation of the Trump Campaign relied in large part on the Company Reports to obtain FISA warrants on Advisor-1, (2) the FBI ultimately devoted substantial resources attempting to investigate and corroborate the allegations contained in the Company Reports, including the reliability of Danchenko’s sub-sources; and (3) the Company Reports, as well as information collected for the Reports by Danchenko, played a role in the FBI’s investigative decisions and in sworn representations that the FBI made to the Foreign Intelligence Surveillance Court throughout the relevant time period. Indictment at 4.

The materiality of the Company Reports, if any, is irrelevant to the materiality of the statements that Mr. Danchenko later made to the FBI and cannot provide a basis for a false statement charge against Mr. Danchenko. 7

He notes, as I did, that his answers in interviews after the first two Carter Page applications could not have been material to those applications.

Motions to dismiss rarely work, and this one is unlikely to either (though I think Danchenko’s argument with respect to the Dolan charge is particularly strong).

But if Durham adheres to the same sloppiness they did in the Sussmann case, the MTD may be useful to Danchenko for other reasons, besides framing the case for Judge Trenga. MTDs are supposed to rely entirely on what is charged in the indictment. But in addition to the observations that Danchenko was asked neither about the Dolan email Durham has made central to the indictment nor Danchenko’s own emails after the failed July 2016 meeting in NYC, Danchenko’s argument is also premised on there not being further evidence to substantiate what appears on the face of the indictment. For example, if Durham had testimony from Dolan about conversations with Danchenko about the pee tape, Danchenko might not have argued as he has. And Danchenko explicitly states that the indictment does not claim a July 2016 phone call Danchenko believed to be from Millian did not happen — a weakness in the indictment I raised several times.

Notably, the indictment does not allege that Mr. Danchenko did not receive an anonymous phone call in or about late July 2016. Instead, the indictment alleges only that Mr. Danchenko “never received such a phone call or information from any person he believed to be Chamber President-1[.]” The alleged false statement is that Danchenko did not truly believe that the anonymous caller was Chamber President-1. The indictment also alleges that Mr. Danchenko “never made any arrangements to meet Chamber President-1.” However, Mr. Danchenko never stated that he made such arrangements. Rather, he told the FBI that he arranged to meet the anonymous caller, but the anonymous caller never showed up for the meeting.

Nine months into discovery, Danchenko would know for a fact if Durham had conclusive proof that he didn’t get a call. He’d probably know the substance of Dolan’s testimony against him.

But in response to an attack on the shoddiness of this indictment, Durham may well — as he did with Sussmann — talk about what they would prove at trial, not what was in the indictment. If Durham has proof the call didn’t happen or thinks he can argue it, he may well reveal it in response. In the Sussmann case, anyway, Durham didn’t have the goods.

And along the way, Danchenko has nodded to where this will go if the indictment is not dismissed. Most notably, Danchenko asserts, as fact, that the FBI investigation into Millian long preceded his interviews.

Indeed, the FBI was already investigating Chamber President-1’s potential involvement with Russian interference efforts long before it had ever interviewed or even identified Mr. Danchenko.

The scope and results of the investigation into Millian is presumably one of the classified details that Danchenko has argued (correctly) he needs at trial, and if he has, then Trenga will be quite familiar with the substance of the evidence. If Danchenko does make an argument about the folly of relying on Millian as a key witness, then Danchenko’s trial may be even more of an indictment of the Durham investigation than Sussmann’s was.

In fact, early in this motion, Danchenko makes the contrast I keep making: between Mueller’s substantive results and Durham’s failure thus far to undermine that substance with shoddy false statements indictments.

Between January and November 2017, Mr. Danchenko not only answered every question to the best of his ability, even when asked to speculate, but also provided emails and contact information for other potential sources of information in the Reports. The investigation into the Reports was ultimately completed by Special Counsel Robert S. Mueller, III, in or about November 2017 and the Special Counsel’s office closed its entire investigation into possible Trump/Russia collusion in March 2019. Approximately thirty-four individuals were charged by Mueller’s office, including several for providing false statements to investigators. Mr. Danchenko was not among them. To the contrary, not only did investigators and government officials repeatedly represent that Mr. Danchenko had been honest and forthcoming in his interviews, but also resolved discrepancies between his recollection of events and that of others in Mr. Danchenko’s favor.

In or about April 2019, and just one month after Mueller had concluded his investigation, then President Trump’s Attorney General, William Barr, tapped John Durham, the U.S. Attorney for the District of Connecticut, to review the origins of the Russia investigation and efforts by law enforcement to investigate the Trump campaign. Just prior to the end of former President Trump’s term, Barr appointed Mr. Durham Special Counsel to carry out his investigation. Through the instant indictment, the Durham Special Counsel’s Office now claims to have uncovered false statements made by Mr. Danchenko that the previous special counsel did not, despite relying substantially on the same evidence, the same statements, and the same agents involved in the Mueller investigation.

While he doesn’t say it explicitly, in several places Danchenko makes clear that both Mueller and Michael Horowitz will affirm that, for years, Danchenko was consistently viewed as candid and his candid views were material to both those investigations.

And because Durham is now claiming otherwise, based off issues that weren’t even of interest to investigators, Durham risks putting himself on trial in October.

How To Be a Handmaiden to Corruption, Barr Memo Press Coverage Edition

August 26, 2022/31 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

Much of the coverage of the Barr Memo — written over a weekend after a 7-hour review of the Mueller Report to justify a public statement to Congress exonerating the former President — continues to magnify the corruption of Barr’s act, rather than expose it.

The memo makes numerous factual errors (errors that can be easily documented thanks to a public record liberated by Jason Leopold). One Judge — Amy Berman Jackson — issued a ruling saying that the memo doesn’t do what it claimed it did (deliberate about whether Trump could be charged). She even included a timeline to show her work. Three more Circuit Judges agreed with ABJ’s opinion that DOJ misrepresented what they claimed they had done — by saying they were making a prosecutorial decision rather than a public messaging decision — in an attempt to keep the memo under wraps.

You’d think that after four judges had called out DOJ for shenanigans with this memo, anyone remotely interested in performing the function of journalism would explain why those judges found the project so suspect, and the import of that to the actual claims made in the memo. CREW spent years doing the hard work of liberating the memo to make it easy for journalists!

Instead, numerous outlets simply parroted the language of the memo that four judges had ruled to be a messaging project, thereby treating the memo as a valid exercise of legal analysis and not a performance of corruption.

I’d like to pay tribute to some of the outlets that chose to be a handmaiden to corruption rather than journalists.

I should say, while I bitched about it the day of the release, the NYT improved their story by adding the work of Charlie Savage. (early version; later version) It still treats the focus on Don McGahn as real rather than tactical and chooses to primarily quote experts explaining the problems with the memo rather than lay that out directly. But it notes (as I did) that the memo doesn’t explain something that was at the core of Mueller’s obstruction analysis — pardons. It provides actual reporting explaining that Merrick Garland’s DOJ wasn’t hiding the substance of this when they fought to keep it sealed last year, they were making a “narrower legal” argument — presumably trying to preserve the exemption it had been sealed under (the b5A deliberative privilege).

After losing in court on Friday, the Justice Department had the option to appeal the case. But the department’s senior leadership decided to release the document, according to a senior official in federal law enforcement. The leadership never opposed airing its contents, but had contested its release on narrower legal grounds, the person added.

Compare that with some of the stenography that remains untouched.

Eric Tucker, Memo sheds light on decision to clear Trump in Russia probe (AP)

Unsurprisingly, Eric Tucker ignores the opinions from four judges who called out this memo and spends three paragraphs ignoring the evidence that this was a hash job instead describing it as a record of “how two of the department’s senior-most leaders arrived at that conclusion,” something the judicial record says it’s not. He then spends seven paragraphs rehashing part of Steven Engel and Ed O’Callaghan’s argument, never calling out factual errors and ignoring their even more problematic treatment of witness tampering. Only after that does Tucker explain that two courts (he only mentions the Circuit) deemed that it had been improperly withheld, without explaining why. Finally, in the last two paragraphs, he quotes from CREW about the substance of the memo, as if he doesn’t have the competence to assess it himself.

Ryan Lucas, DOJ releases a Mueller-era memo to Barr on the decision not to prosecute Trump (NPR)

Unlike the AP, NPR didn’t claim, in its headline, that this memo actually did represent the decision-making process. But Ryan Lucas dedicated much of his story on the memo — paragraphs three and four, and then nine through eleven — parroting the claimed rationale of the lawyers. It describes the rebukes from the judges this way: “A district court judge and a panel of circuit court judges disagreed and ordered its release.” That leaves him free to pitch the question of Barr’s exoneration of Trump (which he calls “declin[ing] to prosecute Trump”) as a he-said, she-said affair, pitting CREW and 1,000 former prosecutors against Trump and his supporters. Lucas ends the piece by describing the current investigation into whether Trump violated the Espionage Act and obstructed an investigation by refusing to return classified documents an investigation into “storing presidential documents at his Mar-a-Lago residence.”

Robert Legare, Government lawyers advised Barr not to bring obstruction charges against Trump after Mueller report, newly-released memo reveals (CBS)

Of 28 paragraphs in this story, twelve report the claimed analysis of the memo unfiltered, as if it really was a predecisional declination memo, as if it really did analyze the entirety of the report, as if it was factually accurate. It dedicates four paragraphs to more recent efforts of Barr and the others involved to justify their decisions or separate themselves from Trump. Rather than describing the years-long fight featuring judges repeatedly calling out both the project of the memo itself and the means by which it was hidden, Legare described only that it, “was ordered unsealed by an Appeals Court after a FOIA request and subsequent lawsuit were filed seeking its release.” Ultimately, then, this article treats the memo as something the judges say it’s not — a view that would be reinforced by an assessment of the actual claims made against the now-public record of the investigation itself.

Ryan J. Reilly and Dareh Gregorian, DOJ releases unredacted memo to Barr on Trump, obstruction in Mueller probe (NBC)

Reilly interrupted breaking a story about an important January 6 militia arrest the other day to cover this live and did a pretty good job on the air. But in the write-up with Dareh Gregorian, they spend paragraphs three through eight quoting at length from the memo. Along the way, they claim the memo “dismiss[ed] Mueller’s concerns about Trump’s … dangling of pardons to some witnesses,” rather than calling it out for ignoring pardons entirely. While the piece noted that Barr “announced that the Justice Department would not prosecute the case the same day the memo was sent to him” and described ABJ’s ruling that, “Barr’s mind had already been made up before the memo was written,” thereby hinting that the memo was just a messaging project, they don’t consider the import of that sequence for the analysis itself. And rather than identifying the problems of the memo themselves, they describe that, “many people strongly disagreed with the analysis laid out in the memo,” and explicitly identify CREW as ” left-leaning,” treating the actual substance as something inaccessible to them and so just a matter for ongoing political dispute.

Alexander Mallin, DOJ releases memo behind Barr’s decision not to prosecute Trump for obstruction (ABC)

To his credit, in the five paragraphs describing what led to the release of the memo with which Alexander Malin starts his coverage, he describes the judges concluding that, “Barr and other DOJ officials were not candid in their statements about the role the memo played in their decision to not charge Trump.” Which makes it all the more mystifying why he dedicates eleven paragraphs of his story quoting the memo at length, with no fact-checking or push-back, as if it the memo really was real analysis that led to Barr’s decision to make an announcement that he wouldn’t have charged Trump if he could have.

I get it. This memo came out amid a flood of news, especially for those of us on the DOJ beat. I get that people rushed to do quick analyses so they could go back to watching dockets in Florida, Georgia, and DC.

But what happened with this memo — four judges overriding a b5 exemption based on their assessment that DOJ misrepresented the function of the memo — is virtually unprecedented. That, by itself, should lead reporters to scrutinize the memo (or at least the process) for the kind of dishonesty the judges judged it was, rather than treating it as a transparent record of legal analysis that ABJ already showed it’s not. All the more so when, as is the case here, thousands of pages recording the underlying evidence (evidence that the authors of the memo explicitly say they’re not going to cite) are publicly available.

If you’re reporting on a document that DOJ made false claims in an attempt to keep secret, parroting what it says at length, with no discussion of why DOJ made misrepresentations to keep it secret, with no effort on your own to test whether what it says is any more true than what was said to keep it hidden, you’re doing readers a disservice.

Four judges and CREW (plus Leopold, with his earlier Mueller Report FOIA) have given you an easy way to reassess what Bill Barr did to pre-empt the results of the Mueller Report in 2019. To instead simply repeat his past claims or those whom he ordered (and worked with) to justify a pre-ordained result is not journalism.

The Word “Pardon” Doesn’t Appear in the Barr Memo

August 25, 2022/27 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

As I noted in this post, there’s something missing in this passage — indeed, in the entirety of — the Barr Memo declining prosecution of former President Trump.

We likewise do not believe that the President’s public statements exhorting witnesses like Flynn, Manafort, Stone, or Cohen, not to “flip” should be viewed as obstruction of justice. The Report makes clear that the President equated a witness’s decision to “flip” with being induced by prosecutors to manufacture false evidence against others. We cannot say that the evidence would prove beyond a reasonable doubt that the President’s statements, most of which were made publicly, were intended to induce any of those witnesses to conceal truthful evidence or to provide false evidence. Once again, this conclusion is buttressed by the absence of any clear evidence that these witnesses had information that would prove the President had committed a crime. The President’s public statements could be viewed as efforts to defend himself from public criticism related to the Special Counsel’s investigation or to discourage the witnesses from making what the President believed might be false statements in exchange for a lesser sentence. Those statements do not warrant a prosecution for obstruction of justice.

The word “pardon.”

That’s important for two reasons. First, Barr said repeatedly, under oath, as part of his confirmation hearing, that trading false testimony for a pardon would be obstruction. Here’s what he said, for example, in response to a question from Lindsey Graham.

Lindsey: So if there was some reason to believe that the President tried to coach somebody not to testify or testify falsely, that could be obstruction of justice?

Barr: Yes, under that, under an obstruction statute, yes.

Here’s what he said to Patrick Leahy.

Leahy: Do you believe a president could lawfully issue a pardon in exchange for the recipient’s promise to not incriminate him?

Barr: No, that would be a crime.

And pardons are a critical part of the discussion in the Mueller Report to substantiate obstruction. The word pardon appears 67 times. Indeed, contrary to the discussion in the Barr Memo that claimed most of Trump’s witness-tampering happened in public, several of the discussions of pardons described in the Mueller Report involved non-public communication.

A voicemail that John Dowd left for Rob Kelner in November 2017 was presented as background to Trump’s public discussion of a pardon for Mike Flynn.

I understand your situation, but let me see if I can’t state it in starker terms. . . . [I]t wouldn’t surprise me if you’ve gone on to make a deal with . . . the government. . . . [I]f . . . there’s information that implicates the President, then we’ve got a national security issue, . . . so, you know, . . . we need some kind of heads up. Um, just for the sake of protecting all our interests if we can. . . . [R]emember what we’ve always said about the President and his feelings toward Flynn and, that still remains . . . .835

[snip]

On December 1, 2017, Flynn pleaded guilty to making false statements pursuant to a cooperation agreement.841 The next day, the President told the press that he was not concerned about what Flynn might tell the Special Counsel.842 In response to a question about whether the President still stood behind Flynn, the President responded, “We’ll see what happens.”843 Over the next several days, the President made public statements expressing sympathy for Flynn and indicating he had not been treated fairly.844 On December 15, 2017, the President responded to a press inquiry about whether he was considering a pardon for Flynn by saying, “I don’t want to talk about pardons for Michael Flynn yet. We’ll see what happens. Let’s see. I can say this: When you look at what’s gone on with the FBI and with the Justice Department, people are very, very angry.”845

Paul Manafort told Rick Gates that Trump was “going to take care of us,” which Gates took to suggest a pardon.

In January 2018, Manafort told Gates that he had talked to the President’s personal counsel and they were “going to take care of us.”848 Manafort told Gates it was stupid to plead, saying that he had been in touch with the President’s personal counsel and repeating that they should “sit tight” and “we’ll be taken care of.”849 Gates asked Manafort outright if anyone mentioned pardons and Manafort said no one used that word.850

And the private comments Robert Costello made to Michael Cohen — again in the context of Trump’s public comments about Cohen not flipping — led him to believe Trump would, at least, pay his defense fees.

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

By issuing his prosecution declination while Trump’s attempted witness tampering was still in progress, Barr ensured that the corrupt trade-off would and could be completed, at least with Flynn, Stone, and Manafort.

And in doing so, he ensured that ongoing investigations wouldn’t find precisely the evidence he was sure didn’t exist.

Bill Barr Performed the Corruption He Was Trying To Deny

August 25, 2022/45 Comments/in 2016 Presidential Election, emptywheel, Mueller Probe /by emptywheel

Perhaps I have a perverse sense of humor.

But between bouts of yelling about the Barr Memo, I’ve been laughing my ass off.

There are a number of reasons I’m laughing, some that I won’t share because I don’t want to spoil what I expect to be the punchline. But one reason I can’t stop laughing is that Robert Mueller managed to get Barr to perform — and put down in writing!! — precisely the corruption Mueller was trying to document: corrupt interference in a criminal prosecution.

I can’t imagine that Robert Mueller intended to elicit this response from Billy Barr and the lawyers who had been overseeing Mueller’s work for almost two years. But because they made the corrupt decision to override Mueller’s studied refusal to made a final conclusion about whether Trump committed obstruction (in my opinion, Mueller viewed Volume II of the Report as an impeachment referral and so did this for separation of powers reasons), they ended up putting together a shoddy memo justifying their decision.

One reason it worked out that way was because Barr and his flunkies were working quickly: a rushed effort over the course of the weekend to substantiate false claims to share with Congress.

According to Barr’s book, he remembers getting the Mueller Report around 1:30PM on March 22, 2019.

As Amy Berman Jackson laid out in a timeline accompanying her decision ordering the release of the memo, starting with a draft of the letter to Congress by Steven Engel at 8:36PM on March 22, 2019 and working through the weekend, five men including Engel (according to some emails quoted by ABJ, Barr was present as well) drafted both the letter to Congress and the declination memo in parallel.

As ABJ pointed out (this was a second basis on which she ruled that DOJ had to release the memo, one the DC Circuit said it didn’t need to consider given all the other reasons it had laid out to uphold her decision), the drafting of the letter to Congress — which she showed in the left column — actually preceded the memo — in the right column — advising Barr that because one goal under the Justice Manual is to,

promot[e] confidence on the part of the public and individual defendants that important prosecutorial decisions will be made rationally and objectively on the merits of each case,

Barr should,

examine the Report to determine whether prosecution would be appropriate given the evidence recounted in the Special Counsel’s Report, the underlying law, and traditional principles of federal prosecution.

The public record, then, shows Barr telling Congress about his prosecution declination before he decided to read the Report or even accept the recommendation of people who claimed to have read the Report. It was all completed over a weekend in which the people supposedly advising him were at the same time being directed by him, everyone together in the Attorney General’s conference room for the weekend.

The men finished their letter to Congress announcing that Trump had not committed any crime just after 4:30PM on Sunday and then finalized the declination memo first thing Monday morning.

These men weren’t reading the 400-page Report to figure out what it said (and there’s evidence that neither Rod Rosenstein nor Barr ever read it closely). They were instead trying to figure out how to debunk a Report they had skimmed over the course of seven hours.

And that haste showed up in several places in the memo.

There’s the admission that their recommendations were largely the part of earlier discussions, including from before Barr was hired (as Barr described it, one of the lawyers, Henry Whitaker got pulled in for the first time over the weekend), and therefore only partly about the Report itself.

Over the course of the Special Counsel’s investigation, we have previously discussed these issues within the Department among ourselves, with the Deputy Attorney General, and with you since your appointment, as well as with the Special Counsel and his staff. Our conclusions are the product of those discussions, as well as our review of the Report.

They repeat that admission to explain why they dedicate fully a third of the single page discussing legal precedents to a discussion that happened on July 3, 2018, before the evidence about the Stone interactions with Russia, Paul Manafort’s ties with Konstantin Kilimnik, and Michael Cohen’s interactions with the Kremlin were fully developed.

In our prior discussions, the Special Counsel has acknowledged that “we have not uncovered reported cases that involve precisely analogous conduct.” See Special Counsel’s Office Memorandum to the 600.4 File, Preliminary Assessment of Obstruction Evidence, at 12 (July 3, 2018).

And there’s the footnote explaining that they just weren’t going to cite any facts.

Given the length and detail of the Special Counsel’s Report, we do not recount the relevant facts here. Our discussion and analysis assumes familiarity with the Report as well as much of the background surrounding the Special Counsel’s investigation.

The other reason this memo embodies corruption is that corruption lays at the core of the statute Mueller rested his obstruction analysis on: 18 USC 1512(c)(2) — the same statute DOJ is using in the January 6 prosecutions. So Barr’s 9-page memo had to find a way to claim those actions weren’t corrupt, without entirely parroting the analysis he did in the audition memo he used to get the job, and without acknowledging Barr’s three statements — made under oath during his confirmation hearing — that trading pardons for false testimony would be obstruction (the word “pardon” does not appear in this memo).

Predictably, that discussion was really shoddy. In a key passage, for example, they adopt just one possible measure of corrupt intent, personal embarrassment, something that is only mentioned four times in the Report, always in conjunction with a discussion of at least marginal criminal exposure. Then they use that as a straw man central to their dismissal of Mueller’s lengthy analysis and their decision not to actually engage with Mueller’s analysis.

The Report thus suggests that the President’s exercise of executive discretion for any improper reason, including the prevention of personal embarrassment, could constitute obstruction of justice if it impeded a pending investigation. As we have discussed with you, we do not subscribe to such a reading of the obstruction-of-justice statutes. No reported case comes close to upholding a conviction of such breadth, and a line of Supreme Court precedent, including Arthur Anderson, weighs heavily in favor of objectivity and certainty in the federal criminal law. In order to reach the conclusions in this memorandum, however, we do not believe it necessary to address this disagreement further, because in our view, Volume II of the Report does not establish offenses that would warrant prosecution, even under such a broad legal framework.

Much of their subsequent analysis, dismissing the ten possible examples of obstruction in the Report, was simply factually inaccurate (and in once case, conflicted with something Barr’s own DOJ said a year later). It was not just the then-ongoing Roger Stone conspiracy investigation that refuted the claims Barr had rubber-stamped in secret, and it was not just the ongoing Roger Stone investigation that Barr later took unprecedented steps to thwart so as to protect his basis for exonerating the President. They made claim after claim that wasn’t even an accurate representation of the Report. Just as one measure, as noted, the memo doesn’t use the word pardon at all; the Mueller Report uses it 67 times.

It was only the expectation that all this would remain secret that let Barr and his flunkies entertain the fantasy that any of this could, “promot[e] confidence on the part of the public and individual defendants that important prosecutorial decisions will be made rationally and objectively on the merits of each case.” So they had to keep it secret.

And so, after it was written, a snowball of additional corruption followed, with DOJ making false claims about what was in the memo, and DOJ making more false claims, and Barr taking extraordinary steps to try to ensure that later facts didn’t prove him wrong.

But you don’t have to go further than these nine pages to see that this intervention just dripped with the corruption they were trying to deny.

The Barr Memo Relied on Covering Up the Ongoing Roger Stone Conspiracy Investigation

August 24, 2022/54 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

DOJ has released the memo that Ed O’Callaghan and Steven Engel used to claim there wasn’t evidence to charge Trump with obstruction.

A key part of it is a claim that the evidence in Volume I was “conclusive” that there wasn’t evidence to charge any of Trump’s flunkies with conspiring with Russia.

Only at least O’Callaghan knew that the evidence wasn’t conclusive. On Page 178, the Mueller Report they claimed was conclusive revealed that they had referred Stone for further investigation into whether he had conspired with Russian to hack.

The Office determined that it could not pursue a Section 1030 conspiracy charge against Stone for some of the same legal reasons. The most fundamental hurdles, though, are factual ones.1279

1279 Some of the factual uncertainties are the subject of ongoing investigations that have been referred by this Office to the D.C. U.S. Attorney’s Office.

DOJ covered that footnote up for another 20 months, releasing it only the day before the 2020 election.

From that point forward, Barr had to make sure that DOJ wouldn’t pursue that investigation into Stone, because it would expose the lie at the core of his cover-up.

A Roger Stone Pardon for MacronLeaks Isn’t As Crazy as It Sounds

August 23, 2022/55 Comments/in 2016 Presidential Election, 2020 Presidential Election, emptywheel, Mueller Probe /by emptywheel

In April 2020, DOJ released the warrants from the Roger Stone investigation. With six of those, DOJ redacted broad swaths of the justifications behind the warrants, none of which were shared with him as part of his obstruction prosecution.

September 26, 2018: Mystery Twitter Account

September 27, 2018: Mystery Facebook and Instagram Accounts

September 27, 2018: Mystery Microsoft include Skype

September 27, 2018: Mystery Google

September 27, 2018: Mystery Twitter Accounts 2

October 5, 2018: Mystery Multiple Googles

All six were obtained by Patrick Myers, an FBI agent located in Pittsburgh, whereas almost all the warrants obtained before that were signed by agents located in DC (in earlier weeks, Myers had also obtained a warrant targeting a second account used by the GRU persona, Guccifer 2.0).

In his order releasing the warrants, Judge Christopher Cooper explained that all the redacted information (and so the information justifying these warrants) was redacted to protect, “the private information of non-parties, financial information, and non-public information concerning other pending criminal investigations.”

One of those warrants explicitly said that the government requested a gag on the provider involved (in that case, Twitter) because Roger Stone seemed not to understand the full extent of the investigation into him.

It does not appear that Stone is currently aware of the full nature and scope of the ongoing FBI investigation. Disclosure of this warrant to Stone could lead him to destroy evidence or notify others who may delete information relevant to the investigation.

In addition to the crimes for which Mueller declined to charge Stone (foreign donations) or of which he was convicted (witness tampering and obstructing an investigation), the warrant sought evidence of conspiracy (18 USC 371), two foreign agent laws (18 USC 951 and 22 USC 611), and computer hacking (18 USC 1030).

These warrants strongly suggest that in April 2020, as Bill Barr was making unprecedented efforts to limit Stone’s punishment for the crimes of which he had been convicted, DOJ continued to investigate whether Stone conspired with foreign entities — and given that a Guccifer 2.0 warrant is among this series, Russia would be that foreign entity — to engage in computer hacking.

That’s important background to the seizure from Trump’s office of document reflecting Executive Clemency for Stone that appears to have a link to a French President, possibly Emmanuel Macron.

If Stone were involved with the MacronLeaks operation on which the GRU teamed up with alt-Right figures in Stone’s orbit, it’s conceivable Trump secretly pardoned him to prevent him from being included in the indictment covering that operation.

Based on the FOIA exemptions in various versions of the Mueller Report released, the Stone investigation that continued after Mueller closed up shop appears to have been closed between September 18, 2020 and November 2, 2020. On the latter date — literally the day before the 2020 election — DOJ provided Jason Leopold a version of the Mueller Report with newly-unsealed passages. It revealed for the first time that, on page 178, a footnote modified the discussion in the body of the Report about whether Stone could be prosecuted for conspiring with Russia on computer hacking by explaining that Mueller had referred the issue to DC US Attorney’s Office for further investigation.

The Office determined that it could not pursue a Section 1030 conspiracy charge against Stone for some of the same legal reasons. The most fundamental hurdles, though, are factual ones.1279

1279 Some of the factual uncertainties are the subject of ongoing investigations that have been referred by this Office to the D.C. U.S. Attorney’s Office.

A version of the report released to Leopold on June 3, 2019 redacted that footnote because of an ongoing investigation. And a spreadsheet justifying all continued redactions released on September 18, 2020 seems to have redacted it too. The unredacted publication of it on November 2, 2020 suggests whatever investigation in Stone DOJ had been pursuing had been closed.

Stone’s wasn’t the only investigation that got shut down in the months before Donald Trump would lose the presidency. In that period, previously redacted references to investigations into two of Paul Manafort’s businesses, and an investigation into a suspected $10 million cash infusion during the 2016 election from an Egyptian state-owned bank were unsealed — though both were unsealed by the time of that September filing. There was even reference to a warrant for Erik Prince’s phone, suggesting any investigation into him had similarly been shut down.

What made Stone’s case different, however, is that DOJ never told us what the investigation was about (indeed, two referrals that likely pertain to Stone were redacted in that November 2020 release, which they shouldn’t have been if the cases were really closed).

The most important referral from the Mueller investigation, then — the one that Billy Barr was hired to make go away — simply got deep-sixed sometime in the months when it looked like Trump would lose the election, with no explanation as to what the investigation even was. And, again, it appears to have happened between September 18 and November 2, 2020.

As it happens, DOJ rolled out an indictment against GRU on October 19, just 15 days before the election (and just 14 days before DOJ released the language pertaining to Stone). It covered six GRU attacks, though focused especially on the 2018 Olympic Destroyer attack on the Pyeongchang Olympics.

But it included, almost as a throwaway, GRU’s role in the 2017 MacronLeaks campaign. By description, it held just one of the charged individuals accountable for the spearphishing part of the MacronLeaks campaign: Anatoliy Kovalev, the one guy (as noted) also charged in the DNC hack.

Defendant ANATOLIY SERGEYEVICH KOVALEV was a Russian military intelligence officer assigned to Military Unit 74455. KOVALEV sent spearphishing emails targeting a wide variety of entities and individuals, including those associated with French local government entities, political parties, and campaigns; the 2018 Winter Olympics; the DSTL; and a Georgian media entity. KOVALEV also engaged in spearphishing campaigns for apparent personal profit, including campaigns targeting large Russian real estate companies, auto dealers, and cryptocurrency miners, as well as cryptocurrency exchanges located outside of Russia. KOVALEV is a charged defendant in federal indictment number 18-CR-215 in the District of Columbia. [my emphasis]

In the Mueller indictment of the GRU, Kovalev is described as the guy responsible for the hacking that targeted voting infrastructure — the kind of stuff that really could have affected the outcome, especially in North Carolina.

72. In or around July 2016, KOVALEV and his co-conspirators hacked the website of a state board of elections (“SBOE 1”) and stole information related to approximately 500,000 voters, including names, addresses, partial social security numbers, dates of birth, and driver’s license numbers.

[snip]

75. In or around October 2016, KOVALEV and his co-conspirators further targeted state and county offices responsible for administering the 2016 U.S. elections. For example, on or about October 28, 2016, KOVALEV and his co-conspirators visited the websites of certain counties in Georgia, Iowa, and Florida to identify vulnerabilities.

76. In or around November 2016 and prior to the 2016 U.S. presidential election, KOVALEV and his co-conspirators used an email account designed to look like a Vendor 1 email address to send over 100 spearphishing emails to organizations and personnel involved in administering elections in numerous Florida counties. The spearphishing emails contained malware that the Conspirators embedded into Word documents bearing Vendor 1’s logo.

The Olympic Destroyer indictment obtained weeks before the election held Kovalev (and the GRU) accountable for the spearphish and communications with some French participants.

27. From on or about April 3, 2017, through on or about May 3, 2017 (during the days leading up to the May 7, 201 7, presidential election in France), the Conspirators conducted seven spearphishing campaigns targeting more than 100 individuals who were members of now-President Macron’s “La Republique En Marche!” (“En Marche!”) political party, other French politicians and high-profile individuals, and several email addresses associated with local French governments. The topics of these campaigns included public security announcements regarding terrorist attacks, email account lockouts, software updates for voting machines, journalist scoops on political scandals, En Marche! press relationships, and En Marchel internal cybersecurity recommendations.

28. KOVALEV participated in some of these campaigns. For example, on or about April 21, 2017, KOVALEV developed and tested a technique for sending spearphishing emails themed around file sharing through Google Docs. KOVALEV then crafted a malware-laced document entitled “Qui_peut_parler_ aux journalists.docx” (which translates to “Who can talk to journalists”) that purported to list nine En Marche! staff members who could talk to journalists about the previous day’s terrorist attack on the Champs-Elysees in Paris. Later that day, the Conspirators used an email account that mimicked the name of then-candidate Macron’s press secretary to send a Google Docs-themed spearphishing email to approximately 30 En Marche! staff members or advisors, which purported to share this document.

29. From on or about April 12, 2017, until on or about April 26, 2017, a GRU-controlled social media account communicated with various French individuals offering to provide them with internal documents from En Marche! that the user(s) of the account claimed to possess.

But it professed utter and complete ignorance about how the stolen documents started to get leaked.

30. On or about May 3 and May 5, 2017, unidentified individuals began to leak documents purporting to be from the En Marche! campaign’s email accounts.

But they weren’t unidentified, at least not all of them! As a DFIR report released 15-months before this indictment laid out, while there was a Latvian IP address that hadn’t been publicly identified at that point (one the FBI surely had some ability to unpack), the American alt-right, including Stone associate Jack Posobiec, made the campaign go viral, all in conjunction with WikiLeaks.

First there was a rumor spread from that Latvian IP to 4Chan to William Craddick to Jack Posobiec.

Last but not least came the “#MacronGate” rumor. Two hours before the final televised debate between Macron and Le Pen, on Wednesday, May 3, at 7:00 p.m.,41 a user with a Latvian IP address posted two fake documents on 4chan. The documents suggested that Macron had a company registered in Nevis, a small Caribbean island, and a secret offshore bank account at the First Caribbean Bank, based in the Cayman Islands. Again, the rumor itself was not entirely new. Macron himself had seen it coming. More than two weeks earlier on TV he warned that this type of rumor was likely to appear: “This week, you will hear ‘Mr. Macron has a hidden account in a tax haven, he has money hidden at this or that place.’ This is totally false, I always paid all my taxes in France and I always had my accounts in France.”42 What was new this time, however, was the release of two documents supposedly proving this rumor. The user who posted the two documents on 4chan did it purposefully on the evening on the final televised debate to attract more attention, and even suggested a French hashtag: “If we can get #MacronCacheCash trending in France for the debates tonight, it might discourage French voters from voting Macron”43.

Then the rumor spread on Twitter. The 4chan link was first posted by Nathan Damigo, founder of the American neo-Nazi and white-supremacist group Identity Evropa, and was further circulated by William Craddick, founder of Disobedient Media and notorious for his contribution to the Pizzagate conspiracy theory that targeted the US Democratic Party during the 2016 American presidential campaign. The first real amplifier was Jack Posobiec—an American alt-right and pro-Trump activist with 111,000 followers at the time: his tweet was retweeted almost 3,000 times. Only after 10:00 p.m. did the rumor begin to spread in French, mostly through far-right accounts using the #MacronCacheCash hashtag. The first tweets in French seemed to have been automatically translated from English.44

[snip]

The same user with the Latvian IP address who posted the fake documents on Wednesday announced on Friday morning that more were coming, promising, “We will soon have swiftnet logs going back months and will eventually decode Macron’s web of corruption.”49 Those responsible for #MacronGate thereby provided evidence that they were the same people responsible for the #MacronLeaks that were released later that day.

Then there were the leaked files themselves, which followed the same pattern: an anonymous leak to Craddick to Posobiec to WikiLeaks.

The files were initially posted on Archive.org, an online library site, supposedly in the morning63 (the time of first release on the website cannot be determined, as these original threads have since been deleted). At 7:59 p.m., the links to the threads were posted on PasteBin, a file-sharing site, under the name “EMLEAKS.” At 8:35 p.m., they were shared on 4chan. Then came their appearance on Twitter: Craddick was again the first to share the link to the PasteBin dump at 8:47 p.m., quickly followed by Jack Posobiec at 8:49 p.m., who provided a link to the 4chan thread with, for the first time, the hashtag #MacronLeaks.64 Contrary to what would later become a widespread misconception, Posobiec was not the first to tweet, Craddick was. However, Posobiec was the first to use the hashtag that would lend its name to the entire operation, hence the confusion. Posobiec’s tweet and hashtag was retweeted eighty-seven times within five minutes. He later said he had been alerted to the incoming dump by the user with a Latvian IP address who had posted the #MacronGate fake documents two days prior: “The same poster of the financial documents said to stay tuned tomorrow for a bigger story–so I pretty much spent the next 24 hours hitting refresh on the site.”65

So far, this conversation was exclusively Anglophone. This makes it clear that the hashtag #MacronLeaks was launched and spread in the United States, by the American alt-right. It was WikiLeaks that internationalized the spread, at 9:31 p.m., by tweeting: “#MacronLeaks: A significant leak. It is not economically feasible to fabricate the whole. We are now checking parts,” with a link to the files on PasteBin. Only then came the first French amplifiers, who happened to be Le Pen supporters

MacronLeaks was, openly and proudly, a joint venture between the GRU, far right influencers in Stone’s immediate orbit, and WikiLeaks. It was an attempt to repeat the 2016 miracle that elected Donald Trump, by supporting the Russian-supporting Marine Le Pen by damaging Macron.

There’s something unusual about the indictment, too. Alone among the indictments obtained by the Pittsburgh US Attorney’s office that month (October 2020), it was the single one signed in wet blue ink by the US Attorney, Scott Brady. Both the copy released by DOJ and the one docketed in PACER also lacked a jury foreperson’s signature.

Admittedly, most of the indictments WDPA obtained that month were fairly podunk crimes that wouldn’t need heightened security: a fentanyl dealer, a cocaine dealer, two unhoused men charged with theft, an aggravated assault, manufacturing a controlled substance, Social Security fraud, VA benefit fraud, all were signed in black ink, at least some of them electronically. But a child sexual trafficking indictment and a CSAM possession indictment, both originally filed under seal, also bear the foreperson’s signature and that black ink signature. Even a ransomware indictment rolled out nationally on October 15 — which would have the same kind of international sensitivities and national coordination as the GRU indictment — had a normal jury foreperson’s signature.

While Brady was not a surprising choice for US Attorney in Pittsburgh (he had previously been an AUSA), he was perhaps the most politicized of Trump’s US Attorneys. He’s the guy whom Barr put in charge of ingesting the dirt on Hunter Biden that Rudy Giuliani was getting from suspected Russian agents.

To be clear: There’s no public allegation that Stone had anything to do with MacronLeaks, though HateWatch places him at a Milo Yiannopoulos party where MacronLeaks appears to have come up, after the leaks but before the French election. I’m not saying that Stone was involved in the MacronLeaks operation.

But the response to the Stone reference in the subpoena receipt has assumed that the Stone reference cannot be related to the French President reference, all assumptions made by journalists that never covered the ongoing aspects into whether Stone conspired with Russia on a hack. If Trump did issue his rat-fucker a secret pardon for follow-on cooperation with Russian hackers, though, it would explain a number of things about the aftermath of the Mueller investigation, including what happened to the investigation into whether Stone conspired with Russia on hacking campaigns.

For his part, Trump included a bit of a tirade about the Stone reference in his motion for a Special Master last night.

In addition, did the affiant to the warrant fairly disclose any pretextual “dual” purpose at work in obtaining the warrant? For example, the Receipt for Property largely fails to identify seized documents with particularity, but it does refer to the seizure of an item labelled “Executive Grant of Clemency re: Roger Jason Stone, Jr.” Aside from demonstrating that this was an unlawful general search, it also suggests that DOJ simply wanted the camel’s nose under the tent so they could rummage for either politically helpful documents or support other efforts to thwart President Trump from running again, such as the January 6 investigation.

This is legally and politically nonsensical. If the pardon is the known pardon, then it’s not politically damaging at all. If it’s a real pardon of any kind — as a pardon written on a cocktail napkin arguably would be — then it’s a Presidential Record and squarely within the scope of the warrant (which permits seizure of any Presidential record created during Trump’s term). If the information about the French President is part of the document and appears to be sensitive, then it would qualify as a likely classified document. If the pardon were found in Trump’s safe next to his leatherbound box of TS/SCI documents, then it would be covered by the proximal search protocol laid out in the warrant. The pardon was legally seized.

Trump’s claims are nonsensical. But they’re also the the kind of squealing that invites further attention to what the clemency document really is.

On the Belated Education of John Durham

Durham Admits He Has No Real Evidence on Four Millian Counts against Igor Danchenko

Earlier emptywheel coverage of the Danchenko case

What Family Rifts at Funerals can Teach Us About Pardoning Presidents

NARA May Have Pre-Existing Legal Obligations with Respect to Documents Covered by Aileen Cannon’s Order

“Desperate at Best:” Igor Danchenko Starts Dismantling John Durham’s Case against Him

How To Be a Handmaiden to Corruption, Barr Memo Press Coverage Edition

The Word “Pardon” Doesn’t Appear in the Barr Memo

Bill Barr Performed the Corruption He Was Trying To Deny

The Barr Memo Relied on Covering Up the Ongoing Roger Stone Conspiracy Investigation

A Roger Stone Pardon for MacronLeaks Isn’t As Crazy as It Sounds

Interesting links

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