Konstantin Kilimnik’s PRISM-Accessible Communications

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I doubt I’ll be done working my way through the new Paul Manafort and Rick Gates charges before such analysis would be overtaken by events (like the on-again flip of Gates). For now, Quinta Jurecic’s analysis is quite good.

Before I start, though, I want to go back and look at a detail from the Alex van der Zwaan plea materials (information, plea, statement of offense).

Best as we understand, former Skadden associate van der Zwaan pled guilty, with no forward cooperation requirement, for having hidden some communications he had with Rick Gates, Greg Craig (who must be the senior partner described), and Konstantin Kilimnik (believed to be Person A) in September 2016 about the aftermath of a report Skadden had done on the prosecution of Yulia Tymoshenko.

In or about September 2016, VAN DER ZWAAN spoke with both Gates and Person A regarding the Report. In early September 2016, Gates called VAN DER ZWAAN and told him to contact Person A. After the call, Gates sent VAN DER ZWAAN documents including a preliminary criminal complaint in Ukraine via an electronic application called Viber. VAN DER ZWAAN then called Person A and discussed in Russian that formal criminal charges might be brought against a former Ukrainian Minister of Justice, Law Firm A, and Manafort. VAN DER ZWAAN recorded the call. VAN DER ZWAAN then called the senior partner on the Report at Law Firm A and partially recorded that call. Finally, VAN DER ZWAAN called Gates and recorded the call. VAN DER ZWAAN also took notes of the calls.

Prior to the November 3, 2017, interview, VAN DER ZWAAN did not produce to Law Firm A and deleted and otherwise did not produce emails he possessed that he understood had been requested by either the Special Counsel’s Office or Law Firm A, or both, including an email in Russian dated September 12, 2016 in which Person A asked VAN DER ZWAAN to contact Person A and to use an encrypted application.

One thing Van der Zwaan would have hidden was that he communicated with Gates after Paul Manafort had left the campaign, September 2016, as the Trump campaign was trying to clean up their taint from Manafort’s Ukraine stench.

Given the details in the information, it appears that in his November 3, 2017 interview, after he lied about when he had most recently talked with Kilimnik and Gates, he was asked about the email he didn’t turn over to Skadden and the government.

During the November 3, 2017, interview, VAN DER ZWAAN knowingly and intentionally falsely stated the following:

a. his last communication with Gates was in mid-August 2016, which consisted of an innocuous text message;

b. his last communication with a longtime business associate of Manafort and Gates in Ukraine (Person A) was in 2014, when he talked with Person A about Person A’s family; and

c. he did not know why Law Firm A had not produced to the Special Counsel’s Office a September 2016 e-mail between him and Person A.

This seems to suggest that before the end of Van der Zwaan’s first interview, they already confronted him with the fact that he was lying.

But that wasn’t his only interview. Van der Zwaan had a second interview (where he apparently added to his lies) on December 1. (NYCSouthpaw made this observation.)

I’ll probably return to the second interview.

For now, what I’m primarily interested in is that on November 3, 2017, the government had the email between Van der Zwaan and Kilimnik where the latter told the former to move their conversation to an (unnamed) encrypted app, and by the end of the interview confronted him with that fact.

I previously noted (with surprise) that Kilimnik used Gmail for his November 2017 correspondence with Paul Manafort helping to edit an op-ed to push back against his charges. If Manafort didn’t already know the Feds had obtained a bunch of Gmail (and — as  yesterday’s superseding indictment makes clear, his own firm’s email), a sealed December 8 declaration that was unsealed on January 3 would have made that clear.

It continues to surprise me that these thugs never thought about how accessible PRISM-based communications were to the Feds, unless Kilimnik has reason to be happy that his American correspondents will be seen by the FBI.

I guess it’s not just Hope Hicks who underestimates how accessible email is to criminal investigators.

So — What’s New, Rick? Paul? Fresh Indictments Today on Bank, Tax Fraud

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Open thread for you folks to talk about the latest developments in the Trump-Russia investigation.

Earlier this afternoon, U.S. District Court Judge Amy Berman Jackson rejected the bail package offered by Paul Manafort as the property offered as collateral wasn’t free and clear.

From reports about this rejection there were hints another shoe would drop soon.

Bingo — multiple counts of bank and tax fraud levied against each and both Manafort and his partner, Rick Gates.

Manafort was charged with a count each for each year:
Subscribing to False U.S. Individual Income Tax Returns for years 2010, 2011, 2012, 2013, 2014
Failure to File Reports of Foreign Bank and Financial Accounts for years 2011, 2012, 2013, 2014

Gates was charged with a count each for year:
Assisting in the Preparation of False U.S. Individual Income for 2010, 2011, 2012, 2013, 2014
Subscribing to False U.S. Individual Tax Returns for years 2010, 2011, 2012, 2013, 2014
Subscribing to False Amended U.S. Individual Tax Returns for 2013
Failure to File Reports of Foreign Bank and Financial Accounts for 2011, 2012, 2013

Both Gates and Manafort were charged with one count for each year:
Bank Fraud Conspiracy (Lender B/$3.4 million)
Bank Fraud (Lender B/$3.4 million)
Bank Fraud Conspiracy (Lender C/$1 million)
Bank Fraud (Lender C/$1 million)
Bank Fraud Conspiracy (Lender B/$5.5 million)
Bank Fraud Conspiracy (Lender D/$9.5 million)
Bank Fraud (Lender D/$9.5 million)
Bank Fraud Conspiracy (Lender D/$6.5 million)
Bank Fraud (Lender D/$6.5 million)

That’s 18 counts for Manafort, 23 counts for Gates. (Do check my math, I am working off a ridiculously small mobile device screen – thanks!)

These charges open many questions, but perhaps we ought to spend our time looking at the indictment itself. I know you’ll find parts amusing.

You can read it at this link (pdf).

Quentin Hardy observed via Twitter:

Nice touch in the new indictment: Manafort has “a lavish lifestyle,” while Gates is portrayed as just a simple suburban money launderer.

Better buy up extra popcorn, gang. We’re going to need it.

Speaking of Manafort’s Efforts to Make Bail Doing Him In

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Mueller watchers are abuzz with the news that the Special Counsel filed new, sealed charges in the Paul Manafort/Rick Gates docket. The move comes in advance of Gates’ 5PM deadline to tell the court which lawyers he’s going to the prom with.

As Josh Gerstein noted, the new charges might be related to new evidence obtained relating to some bank fraud.

Last week, prosecutors told the court they’d received new evidence that Manafort took part in “a series of bank frauds and bank fraud conspiracies” in connection with a loan he sought in 2016. Mueller’s team said Manafort obtained the loan using “doctored profit and loss statements” that overstated “by millions of dollars” the income of his consulting business.

The bank fraud allegations were disclosed in a bail-related court filing made public on Friday that did not contain any indication of what action, if any, Mueller’s team planned to take over the alleged fraud.

Meanwhile, NBC reports that Mueller’s team has been focusing on loans Manafort obtained in the wake of leaving the campaign that might be that newly identified fraud; they suggest Manafort may have promised the banker who made the loans a position in the Trump White House.

Manafort received three separate loans in December 2016 and January 2017 from Federal Savings Bank for homes in New York City, Virginia and the Hamptons.

The banker, Stephen Calk, president of the Federal Savings Bank, was announced as a member of candidate Trump’s Council of Economic Advisers in August 2016.

Special counsel Robert Mueller’s team is now investigating whether there was a quid pro quo agreement between Manafort and Calk. Manafort left the Trump campaign in August 2016 after the millions he had earned working for a pro-Russian political party in Ukraine drew media scrutiny. Calk did not receive a job in President Donald Trump’s cabinet.

They point specifically to loans for which Manafort used his Hamptons and Alexandria homes — the same homes at the center of his effort to make bail — as collateral.

Manafort’s LLC, Summerbreeze, then took out a new $9.5 million loan in December using the Hamptons property and house in Alexandria, Virginia, as part of the collateral. The lender was Federal Savings Bank of Chicago, whose chief executive, Calk, was an economic adviser to the Trump campaign.

Yesterday, Manafort submitted additional paperwork on the collateral for precisely this loan.

The business attorney who handled the mortgage refinancing transaction relating to the Bridgehampton, NY property was contacted upon the conclusion of the hearing held on February 14, 2018 and asked to provide an analysis of the mortgage loan documents and the parties’ understanding at the time, of which he had first-hand knowledge. Specific attention to the additional collateral provided by the Alexandria property was requested. The attorney’s letter, with exhibits, is attached to this submission. (See Attachment A.)

Although the document speaks for itself, in general, the business attorney confirms the following: the primary collateral for the Bridgehampton loan refinancing was the real property itself, valued at [redacted], and the substantial deposit account of [redacted] established with the lending institution to be used by the bank in the event of a default on the mortgage. Importantly, the lawyer notes that “[t]he property at [redacted–his Alexandria property], is merely additional collateral with no expectation that its foreclosure would be necessary in the event of a default. These facts were discussed between myself and representatives of FSB well before the closing of the loan, and the loan documents were prepared accordingly.”

Next, the defendant wishes to advise that upon further investigation and inquiry with Mr. Manafort’s business attorney, the [redacted] on deposit with the lender was tied to the Union Street property in New York, not the Bridgehampton property. Regardless of the defendant’s intent to use these deposited funds – upon the satisfaction of certain requisite conditions – for the payment of Bridgehampton loan expenses, there is no contractual or legal obligation to do so in a hypothetical default scenario. Nevertheless, as the letter states, the appraised value of the Bridgehampton property plus the deposit account noted above totals [redacted] and would be more than sufficient to satisfy the [redacted] loan to Summerbreeze, LLC. Id.

After Manafort submitted that, the government asked for and obtained access to the sealed transcripts from that hearing.

Which is to say, the government has gotten sworn statements about the property Manafort has been trying to use to make bail, statements that, if he is found to lie on them, he’ll lose his current release conditions.

Call me crazy, but I think Manafort might finally spend his first night in jail.

Not to mention Manafort and these bankers are probably in a bigger heap of trouble.

I’m betting he’s going to get a lot closer to flipping after he spends a bit of time in jail.

Jared’s Clearance and the Foreign Policy Version of Conspiracy to Defraud America

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I confess there is no multi-day Trump story I’ve looked forward to more than the problem with Jared Kushner’s clearance. And it is officially here. Last night, the NYT described how Jared is butting heads with John Kelly over whether he’ll lose clearance under Kelly’s post-Rob Porter mandate that people who can’t be cleared won’t be kept around anymore.

Kushner, frustrated about the security clearance issue and concerned that Mr. Kelly has targeted him personally with the directive, has told colleagues at the White House that he is reluctant to give up his high-level access, the officials said. In the talks, the officials say, Mr. Kushner has insisted that he maintain his current level of access, including the ability to review the daily intelligence briefing when he sees fit.

Today CNN and WaPo weigh in, with CNN nodding towards the conflict this will present Trump.

Though a source familiar with the situation said Kushner has not yet appealed to the President directly about his access to highly classified information, those close to Trump believe he would be inclined to grant his son-in-law access if asked. This source pointed to the fact that Kushner is part of the President’s family and has outlasted all of his rivals in Trump’s inner circle, including former chief of staff Reince Priebus, former chief strategist Steve Bannon, former campaign manager Corey Lewandowski and former deputy campaign manager David Bossie.

Trump, however, has given Kelly his full support in efforts to reform the White House’s system of security clearances, and has told his chief of staff that changes need to be made to bring the system into order, according to a person who has spoken to him about the matter. Kelly has interpreted that as a wide-ranging mandate that would include Kushner, a person familiar with the matter said. The person said Trump and Kelly would likely discuss the matter this week, if they haven’t already, before Kelly’s self-imposed Friday deadline.

WaPo brings the appropriate level of skepticism over whether Kushner can really do his Fake Peace Plan job without clearance.

It is not clear how Kushner could perform his job without a high-level security clearance.

He holds a broad range of responsibilities, from overseeing peace efforts in the Middle East to improving the efficiency of the federal government. And he is the administration’s interlocutor with key allies, including China and Saudi Arabia, where he has developed a personal relationship with the young crown prince, Mohammed bin Salman.

[snip]

And apart from staff on the National Security Council, he issues more requests for information to the intelligence community than any White House employee, according to a person with knowledge of the situation, who spoke on the condition of anonymity to describe private discussions.

More importantly, WaPo includes a series of false bravado quotes from Jared’s defense attorney, Abbe Lowell, who bizarrely offered up his judgement that Jared is speaking with foreign officials “properly.”

“My inquiries to those involved again have confirmed that there are a dozen or more people at Mr. Kushner’s level whose process is delayed, that it is not uncommon for this process to take this long in a new administration, that the current backlogs are being addressed, and no concerns were raised about Mr. Kushner’s application,” he said in a statement.

[snip]

Lowell said Kushner’s job is “to talk with foreign officials, which he has done and continues to do properly.”

I’ve come to think of Kushner’s clearance process in similar terms to the way I’ve thought of the bail process Mueller has used with Paul Manafort and Rick Gates: While Gates ultimately did make bail, Manafort is still (!) almost four months after his arrest, struggling to show enough liquidity free of taint from his money laundering to alter his release conditions. The process of making bail (and having to serially beg to attend his kids’ soccer events) seems to have been one of the factors that brought Gates to the point of flipping, but along the way, he probably gave Mueller’s team far more leverage in plea negotiations, because they know how little Gates actually has to pay a defense attorney to oversee the flip (indeed, that may lie behind the confusion over Gates’ current legal representation).

Kushner’s liquidity problems are literally an order of magnitude greater than these men. But unlike them, he made the idiotic decision to work in the White House, and thereby to undergo the scrutiny of sworn statements laying out all the financial vulnerabilities and foreign entanglements that might make him susceptible to blackmail.

Which brings me back to my description of how Mueller is leveraging “conspiracy to defraud the United States” (what I will henceforward refer to as ConFraudUS*) charges to prosecute political influence peddling for which our regulatory system has completely collapsed. With the Internet Research Agency indictment, Mueller charged ConFraudUS because the trolls bypassed a campaign finance system that no longer works. With Manafort and Gates, Mueller charged ConFraudUS because they bypassed Foreign Agents Registration Act requirements that have never been enforced.

In the old days, to pursue the kind of quid pro quo we see outlines of, in which Trump officials (from George Papadopoulos’ proposed business with Sergei Millian to the possibility Kushner might get bailed out by the Russian Direct Investment Fund, which is itself a cut-out for the sanctioned Vnesheconombank, whose head, Sergey Gorkov, Kushner met in December 2016), you’d pursue bribery. But post-Bob McDonnell, bribery is a far tougher charge to make stick, as Mueller prosecutor Andrew Goldstein, who worked on the Sheldon Silver prosecution team, knows well.

What if, however, you could charge people whose meetings seamlessly tie the foreign policy decisions of the United States with discussions of their own financial interests, with ConFraudUS? That might make it easier to charge someone whose foreign policy decisions don’t serve the US interest but might enrich them for the quid pro quo entailed.

Which is why I’m interested in the report that Mueller has shown increased interest (almost certainly tied to Steven Bannon’s public pronouncements that, “It goes through Deutsche Bank and all the Kushner shit”) in Jared’s foreign financial dealings, how he has mixed his business interests and US foreign policy.

One line of questioning from Mueller’s team involves discussions Kushner had with Chinese investors during the transition, according to the sources familiar with the inquiry.
A week after Trump’s election, Kushner met with the chairman and other executives of Anbang Insurance, the Chinese conglomerate that also owns the Waldorf Astoria hotel in New York, according to The New York Times.

At the time, Kushner and Anbang’s chairman, Wu Xiaohui, were close to finishing a deal for the Chinese insurer to invest in the flagship Kushner Companies property, 666 Fifth Avenue. Talks between the two companies collapsed in March, according to the Times.

Mueller’s team has also asked about Kushner’s dealings with a Qatari investor regarding the same property, according to one of the sources. Kushner and his company were negotiating for financing from a prominent Qatari investor, former prime minister Hamad bin Jassim Al Thani, according to The Intercept. But as with Anbang, these efforts stalled.

Lowell’s false bravado in this report is even more ridiculous than that in the clearance stories.

A representative for Kushner declined to comment prior to the publication of this story. After publication, Kushner attorney Abbe Lowell told CNN in a statement, “Another anonymous source with questionable motives now contradicts the facts — in all of Mr. Kushner’s extensive cooperation with all inquiries, there has not been a single question asked nor document sought on the 666 building or Kushner Co. deals. Nor would there be any reason to question these regular business transactions.”

Lowell may not have turned over any documents relating to 666 Fifth Avenue. But Deutsche Bank got subpoenas even before Bannon started running his mouth (albeit in a separate EDNY probe). Moreover, the key detail under my imagined ConFraudUS charge would be whether Kushner did things — like try to get Chinese investors visas — that didn’t serve or indeed violated the interests of the United States. Admittedly, the President gets largely unfettered control over the foreign policy of the United States (though Trump has defied Congress in areas where they do have some control). But to the extent Jared pursued his own business interests during the transition, he wouldn’t be able to claim to rely on presidential prerogative.

Which brings me back to Jared’s long struggle to get a security clearance.

Abbe Lowell may not have turned over the financial documents on 666 Fifth Avenue that would show how susceptible Jared’s debt woes make him to foreign influence. But he has serially provided that evidence in support of Jared’s almost certainly futile attempt to convince the FBI he should get a permanent TS/SCI security clearance.

I laid this out yesterday at the very end of my Democracy Now appearance:

I think—the reason why Kushner’s business deals are important, we’ve talked—and in the intro, this wasn’t the only example of—there’s the Don Jr. We’ve talked about how poorly Trump’s people have separated his business interests from the interests of the country. The same is even more true for Jared Kushner, whose family business is basically bankrupt. And over and over again, he’s been shown to be in negotiations with entities, including Russians, but also Chinese and Middle Eastern. So, you know, he’ll go in and say, “OK, we’ll talk about this grand peace plan,” which is not about peace at all, “but, oh, by the way, can you bail out our 666 Park Avenue building, which is badly underwater?” And I think Mueller could make the same argument he’s made with the IRA indictment and the Manafort indictment, and say that Jared Kushner is pretending to be serving America’s foreign policy interests, but in fact he is just doing his own bidding. He’s just trying to bail out his own company. So I wouldn’t be surprised if he’s moving towards a very similar indictment on conspiracy to defraud the United States, having to do with his conflicts of interest.

AMY GOODMAN: And, of course, interesting that Kushner also hasn’t managed to get top security clearance, when he’s a senior adviser to President Trump, as Porter didn’t because he beat his wives, etc. And then you’ve got Donald Jr. now in India promoting Trump businesses, as, of course, Donald Trump is the president of the United States. And he’s standing with the prime minister of India as he does this, promoting the Trump brand, Marcy.

MARCY WHEELER: Exactly. I mean, if Trump and his son and his son-in-law are pretending to be doing the business of the United States but are instead just trying to enrich themselves, again, I don’t think it’s a—you know, we’ve talked about the Emoluments Clause and how you go after the Trump campaign—the Trump officials for their egregious conflicts of interest. And, frankly, it extends into his Cabinet. But what Mueller seems to be doing, with some very good appellate lawyers, by the way, is to be laying out this framework that if you are pretending to be doing something in the interest of the United States but are actually doing something else, serving somebody else’s bidding, whether it’s Russia, pro-Russian Ukrainian political party, or whether it’s your own family business, then they’re going to go after you for a conspiracy charge. And I wouldn’t be surprised if these conspiracy charges all kind of link up at the end, in this kind of grand moment of—I think that’s where he’s headed.

Remember, Trump and his spawn never really thought they’d win the election. Instead, they seemed interested in, among other things, a Trump Tower in Moscow and refinancing 666 Fifth Avenue. But if they made deals with Russians in hopes such personal financial benefits would result, a ConFraudUS charge might be a way to prosecute them for it.

*I originally shortened this “CTDTUS,” but following Peter Crowley’s suggestion, I’m instead using “ConFraudUS.”

 

[Note: At the top of this post there is an embedded video of Marcy’s interview with Democracy Now. It isn’t rendering properly on all browsers and operating systems and may appear as a blank space. You can watch the video or listen to audio at this link. /~R]

Open Thread: All in the Families?

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This is an open thread dedicated to this morning’s news. By now many of  you have heard that Alex van der Zwaan, a lawyer at mega-lawfirm Skadden, Arps, Slate, Meagher & Flom, was charged today by Team Mueller for making false statements while answering questions about his work for the Ukrainian Ministry of Justice in its case against Ukraine’s former prime minister Yulia Tymoshenko.

The “materially false, fictitious, and fraudulent statements and representations” arose from questions about interactions related to Paul Manafort’s partner Rick Gates and “Person A.”

[insert blogger’s laugh] Gee, I wonder who Person A could be? *

You can read the short and sweet court filing here (pdf).

These folks from Team Mueller signed the filing: Andrew Weissman, Greg Andres, Kyle Feeny, Brian Richardson. Add them and this assignment to Marcy’s bingo card

Richardson is a new name, which Marcy noted, already wondering if he is Mystery Prosecutor 17? She’ll probably elaborate in a separate post.

For a little background on Skadden Arps’ relationship to Ukraine, see this this NYT piece from September 21 last year: Skadden, Big New York Law Firm, Faces Questions on Work With Manafort

There was related legal news last autumn — emphasis on related.

Alfa Bank co-owners German Khan, Mikhail Fridman, and Peter Aven filed suit last October against Fusion GPS and Glenn Simpson claiming the Steele dossier was defamatory. Their reputations were “gravely” damaged as the dossier indicated they were engaged in criminal activity with Russia’s president Vladimir Putin.

Khan just happens to be van der Zwaan’s father-in-law. It’s a small world, yes?

It’ll be amusing if the Mueller-led investigation ends up unintentionally corralling multiple families.

* EDIT — 1:30 pm EST — I meant to add that  Andrea Manafort Shand, Paul Manafort’s daughter, was an associate at Skadden Arps-Washington DC office. I haven’t seen anything to suggest she’s involved in any way with today’s charges or that she’s Person A but stranger things have happened. Like the leaking of hacked text messages between Manafort’s daughters which have not been disavowed.

– – – – –

In case you missed it this morning, Marcy was on Democracy Now this morning, talking about the Mueller probe and the IRA indictment last Friday.

A transcript isn’t up as I type this but the video and audio are up on the main site under the Daily Show at the right side of Democracy Now’s homepage. I’ll add a link to the transcript as it becomes available.

Have at it!

 

In Two So-Called Fact Checks of Facebook, NYT Forgets Everything It Knows about Indictments

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In both this Scott Shane article and this “fact check” of Facebook VP Rob Goldman’s recent tweets on Russian trolls’ use of Facebook (which President Trump then picked up), the NYT has twice forgotten everything it knows about indictments, and in the process failed to properly analyze last week’s Internet Research Agency indictment.

In Shane’s article, he attempts to fact check Goldman using the indictment.

Facebook’s vice president for advertising, Rob Goldman, said on Twitter on Friday, “I have seen all of the Russian ads and I can say very definitively that swaying the election was *NOT* the main goal” — a statement that President Trump retweeted.

But Mr. Mueller’s indictment repeatedly states that the Russian operation was designed not just to provoke division among Americans but also to denigrate Hillary Clinton and support her rivals, mainly Mr. Trump. The hashtags the Russian operation used included #Trump2016, #TrumpTrain, #MAGA and #Hillary4Prison, and one Russian operative was reprimanded for “a low number of posts dedicated to criticizing Hillary Clinton,” the indictment says.

On Twitter, Shane even suggested Goldman hadn’t read the indictment.

Wonder if Rob Goldman has read the indictment. Mueller appears to disagree.

Then, Sheera Frenkel extends the purported fact check.

“I have seen all of the Russian ads and I can say very definitively that swaying the election was *NOT* the main goal.” Tweet #2

Not according to the indictment.

The grand jury indictment secured by Mr. Mueller asserts that the goal of Russian operatives was to influence the 2016 election, particularly by criticizing Hillary Clinton and supporting Mr. Trump and Bernie Sanders, Mrs. Clinton’s chief rival for the Democratic nomination.

The Russians “engaged in operations primarily intended to communicate derogatory information about Hillary Clinton, to denigrate other candidates such as Ted Cruz and Marco Rubio, and to support Bernie Sanders and then-candidate Donald Trump,” the indictment said.

Mr. Goldman later wrote in another tweet that “the Russian campaign was certainly in favor of Trump.”

Both Shane and Frenkel don’t consider what I laid out here:

[T]here are hints that Mueller is using this indictment to set up a more important point.

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

Goldman was addressing all of IRA’s activity on Facebook, which it described this way in September:

  • The vast majority of ads run by these accounts didn’t specifically reference the US presidential election, voting or a particular candidate.
  • Rather, the ads and accounts appeared to focus on amplifying divisive social and political messages across the ideological spectrum — touching on topics from LGBT matters to race issues to immigration to gun rights.
  • About one-quarter of these ads were geographically targeted, and of those, more ran in 2015 than 2016.
  • The behavior displayed by these accounts to amplify divisive messages was consistent with the techniques mentioned in the white paper we released in April about information operations.

Nowhere in the indictment does Mueller describe the scope of what IRA activity his team investigated, though it does describe how “over time” the IRA activity came to focus on the 2016 election.

These groups and pages, which addressed divisive U.S. political and social issues, falsely claimed to be controlled by U.S. activists when, in fact, they were controlled by Defendants. Defendants also used the stolen identities of real U.S. persons to post on ORGANIZATION-controlled social media accounts. Over time, these social media accounts became Defendants’ means to reach significant numbers of Americans for purposes of interfering with the U.S. political system, including the presidential election of 2016.

Indeed, the indictment makes it clear that the universe of IRA activity is larger than the election-related activity, in part by tying two counts of identity theft to crimes that happened after the election, as recent as May 2017.

Eight of the usages of fake credentials described in ¶92 also postdate the election. That’s presumably part of what Goldman was pointing to when he tweeted,

The majority of the Russian ad spend happened AFTER the election. We shared that fact, but very few outlets have covered it because it doesn’t align with the main media narrative of Tump and the election.

Even as they, a mainstream media outlet, ignored how Goldman’s invocation of this spending detail and the inclusion of 2017 activities in the indictment is proof that not all of the IRA activities Mueller investigated did pertain to the election, NYT deemed that claim lacking in context.

According to figures published by Facebook last October, 44 percent of the Russian-bought ads were displayed before the 2016 election, while 56 percent were shown afterward. Mr. Goldman asserted that those figures were not published by the “mainstream media” — however, many mainstream news outlets did print those numbers, including CNN, Reuters and The Wall Street Journal.

The point is that there are two universes of IRA Facebook activities: the entire universe, for which Goldman’s claims are generally true, and the activities that Mueller has chosen to focus on, which Shane and Frenkel mistake as the entire universe, and in the process blow their fact checks.

This disjunct continues to the citation of real life events planned using Facebook. Goldman pointed to two May 21, 2016 Houston events, where an Islamophobic event was planned on the same day as a United Muslims event, as the quintessential example of how Russia was trying to pit Americans against each other.

The single best demonstration of Russia’s true motives is the Houston anti-islamic protest. Americans were literally puppeted into the streets by trolls who organized both the sides of protest.

Frenkel doesn’t even get Goldman’s reference correct, in spite of his link to a story on it, and instead apparently takes the citation to be a reference to this passage from the indictment.

By in or around early November 2016, Defendants and their co-conspirators used the ORGANIZATION-controlled “United Muslims of America” social media accounts to post anti-vote messages such as: “American Muslims [are] boycotting elections today, most of the American Muslim voters refuse to vote for Hillary Clinton because she wants to continue the war on Muslims in the middle east and voted yes for invading Iraq.”

From which she concludes,

The protests in Houston in November 2017 were among many rallies organized by Russian operatives through Facebook. While the Houston protest was anti-Islamic, as Mr. Goldman said, he failed to note that the goal in promoting the demonstration was to link Mrs. Clinton’s campaign with a pro-Islamic message.

Again, the indictment is focusing on a particular subset of the IRA activity, whereas Goldman is commenting on the larger universe, arguably to say the indictment understates the threat.

With NYT’s mad, repeated rush to fact check Facebook using an indictment that never claims to be addressing the same universe of IRA activity Goldman was commenting on, they commit some pretty significant analytical errors, errors that extend to their ability to understand what Mueller is doing with the indictment.

I can’t say for certain why Mueller focused on certain kinds of IRA activity, but I can think of three likely possibilities:

  • Since his mandate is to investigate Russian tampering in the 2016 election, he is focusing on that subset of the IRA activity
  • Because it is tied to election law, the conspiracy to defraud the US charge in the indictment depends on activity that violates election law, and much of the IRA Facebook trolling does not
  • The events on which Mueller does focus — notably, twin events at key times in NYC and activities in FL that involve three identified Trump campaign officials — may hint at further crimes or more sophisticated cooperation between the campaign and Russian agents

The last possibility is (as I noted in my earlier post) one of the most intriguing parts of the indictment. But the NYT won’t see it because they’re so busy fact checking claims made about different sets of data.

I get the urge to beat up Facebook. They’ve got a lot to pay for in permitting Russia to abuse their platform. But (I suspect entirely because Trump used Goldman’s tweet to try to exonerate himself) in doing so, NYT has missed Goldman’s larger point, which isn’t an apology at all. Indeed, Goldman was saying that the problem is far bigger than what Mueller lays out in the indictment, and that our continued divisions are a vulnerability Russia continues to exploit.

As Mueller moves forward, we’re likely to see similar kinds of confusion between the specific crimes he addresses in indictments and pleas and the larger toxins that hurt our democracy. So long as we confuse Mueller’s investigation for the larger, still vulnerable whole, we’re never going to do the things as a society we need to prevent this from happening again.

Update: My apologies to Frenkel for misspelling her name originally in this.

Update: On the limits of what is and is not illegal for foreigners to engage in see this Rick Hasen post.

Update: I had an exchange on Twitter with Frenkel about this, and the so-called article has what purports to be a correction.

Because of an editing error, an earlier version of this article misstated the month when protests organized by Russian operatives were held in Houston. It was March 2016, not November 2017.

Except that as corrected (by me, though I got no attribution), the piece compounds its error.

The protests in Houston in May 2016 were among many rallies organized by Russian operatives through Facebook. While the Houston protest was anti-Islamic, as Mr. Goldman said, he failed to note that the goal in promoting the demonstration was to link Mrs. Clinton’s campaign with a pro-Islamic message.

According to the indictment secured by Mr. Mueller, there were many other examples of Russian operatives using Facebook and Instagram to organize pro-Trump rallies. At one protest, the Russian operatives paid for a cage to be built, in which an actress dressed as Mrs. Clinton posed in a prison uniform.

None of the materials or contemporary coverage associated with the anti-Islamic side of the protest associated it with Clinton’s campaign. On the contrary. the protest was about a local Islamic center.

A group calling themselves Heart of Texas called for the rally to protest what they consider “Islamization” of Texas – sparked in part by the recent opening of a privately funded library inside the downtown center. The group had also encouraged followers to bring legal firearms.

Although the Heart of Texas group never showed, about 10 people bearing flags of the United States, Texas and the Confederacy were there. “This is America. We have the right to speak out and protest,” said Ken Reed, who wore a T-shirt emblazoned with the phrase “White Lives Matter.” “We feel Texas, our great state and the United States is being threatened by the influx of Islam.”

Again, I agree that Facebook is a shitty company. But a newspaper doubling down on its errors to attack Facebook’s errors is … doing what it is complaining about.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

You see the parallel yet?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Update: Cleaned this up for clarity purposes.

Updated Mueller Docket Census: We Still Don’t Know What 6 Prosecutors Are Doing

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With each development in the Mueller investigation, I’ve been tracking which of Mueller’s 17 prosecutors show up on which dockets, as a way of understanding how little we know about the case. This post updates what we know given Friday’s events (I’ve also updated the numbering and am only counting someone actually named on a given docket, with the James Quarles exception since obstruction involving the White House may be the last or least likely to be docketed).

Manafort docket:

  • Andrew Weissmann (1)
  • Greg Andres (2)
  • Kyle Freeny (3)

Papadopoulos docket:

  • Jeannie Rhee (4)
  • Andrew Goldstein (5)
  • Aaron Zelinsky (6)

Flynn docket:

  • Brandon L. Van Grack (7)
  • Zainab Ahmad (8)

Obstruction docket:

Internet Research Agency docket:

  • Jeannie Rhee (4)
  • Rush Atkinson (10)
  • Ryan Dickey (11)

Richard Pinedo docket:

  • Jeannie Rhee (4)
  • Rush Atkinson (10)
  • Ryan Dickey (11)

Still unaccounted for:

  • Aaron Zebley (12): probably working on coordinating SCO activities
  • Michael Dreeben (13): appellate wizard
  • Adam Jed (14): appellate specialist
  • Elizabeth Prelogar (15): appellate specialist and Russian speaker
  • Scott Meisler (16): appellate specialist
  • Mystery prosecutor (17)

 

What Did Mueller Achieve with the Internet Research Agency Indictment?

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

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

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

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

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

Creating a paper trail

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

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

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

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

Establishing bipartisan credibility for the larger investigation

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

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

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

Reiterating the crime of conspiracy to defraud the United States

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

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

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

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

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

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

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

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

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

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

Illegal compensated acvitities

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

Presumptively legal compensated activities

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

Uncompensated activities

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

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

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

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

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

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

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

Hinting at what the US has

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

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

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

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

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

Nevertheless establishing the political stakes

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

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

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

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

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

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

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

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

[snip]

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

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

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

Using the term “co-conspirator” 119 times

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

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

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

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

Update: added the public indictment part.

The Gates Flip and the 404(b) Delay

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CNN reported tonight that, after not getting funded by rich GOP donors (perhaps in part because Trump thinks his cooperation won’t imperil him), Paul Manafort’s deputy, Rick Gates, is about to flip.

Gates has already spoken to Mueller’s team about his case and has been in plea negotiations for about a month. He’s had what criminal lawyers call a “Queen for a Day” interview, in which a defendant answers any questions from the prosecutors’ team, including about his own case and other potential criminal activity he witnessed.

[snip]

Once a plea deal is in place, Gates would become the third known cooperator in Mueller’s sprawling probe into Russian interference in the 2016 presidential election. It would also increase the pressure to cooperate on Gates’ co-defendant Paul Manafort, Trump’s former campaign chairman, who has pleaded not guilty to Mueller’s indictment and is preparing for a trial on alleged financial crimes unrelated to the campaign. Gates pleaded not guilty on October 30 alongside Manafort.

[snip]

Gates has told associates he had hoped for outside assistance from a legal defense fund, but deep-pocketed GOP donors have shown little interest in helping either Gates or Manafort cover their legal fees, two sources said.

The judge has already acknowledged that Gates could not show he had $5 million in assets to secure his bail. His financial situation is further hampered by assets he would have to forfeit to the government if found guilty of money laundering charges. A complex criminal case such as this could cost a defendant more than a million dollars in legal fees, especially if he were to go to trial, according to several people familiar with the legal industry.

Hopefully I’ll have time tomorrow to lay out what Gates might have offered Mueller. But for now, I want to look at a detail from the Gates/Manafort docket.

On Wednesday, Judge Amy Berman Jackson held a status conference. With Manafort, she appears to have discussed his continued efforts to make bail (one thing that CNN reports pressured Gates financially enough that made him willing to flip).

With Gates, she appears to have discussed his confusing legal situation, where his existing lawyers are trying to ditch him so his new lawyer, Tom Green, can finalize this plea deal. The night before, Gates had filed a pro se motion asking Berman Jackson to hold off on deciding whether his current lawyers can ditch him until February 21.

In response, Berman Jackson granted Gates his week.

Defendant Manafort’s (1) Sealed Motion 153 for Reconsideration of Conditions of Release remains under advisement. Defendant Manafort (1) must supplement the Motion. The 161 Motion to Withdraw as Counsel for Defendant Gates (2) remains under advisement. Defendant Gates is to advise the Court of his position on the Motion by 5:00 PM on Wednesday, 2/21/2018.

Just as interesting, Berman Jackson held off on resetting deadlines and on deciding whether or not the government can delay providing 404(b) notice of the evidence of other crimes the government will submit at trial.

The Current Briefing and Hearing schedules that were established at the Status Conference held on 1/16/2018, and in the Minute Order issued on 1/17/2018 are suspended pending further Order of the Court. The government’s 155 Motion to Modify the Court’s Schedule for Rule 404(b) Notice and Briefing remains under advisement. SO ORDERED. By Judge Amy Berman Jackson on 2/14/2018. (jth) (Entered: 02/14/2018)

I noted, when the government submitted that request, that Mueller’s team likely wanted to hide what other crimes Manafort and Gates had committed to save their value for when they testify against Trump and his family.

First, Mueller doesn’t want to tip his hand to the many crimes it has found Manafort implicated in. Perhaps, he also wants to avoid making other obvious allegations about Manafort and Gates to preserve their credibility when they flip on the President and his family. But it also seems to suggest Mueller expects he’ll be finding other crimes Manafort and Gates committed for the next 8 months.

Everything’s on hold, now, until Gates can plead guilty to crimes that involve only indirect taint of conspiring with the Russians, so the government doesn’t yet have to reveal how much it knows of that taint, at least not publicly.

I could be wrong, but this may answer something we’ve been trying to understand about George Papadopoulos and Mike Flynn — whether the government let them plead to far lesser crimes because that’s all they’ve got or because Mueller is trying to keep his witnesses relatively clean for when they testify against Trump.

I think Mueller’s trying to keep them clean, and in the process trying to keep his poker hand still close to the chest for when he starts to use it against the big guns.

I’m also interested in the timing, which would put at least one more guilty plea into place before Rachel Brand leaves.