As he did with Igor Danchenko, John Durham has raised a potential conflict as a way to air his conspiracy theories so he can jack up the frothy right. In this case, he describes an uncharged meeting at which Michael Sussmann, who no longer had anything to do with the DNC, shared an updated version of the Alfa Bank allegations with the CIA on February 9, 2017.
The Indictment further details that on February 9, 2017, the defendant provided an updated set of allegations – including the Russian Bank-1 data and additional allegations relating to Trump – to a second agency of the U.S. government (“Agency-2”). The Government’s evidence at trial will establish that these additional allegations relied, in part, on the purported DNS traffic that Tech Executive-1 and others had assembled pertaining to Trump Tower, Donald Trump’s New York City apartment building, the EOP, and the aforementioned healthcare provider. In his meeting with Agency-2, the defendant provided data which he claimed reflected purportedly suspicious DNS lookups by these entities of internet protocol (“IP”) addresses affiliated with a Russian mobile phone provider (“Russian Phone Provider-1”). The defendant further claimed that these lookups demonstrated that Trump and/or his associates were using supposedly rare, Russian-made wireless phones in the vicinity of the White House and other locations. The Special Counsel’s Office has identified no support for these allegations. Indeed, more complete DNS data that the Special Counsel’s Office obtained from a company that assisted Tech Executive-1 in assembling these allegations reflects that such DNS lookups were far from rare in the United States. For example, the more complete data that Tech Executive-1 and his associates gathered – but did not provide to Agency-2 – reflected that between approximately 2014 and 2017, there were a total of more than 3 million lookups of Russian Phone-Provider-1 IP addresses that originated with U.S.-based IP addresses. Fewer than 1,000 of these lookups originated with IP addresses affiliated with Trump Tower. In addition, the more complete data assembled by Tech Executive-1 and his associates reflected that DNS lookups involving the EOP and Russian Phone Provider-1 began at least as early 2014 (i.e., during the Obama administration and years before Trump took office) – another fact which the allegations omitted.
The frothy right is very excited that, among the data that someone heavily involved in cybersecurity like Rodney Joffe would have ready access to, was data that included the White House. They seem less interested that, to disprove the allegations Sussmann presented, Durham effectively (in their frothy minds) conducted the same “spying” on EOP networks of President Obama that Durham insinuates Joffe did of Trump.
Remember: This meeting is not charged. It’s not clear such a meeting with the CIA could be charged. Durham presents zero evidence Sussmann knows anything about the comparative value of this data, either.
That’ll become important in a bit.
The conflicts Durham raises to justify this filing are a bit more interesting than the ones he raised with Danchenko. Latham Watkins used to represent Perkins Coie and Marc Elias in this matter, now they represent just Sussmann, and Elias will be asked to testify about instructions Sussmann got about billing records in his representation of the DNC. Latham represented the DNC. Latham represented Sussmann in December 2017 House Intelligence testimony that significantly undermines Durham’s indictment (and shows that the allegations at the core of this indictment originally came from Kash Patel, who by the time of trial may be charged for his participation in helping Trump attempt a coup). Latham also provided Perkins Coie advice regarding a PR statement that, Durham admits, he’s not been able to pierce the privilege of and he knows those who made the statement had no knowledge that could implicate the statement in a conspiracy. Somebody on Sussmann’s team used to work at the FBI and then worked for the White House. Those are the conflicts — more substantive than the ones Durham raised about Danchenko, but probably nothing that problematic.
Which makes the relative timing of this filing all the more interesting.
With Danchenko, Durham raised the potential conflict, first, at a status hearing less than two weeks after Stuart Sears filed a notice of appearance for Danchenko, and then again, in a filing two weeks after Sears filed, for a less pressing imagined conflict involving different lawyers in Sears’ firm.
With Sussmann, Durham waited for almost five months after indicting Sussmann to raise the conflict, even though all but one element of the imagined conflict would have been immediately apparent to Durham, not least that Latham had previously represented Elias.
That doesn’t seem to reflect any real burning concern about this conflict.
But, as noted, it did give Durham an excuse to float previously unreleased information that may not even come in at trial, given that it’ll have to be presented as 404(b) evidence and it, in fact, as presented, undermines the claim that Sussmann was hiding his ties to Hillary from the Federal government.
If the information doesn’t come in at trial, this may be Durham’s only chance to jack up the frothy right with it.
And that’s interesting because of the date of that CIA meeting: February 9, 2017, five years and two days before Durham filed this belated notice of a conflict.
As I keep noting, Durham is obviously trying to pull his fevered conspiracy theories into an actual charged conspiracy, one tying together the DNC, Fusion GPS, Christopher Steele, and Hillary herself. If he succeeds, these flimsy charges (against both Sussmann and Danchenko) become stronger, but if he doesn’t, he’s going to have a harder time proving motive and materiality at trial.
After charging Sussmann on almost the last possible date before the statute of limitations expired for his claimed lie to the FBI, though, Durham would need something on which to hang a continuing conspiracy to be able to charge the others. One of those events could have been the PR statement issued in 2018, which Durham says is inaccurate.
Privilege logs and redacted emails obtained from Law Firm-1 in this investigation reflect that in the days before the issuance of these statements, Latham attorneys sent, received, and/or were copied on correspondence relating to the drafting and dissemination of the statements. (Much of the substance of those emails was redacted and withheld from the Special Counsel’s Office pursuant to Law Firm-1’s assertion of attorney-client privilege and attorney work product protections). Because the defendant was aware of and/or reviewed these media statements, the Government may seek to offer them as evidence pursuant to Rule 404(b) or other provisions of law to establish that the defendant sought to conceal the Clinton Campaign’s ties to the Russian Bank-1 allegations from the FBI and others.3
3 According to counsel for Law Firm-1, the attorneys at Law Firm-1 and Latham who participated in drafting and/or reviewing these statements were unaware at the time that the defendant had billed work on the Russian Bank-1 allegations to the Clinton Campaign.
Except, as laid out here, none of the Perkins Coie people involved in writing the statement knew how Sussmann had billed his time. And Durham hasn’t found a reason to otherwise pierce the privilege claims that went into the drafting of the statement.
So that’s probably not going to work to establish his continuing conspiracy.
The other event on which Durham might have hung a continuing conspiracy was that February 9 meeting. It involved updated work from Joffe, after all. And Durham claims Sussmann again deliberately hid who his client was rather than (as he now knows Sussmann did for tips from Jofffe that had nothing to do with Donald Trump) just shared a tip anonymously.
But instead of rolling out what Sussmann presented in that February 9 meeting five years and two days ago in a conspiracy indictment, Durham instead packaged it up in a filing pertaining to a potential conflict. This February 9 meeting, it appears, won’t be the hook on which Durham gets to charge a conspiracy.
I’m not saying that Durham won’t be able to pull together his grand conspiracy. He might next point to testimony in Congress (possibly Glenn Simpson’s) to claim that there was some grand cover-up of what he imagines was an attempt to smear Donald Trump. Except, as this filing admits, Sussmann’s sworn testimony to the House Intelligence Committee shows that when asked — by future coup investigative subject Kash Patel — Sussmann testified consistently with sharing this information on behalf of Joffe, which is what Sussmann’s currently operative story remains. Durham did suggest he thinks he can show Sussmannn misled members of Congress because he claims it was, “knowingly and intentionally misleading insofar as it failed to disclose that the defendant billed work on the Russian Bank-1 allegations to the Clinton Campaign,” except (as with the alleged lie more generally) that’s not what he was asked about.
By all means, John Durham, make Kash Patel a witness at your trial. Give Sussmann an opportunity to ask how Kash came to learn of this meeting in the first place, to say nothing about whether Kash has recently been involved in efforts to overthrow the US government.
Whatever Durham hopes to use to sustain the claim of a continuing conspiracy, this filing seems to concede that the lies Durham claims Sussmann told in that meeting that took place five years and a few days ago will not be charged.
Ask not for whom the statute of limitations toll, John Durham. They toll for you.
https://www.emptywheel.net/wp-content/uploads/2021/10/John_H._Durham_magazine-1500pxw.jpg9971494emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2022-02-12 14:04:432022-02-12 16:58:54John Durham, Ask Not for Whom the Statute of Limitation Tolls …
Parts of the Mueller Report that BuzzFeed have liberated — both this most recent unsealing and a prior one in November 2020 — now show that:
Mueller had sufficient evidence to charge Don Jr with a misdemeanor CFAA charge, but once he ruled out a felony charge, did not charge Jr, because he correctly determined that would be an asinine prosecutorial decision
Mueller had outstanding questions about whether Roger Stone conspired with Russia, and so declined to charge him in July 2018 but did refer those questions for ongoing investigation (an investigation which, if claimed exemptions are any guide, was still ongoing in November 2020)
Mueller didn’t charge Jr because his likely crime amounted only to a misdemeanor
As newly unsealed language explains,
The Office also considered whether Donald Trump Jr. intentionally accessed a protected computer without authorization, in violation of [CFAA … by] us[ing] a password, supplied to him by WikiLeaks … to access the website “putintrump.org” in September 2016.
Mueller found that Don Jr’s conduct met each element — (1) access without authorization and (2) obtain information from (3) a protected computer (4) intentionally — of a misdemeanor CFAA violation (meaning, there was probable cause he had committed the crime):
Trump Jr. received the password from WikiLeaks and then wrote to others that “it worked” when he tried it; that evidence would support a conclusion that he “accesse[d] a computer without authorization.”
Trump Jr’s statement in an email that he had seen the website’s contents likely sufficed to demonstrate that he “obtained information” from the computer, since the word “obtain” in this provision “includes mere observation of the data.”
The computer accessed with the password likely qualifies as “protected” under the statute, which reaches “effectively all computers with Internet access.”
The same course of conduct, and Trump Jr’s email admissions afterwards, also suggested that Trump Jr acted “intentionally.”
That language establishes that, contra Byron, Don Jr did probably commit a crime, something that one of the leading experts on CFAA, Orin Kerr, laid out in 2018.
But Mueller didn’t charge it. Legalistically, Mueller didn’t charge it because prosecutors couldn’t prove that Jr’s conduct was serious enough to merit a felony charge because he didn’t get $5,000 of value from the information or try to commit another crime with the information.
In this instance, Trump Jr. accessed the website shortly before it went public using a “guessed” password that, although it was sent to him individually, had also been posted by WikiLeaks to its public Twitter account, such that anyone following WikiLeaks could have gotten the same purview of the website that Trump Jr. did. That fact, among others, would make it difficult to prove that Trump Jr. acted to further any crime or tort or that he obtained information valued at more than $5,000–which are the kind of circumstances that can trigger felony punishment under the statute.
Colloquially, this language means that Mueller determined the conduct was so minor that it would be asinine to charge. That was undoubtedly the correct decision.
Incidentally, this is a perfect example of what I discussed in my Ratfucker Rashomon series about ways the genre of the Mueller Report — a report on prosecutorial decisions — obscures the real significance of the investigative findings. This conduct was interesting for Mueller not because it was ever going to be charged as a crime (though it was one of the things cited to get the contents of Assange’s Twitter account in 2017), but because WikiLeaks and Assange fairly obviously repeatedly cultivated Jr, including:
In October 2016 when they tried to conduct outreach to the campaign via him rather than Roger Stone
The day after the election, when they pitched Don Jr on ways to contest a Hillary win
In December 2016, when they again tried to shift the pardon discussions ongoing with Stone to Jr
In July 2017, when Assange encouraged Don Jr to release his own June 9 meeting emails and to reach out to the go-between Stone was using, Margaret Kunstler
All this is important for understanding how WikiLeaks was pressuring Trump and likely played a huge role in Trump’s pivot on an Assange pardon after he realized Mueller was investigating it. But much of it is not criminal (and it’s not clear whether Jr encouraged it at all). So none of it appears in the Mueller Report, which is limited to prosecutorial decisions.
This misdemeanor CFAA declination, then, hides far more interesting investigative threads Mueller pursued that would never show up in a declinations report.
Mueller didn’t charge Stone because DOJ was still investigating
Because the four pages released yesterday include two of a number of discussions of the prosecutorial decisions regarding Stone, multiple people (including Byron) are stating that Mueller found that Stone did not conspire with Russia’s hack-and-leak campaign. That’s based on this language:
Separately, Russian intelligence officers who carried out the hacking into Democratic Party computers and the personal email accounts of individuals affiliated with the Clinton Campaign conspired to violate, among other federal laws, the federal computer-intrusion statute, and they have been so charged. See United States v. Netyksho, et al., No. 18-cr-215 (D.D.C.). The evidence was not sufficient to charge that former Trump Campaign member Roger Stone joined or participated in the hacking conspiracy.
[snip]
Therefore, the Office did not seek charges against WikiLeaks, Assange, or Stone for participating in the computer-intrusion conspiracy alleged in Count One of the Netyksho indictment.
Both these references discuss a prosecutorial decision made in July 2018.
But a footnote to the CFAA declination released in the material BuzzFeed liberated in November 2020 reveals that Mueller made multiple referrals regarding this issue to DC’s US Attorney Office.
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 warrant targeting Stone after the Netysko indictment in 2018 explained that, “It does not appear that Stone is currently aware of the full nature and scope of the ongoing FBI investigation.” Warrants from this same period (some of which were originally withheld from Stone) make clear the investigation pertained to his foreknowledge of Guccifer 2.0’s operation, not WikiLeaks. The efforts to hide parts of the investigation from Stone appears to have worked, as he appears to have believed that the charges against him for lying, obstruction, and witness tampering pertaining to WikiLeaks was the end point of the investigation, which may have been why Andrew Miller ended his challenge to a Mueller subpoena after the Report was released.
In fact, a number of other declination decisions don’t include all of Stone’s exposure. The most substantive Stone-related declination in the report addresses contacts with WikiLeaks (but not Guccifer 2.0) and addresses campaign finance crimes.
The individual declinations of a conspiracy don’t address the section of the report that addresses Stone’s conduct:
That particular section is silent about declining a conspiracy related to Volume I Section III, which is where everything Stone-related appears, even his contacts with Henry Greenberg, which was effectively another outreach from a Russian, which otherwise should appear in Section IV.
In other places, too, the report discusses “Trump Campaign officials” or members, rather than discussing people associated with it or a former campaign official as it does elsewhere, a distinction with Stone (who left the campaign in 2015) that Mueller sustained.
Further, the evidence was not sufficient to charge that any member of the Trump Campaign conspired with representatives of the Russian government to interfere in the 2016 election.
[snip]
As a result, the Office did not charge Gordon or any other Trump Campaign official with violating FARA or Section 951, or attempting or conspiring to do so, based on contacts with the Russian government or a Russian principal.
All of which is to say that Mueller did not charge Roger Stone in July 2018 when he indicted the Russian hackers. Likewise, he did not charge Stone for receiving an illegal campaign donation by optimizing the WikiLeaks releases. But the other declinations in the report stop short of addressing Stone’s conduct, and a footnote (as well as referrals that were explicitly labeled as Stone-related in the second release of the report) makes clear that the investigation into Stone continued past the end of the Mueller investigation.
That doesn’t mean DC prosecutors ultimately found that Stone committed a crime. He has not been charged (at least not publicly). But at the time the report was written in March 2019, the investigation into whether Stone conspired with Russia remained ongoing.
https://www.emptywheel.net/wp-content/uploads/2019/05/DonnieTrumpJr_ElephantTail_1500pxw.jpg10001500emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2022-02-12 09:34:392022-02-12 11:16:38Mueller Found Probable Cause, but Did Not Charge, Don Jr for Misdemeanor Hacking
A number of people are making the obvious comparison between his attacks on Hillary, especially his ceaseless efforts to increase her legal jeopardy, and his own criminal exposure. Those comparisons are most important to raise, in my opinion, with the journalists who chased that story relentlessly at Trump’s behest in 2016 but who have already dismissed the interest of this.
Some have made the comparison with attacks on Speaker Pelosi for tearing up one of Trump’s State of the Union speeches.
As CNN describes it, some of the most obvious immediate exposure Trump would have would be under 18 USC 2071 (which, auspiciously, prohibits someone from holding office).
Legal experts tell CNN that any unauthorized retention or destruction of White House documents raises a red flag under a criminal law that prohibits the removal or destruction of official government records.
But for a charge like this to fly, prosecutors would need to show that Trump had “willfully” violated the law — a high bar, though one that prosecutors could potentially meet given the frequent efforts within the White House to try to preserve records Trump would habitually mutilate.
Furthermore, other criminal laws could come into play as well, if an investigation by the Justice Department progresses.
“If the intent was ‘Let me get these documents taken out of the way because they could look bad, they could be damning for me in an investigation, in a lawsuit,’ then you’re talking about potential obstruction of justice. So the devil will be in the details here,” said CNN legal analyst Elie Honig.
Though for once I agree with TV Lawyer Elie Honig that, depending on what Trump took and why, it could be a basis for obstruction charges.
But Trump has done more than make his willfulness obvious with his habit of ripping up Presidential Records.
He also wanted Jim Comey to be prosecuted for doing just what he did.
An investigation into Comey’s treatment of the memos he wrote documenting Trump’s efforts to halt the Russian investigation concluded that Comey had violated his employment agreement by bringing the memos home.
Comey’s actions with respect to the Memos violated Department and FBI policies concerning the retention, handling, and dissemination of FBI records and information, and violated the requirements of Comey’s FBI Employment Agreement. Below, we discuss these violations.
1. Comey Failed to Return Memos 2, 4, 6, and 7 after Being Removed as FBI Director
Comey violated Department and FBI policies, and the terms of his FBI Employment Agreement, by retaining copies of Memos 2, 4, 6, and 7 after he was removed as Director, regardless of each Memo’s classification level. As a departing FBI employee, Comey was required to relinquish any official documents in his possession and to seek specific authorization from the FBI in order to personally retain any FBI documents. Comey failed to comply with these requirements.
Under Department of Justice Policy Statement 0801.02, Removal of and Access to Department of Justice Information, the Department “owns the records and information…captured, created, or received during the conduct of official business.”87 Likewise, the FBI designates all official records and material as “property of the United States” and requires departing employees to “surrender all materials in their possession that contain FBI information…upon separation from the FBI.”88 This policy is reiterated in Comey’s FBI Employment Agreement, which specifically states that he was required to surrender, upon termination of his employment, any materials in his possession “containing FBI information.”
A Department employee who wants to retain Department records or information after their employment ends must make a written request, receive approval from the appropriate official, and execute a nondisclosure agreement.89 As the FBI Director and Head of a Department Component, Comey was required to apply for and obtain authorization from the Assistant Attorney General for Administration to retain any FBI records after his removal. 90
Comey violated these Department and FBI policies by failing to surrender his copies of Memos 2, 4, 6, and 7 upon being removed as FBI Director and by failing to seek authorization to retain them. Comey’s explanation for his conduct was that he considered the Memos to be personal records, but for the reasons previously described, this assertion is without any legal basis. In view of the clarity of relevant provisions of law, policies, and Comey’s Employment Agreement, the assertion that the Memos were personal records was not reasonable. We found it particularly concerning that Comey did not tell anyone from the FBI that he had retained copies of the Memos in his personal safe at home, even when his Chief of Staff, the FBI’s Associate Deputy Director, and three SSAs came to Comey’s house on May 12, 2017, to inventory and remove all FBI property.
87 DOJ Policy Statement 0801.02, § I. The only items that departing employees may remove without Department permission are “[p]ersonal materials or information, in any format, that is not related to the business of the Department”; copies of any unclassified information that has officially been made public; and a copy of the employee’s email contacts. Id. Comey’s Memos were not within any of these categories.
88 Prepublication Review PG, § 1.1.
89 DOJ Policy Statement 0801.02, § II.A.
90 DOJ Policy Statement 0801.02, § III.B.
It further faulted Comey for not informing the Bureau that he had shared the memos with his attorneys after they informed him they had retroactively classified the memos.
On June 7, 2017, Comey learned of the FBI’s classification decision regarding Memo 2 when the FBI allowed him to review copies of all seven Memos, with classification banners and markings, in preparation for his June 8, 2017 congressional testimony. Once he knew that the FBI had classified portions of Memo 2, Comey failed to immediately notify the FBI that he had previously given Memo 2 to his attorneys.101
The FBI’s Safeguarding Classified National Security Information Policy Guide clearly states that “[a]ny person who has knowledge that classified information has been or may have been lost, compromised, or disclosed to an unauthorized person must immediately report the circumstances to his or her security office.” 102 Comey violated this requirement by failing to immediately inform the FBI that he provided Memo 2 to his attorneys.
Comey was referred to the FBI (which is standard).
The OIG has provided this report to the FBI and to the Department of Justice Office of Professional Responsibility for action they deem appropriate.
And predictably, Trump complained that Comey would not be prosecuted as a result.
The fact that James Comey was not prosecuted for the absolutely horrible things he did just shows how fair and reasonable Attorney General Bill Barr is. So many people and experts that I have watched and read would have taken an entirely different course. Comey got Lucky!
Bryan Dean Wright, former CIA Officer(Dem): “In 2016 we had a Coup. We have to take Comey and others to task. Makes no sense not to prosecute him. Comey got a book deal. I fear for my Country. He tried to kneecap our duly elected president, and there are no consequences.” @fox&,Fs
“They could have charged Comey with theft of government documents, 641 of the Criminal Code, because the IG found these were not his personal documents, these were government documents.” @GreggJarrett “Comey’s claim that these were just his own personal recollections would not..
“The IG found that James Comey leaked Classified Documents to his attorneys, which can be (is) a violation of the Espionage Act. This is consistent with all the lies that Comey has been spreading. @GreggJarrett @ByronYork @LouDobbs
So they now convict Roger Stone of lying and want to jail him for many years to come. Well, what about Crooked Hillary, Comey, Strzok, Page, McCabe, Brennan, Clapper, Shifty Schiff, Ohr &, Nellie, Steele &, all of the others, including even Mueller himself? Didn’t they lie?….
To be fair, Comey also shared one of his memos with Daniel Richman (though that one did not include classified information), which was also included in the report’s findings.
Still, Trump endorsed the idea that Comey be prosecuted for theft of government documents or even the Espionage Act.
And then, having done that, Trump took a number of Top Secret documents with him when he left.
This is, at one level, just more Trump hypocrisy.
But it is also proof he was aware of — and claimed to adhere to — the rules prohibiting taking documents home.
https://www.emptywheel.net/wp-content/uploads/2022/02/Maggie.png840620emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2022-02-11 13:24:582022-02-12 08:25:56Donald Trump Wanted Jim Comey Prosecuted for Bringing Government Documents Home
Among those whinging that Merrick Garland hasn’t imprisoned Donald Trump yet, there is an apparent belief that the Mueller Report left obstruction charges all wrapped up in a bow, as if the next Administration could come in, break open the Report, and roll out fully-formed charges.
Even among those with a more realistic understanding of the Mueller Report, people continue to call for some public resolution of the obstruction charges, as Randall Eliason did here and Quinta Jurecic did here. Jurecic even updated her awesome heat map of the obstruction charges, with the date the statute of limitations (if an individual act of obstruction were charged outside a continuing conspiracy) would expire for each.
None of that is realistic, for a whole range of reasons.
The obstruction-in-a-box belief is based on a misunderstanding of the Mueller Report
First, the belief that Merrick Garland could have come into office 11 months ago and rolled out obstruction charges misunderstands the Mueller Report. Many if not most people believe the report includes the entirety of what Mueller found, describes declination decisions on every crime considered, and also includes a volume entirely dedicated to Trump’s criminal obstruction, a charging decision for which Mueller could not reach on account of the OLC memo prohibiting it. None of that is true.
As I laid out in my Rat-Fucker Rashomon series, the Mueller Report is only a description of charging decisions that the team made. My comparison of the stories told in the Report with those told in the Stone warrant affidavits, Stone’s trial, and the SSCI Report show that Mueller left out a great deal of damning details about Stone, including that he seemed to have advance notice of what the Guccifer 2.0 persona was doing and that Stone was scripting pro-Russian tweets for Trump in the same period when Trump asked Russia, “if you’re listening — I hope you are able to find the 30,000 emails that are missing.”
And, as DOJ disclosed hours before the 2020 election, Mueller didn’t make a final decision about whether Stone could be charged in a hack-and-leak conspiracy. Instead, he referred that question to DC USAO for further investigation. In fact the declinations in the Mueller Report avoid addressing any declination decision for Stone on conspiring with Russia. The declination in the report addresses contacts with WikiLeaks (but not Guccifer 2.0) and addresses campaign finance crimes. The section declining to charge any Trumpsters with conspiracy declines to charge the events described in Volume I Section II (the Troll operation) and Volume I Section IV (contacts with Russians), in which there is no Stone discussion. Everything Stone related — even his contacts with Henry Greenberg, which is effectively another outreach from a Russian — appears in Section III, not Section IV. The conspiracy declinations section doesn’t mention Volume I Section III (the hack-and-leak operation) at all and (as noted) in the section that specifically addresses hack-and-leak decisions, a footnote states that, “Some of the factual uncertainties [about Stone] are the subject of ongoing investigations that have been referred by this Office to the D.C. U.S. Attorney’s Office.” This ongoing investigation would have been especially sensitive in March 2019, because prosecutors knew that Stone kept a notebook recording all his conversations with Trump during the campaign, many of which (they did have proof) pertained to advance notice of upcoming releases. That is, the ongoing investigation into Stone was also an ongoing investigation into Trump, which is consistent with what Mueller told Trump’s lawyers in summer 2018.
That’s not the only investigation into Trump that remained ongoing at the time Mueller closed up shop. The investigation into a suspected infusion of millions from an Egyptian bank during September 2016 continued (per CNN’s reporting) until July 2020, which is why reference to it is redacted in the June 2020 Mueller Report but not the September 2020 one. I noted both these ongoing investigations in real time.
So contrary to popular belief, Volume II does not address the totality of Trump’s criminal exposure.
That ought to change how people understand the obstruction discussion in Volume II. For all the show of whether or not Mueller could make a charging decision about Trump, the discussion provably did not include the totality of crimes Mueller considered with Trump.
All the more so given the kinds of obstructive acts described in Volume II. The biggest tip-off that this volume was about something other than criminal obstruction charges, in my opinion, is the discussion of Trump’s lies about the June 9 meeting in Trump Tower. As Jurecic’s heat map, her extended analysis, and my own analysis at the time show, the case that this was obstruction was weak. “Mueller spent over eight pages laying out whether Trump’s role in crafting a deceitful statement about the June 9 meeting was obstruction of justice when, according to the report’s analysis of obstruction of justice, it was not even a close call.” At the time, I suggested Mueller included it because it explained what Trump was trying to cover up with his other obstructive actions during the same months. But I think the centrality of Vladimir Putin involvement in Trump’s deceitful statement — which gets no mention in the Report, even though the Report elsewhere cites the NYT interview where that was first revealed — suggests something else about this incident. Because of how our Constitution gives primacy in foreign affairs to the President, DOJ would have a very hard time charging the President for conversations he had with a foreign leader (Trump’s Ukraine extortion was slightly different because Trump refused to inform Congress of his decision to blow off their appropriation instructions). But Congress would (in a normal time, should) have no difficulty holding the President accountable for colluding with a foreign leader to invent a lie to wield during a criminal investigation. Trump’s June 9 meeting lie is impeachable; it is not prosecutable.
Similarly, several of the other obstructive acts — asking Comey to confirm there was no investigation into him, firing Comey, and threatening to fire Mueller — would likewise be far easier for Congress to punish than for DOJ to, because of how expansively we define the President’s authority.
That is, these ten obstructive acts are best understood, in my opinion, as charges for Congress to impeach, not for DOJ to prosecute. The obstruction section — packaged up separately from discussion of the other criminal investigations into Trump — was an impeachment referral, not a criminal referral. I think Mueller may have had a naive belief that Congress would be permitted to consider those charges for impeachment, such an effort would succeed, and that would leave DOJ free to continue the other more serious criminal investigation into Trump.
It didn’t happen.
But that doesn’t change that a number of these obstructive acts are more appropriate for Congress to punish than for DOJ to.
Bill Barr did irreparable damage to half of these obstruction charges
Bill Barr, of course, had other things in mind.
Those wailing that Garland is doing nothing in the face of imminently expiring obstruction statutes of limitation appear to have completely forgotten all the things Billy Barr did to make sure those obstruction charges could not be prosecuted as they existed when Mueller released his report.
That effort started with Barr’s declination of the obstruction charges.
Last year, Amy Berman Jackson forced DOJ to release part of the memo Barr’s flunkies wrote up the weekend they received the Mueller Report. The unsealed portions show that Rod Rosenstein, Ed O’Callaghan, and Steven Engel signed off on the conclusion that,
For the reasons stated below, we conclude that the evidence described in Volume II of the Report is not, in our judgment, sufficient to support a conclusion beyond a reasonable doubt that the President violated the obstruction-of-justice statutes. In addition, we believe that certain of the conduct examined by the Special Counsel could not, as a matter of law, support an obstruction charge under the circumstances. Accordingly, were there no constitutional barrier, we would recommend, under the Principles of Federal Prosecution, that you decline to commence such a prosecution.
This was unbelievably corrupt. There are a slew of reasons — from Barr’s audition memo to the way these officials include no review of the specific allegations to the fact that some of these crimes were crimes in progress — why this decision is inadequate. But none of those reasons can make the memo go away. So unless DOJ were to formally disavow this decision after laying out the reasons why the process was corrupt (preferably via analysis done by a quasi-independent reviewer like the Inspector General), any prosecution of the obstruction crimes laid out in the Mueller Report would be virtually impossible, because the very first thing Trump would do would be to cite the memo and call these three men as witnesses that the case should be dismissed.
But Barr’s sabotage of these charges didn’t end there. At his presser releasing the heavily-redacted report, Barr excused Trump’s obstruction because (Barr claimed) Trump was very frustrated he didn’t get away with cheating with Russia unimpeded, thereby deeming his motives to be pure.
In assessing the President’s actions discussed in the report, it is important to bear in mind the context. President Trump faced an unprecedented situation. As he entered into office, and sought to perform his responsibilities as President, federal agents and prosecutors were scrutinizing his conduct before and after taking office, and the conduct of some of his associates. At the same time, there was relentless speculation in the news media about the President’s personal culpability. Yet, as he said from the beginning, there was in fact no collusion. And as the Special Counsel’s report acknowledges, there is substantial evidence to show that the President was frustrated and angered by a sincere belief that the investigation was undermining his presidency, propelled by his political opponents, and fueled by illegal leaks. Nonetheless, the White House fully cooperated with the Special Counsel’s investigation, providing unfettered access to campaign and White House documents, directing senior aides to testify freely, and asserting no privilege claims. And at the same time, the President took no act that in fact deprived the Special Counsel of the documents and witnesses necessary to complete his investigation. Apart from whether the acts were obstructive, this evidence of non-corrupt motives weighs heavily against any allegation that the President had a corrupt intent to obstruct the investigation.
These claims were, all of them, factually false, as I laid out at the time. But because he was the Attorney General when he made them, they carry a great deal of weight, legally, in establishing that Trump had no corrupt motive for obstructing the investigation into his ties to Russia.
And after that point, Barr made considerable effort to manufacture facts to support his bullshit claims. Most obviously, he sicced oneafter anotherafter another investigator on the Russian investigation to try to substantiate his own bullshit claims. In the case of Barr’s efforts to undermine the Mike Flynn prosecution — which investigation lies behind four of the obstruction charges laid out in the Mueller Report — the Jeffrey Jensen team literally altered documents to misrepresent the case against Flynn. Similarly, a Barr-picked prosecutor installed to replace everyone who was fired or quit in the DC US Attorney’s Office, Ken Kohl, stood before Judge Sullivan and claimed (falsely) that everyone involved with the Flynn prosecution had no credibility.
If we move forward in this case, we would be put in a position of presenting the testimony of Andy McCabe, a person who our office charged and did not prosecute for the same offense that he’s being — that we would be proceeding to trial against with respect to Mr. Flynn.
So all of our evidence, all of our witnesses in this case as to what Mr. Flynn did or didn’t do have been — have had specific findings by the Office of Inspector General. Lying under oath, misleading the Court, acting with political motivation. Never in my career, Your Honor, have I had a case with witnesses, all of whom have had specific credibility findings and then been pressed to go forward with the prosecution. We’re never expected to do so.
Again, so long as this testimony remains credible, you can’t pursue obstruction charges remotely pertaining to Flynn, meaning four of the obstruction charges are off the table.
Barr also chipped away at the other charges underlying the obstruction charges, intervening to make it less likely that Roger Stone or Paul Manafort would flip on Trump and help DOJ substantiate that, yes, Trump really did cheat with Russia to get elected. Barr also got OLC to undercut the analysis behind charging Michael Cohen for the hush payments (which may have made it impossible for SDNY to charge Trump with the same charges).
Meanwhile, John Durham toils away, trying to build conspiracy charges to substantiate the rest of Barr’s conspiracy theories. Along the way, Durham seems to be tainting other evidence that would be central to any obstruction charges against Trump. For example, in the most recent BuzzFeed FOIA release, all parts of Jim Comey’s memos substantiating Trump’s obstruction that mentioned the Steele dossier were protected under a b7(A) exemption, which is almost certainly due to Durham’s pursuit of a theory that Trump’s actions with Comey were merely a response to the Steele dossier, not an attempt to hide his Flynn’s very damning conversations with the Russian Ambassador during the transition. That is, Durham is as we speak making evidence unavailable in his efforts to invent facts to back Barr’s claims about Trump’s pure intent in obstructing the Mueller investigation.
As noted, all of these efforts are fairly self-obviously corrupt, and most don’t withstand close scrutiny (as the altered documents did not when I pointed them out). But before DOJ could pursue the obstruction charges as they existed in the Mueller Report, they would first have to disavow all of this.
Inspector General Michael Horowitz was reportedly investigating at least some of this starting in 2020. And I trust his investigators would be able to see through much of what Barr did. But even assuming Horowitz was investigating the full scope of all of them, because of the pace of DOJ IG investigations, the basis to disavow Barr’s efforts would not and will not come in time to charge those obstruction counts before the statutes of limitation expires.
The continuing obstruction statutes have barely started
In addition to obstructing the punishment of Paul Manafort and Roger Stone and undermining the theory behind the Michael Cohen hush payment charges, Bill Barr also worked relentlessly to undermine the prosecution of Rudy Giuliani.
There were undoubtedly a lot of reasons Barr needed to do that. If he didn’t, he might have to treat Trump’s extortion of Ukraine (which was the follow-up to Manafort’s Ukraine ties in 2016). Rudy was central to Trump’s own obstruction of the Mueller investigation. And if Rudy were shown to be an Agent of Russian-backed Ukrainians, it would raise significant questions about Trump’s larger defense (questions for which there is substantiation in Mueller’s 302s).
I understand there was a sense, in the middle of Barr’s efforts, that prosecutors believed they could just wait those efforts out.
And then, literally on Lisa Monaco’s first day on the job, DOJ obtained warrants to seize 16 devices from Rudy. During all the months that people have been wailing for Garland to act, Barbara Jones has been wading through Rudy’s phones to separate out anything privileged (and, importantly, to push back on efforts to protect crime-fraud excepted communications). Almost the first thing Lisa Monaco did was approve an effort to go after the key witness to the worst of Trump’s corruption.
There are many reasons I keep coming back to that seizure to demonstrate that Garland’s DOJ (in reality, Monaco would be the one making authorizations day-to-day) will not back off aggressive investigations of Trump. Even if DOJ only had warrants for the Ukraine investigation, it would still get to larger issues of obstruction, because of how it relates to impeachment. But even if it were true those were the only warrants when DOJ raided Rudy, there’s abundant reason to believe that’s no longer true. If DOJ got warrants covering the earlier obstruction or Rudy’s role in the attempted coup, no one outside that process would know about it.
Then, in recent days, DOJ made another audacious seizure of a lawyer’s communications, a seizure that only makes sense in the context of a larger obstruction investigation, this time of the January 6 investigation, yet more evidence that DOJ it not shying away from investigating Trump’s crimes.
Indeed, DOJ currently has investigations into all the nodes of the pardon dangles, too: Sidney Powell’s work for Trump on a thing of value (the Big Lie) while waiting for a Mike Flynn pardon; Roger Stone’s coordination with militias before and after he got his own pardon; promises to the Build the Wall crowd — promises kept only for Bannon — tied to efforts to help steal the election; and Rudy’s role at the center of all this.
There would be no reason to charge the pardon dangles from 2019 (the balance of the obstruction charges that Barr didn’t hopelessly sabotage) when DOJ has more evidence about pardon bribes from 2020, including the devices of the guy at the center of those efforts, and the direct tie to the January 6 coup attempt to tie it to. Indeed, attempting to charge the earlier dangles without implicating everything Trump got out of the pardons in his attempted coup would likely negatively impact an investigation into the more recent actions.
Even assuming Mueller packaged obstruction charges for DOJ to indict, rather than Congress to impeach, the deliberate sabotage Barr did in the interim makes most of those charges impossible. The exceptions — the pardon dangles — all have additional overt acts to include that sets aside Barr’s past declination.
DOJ cannot charge the Mueller obstruction charges. But they also cannot explain why not, partly because of the institutional necessity to move beyond Barr’s damage, but partly because doing so would damage the possibility of charging the continuation of that very same obstruction.
One obstruction crime is actually a conspiracy crime
I forgot one more detail that’s really important: One of the listed acts of obstruction, Trump’s efforts to have Jeff Sessions shut down the investigation, appears to be a Stone-related conspiracy crime. As I noted, that effort started nine days after Roger Stone told Julian Assange, “I am doing everything possible to address the issues at the highest level of Government.”
Especially given that it is among the weaker obstruction crimes, this is one that would be better pursued as a conspiracy crime (though it would be tangled up in the Assange extradition).
As preparation for wading into the argument about why DOJ hasn’t indicted Trump on the obstruction charges laid out in the Mueller Report, I wanted to post links to the five different versions of the Report and comment on what they might tell us of the fate of Mueller’s work under Billy Barr. The five versions (which are all available at this link) are:
March 22, 2019
This is the version of the report released in April 2019. It had four kinds of redactions:
Harm to Ongoing Matter (basically, on-going investigations)
Personal Privacy
Investigative Technique
Grand Jury
June 3, 2019
Almost immediately after the release, a bunch of outlets FOIAed the report, including Jason Leopold. This is the version released in response to those FOIAs.
The release is identical to the one released months earlier (in that no new information was unsealed). But it used FOIA exemptions to explain redactions instead of the four terms used on original release.
This is the description of those exemptions:
Because the release effectively created a category to deal with everything related to the Roger Stone trial (about which the Concord Trolls made a big stink), it provided a way to identify which of the referrals at the end pertained to Stone.
Referrals 4and 14 both pertained to the Stone trial. Because the referrals are alphabetical, those referrals might pertain to Jerome Corsi (who obviously lied to Mueller) and Stone himself.
June 19, 2020
After the Stone trial, Leopold got another copy of the report with matters revealed during the Stone trial unsealed.
While there was a bunch of newly unsealed stuff in the body of the report, the two Stone-related referrals remained redacted, albeit with one fewer exemption (b7B, a disclosure that might prevent someone from getting a fair trial, was gone).
September 18, 2020
While not a full new report, in September 2020, DOJ released a spreadsheet listing all the redactions. They ended up withdrawing the redactions for a number of things, especially pertaining to the troll farm prosecution. Among other things, the newly unsealed information revealed that what was described as an investigation into a “Foreign campaign contribution” (the Egyptian bank bribe to Trump) and investigations into Paul Manafort’s firms had both been closed. The release is useful because it seems to date the closure of those investigations to sometime between June and September of the election year.
November 2, 2020
Literally on the eve of the election, DOJ released eight new pages, as well as a full report incorporating those eight pages and the withdrawn exemptions described in September. The newly unsealed information addressed the charging decisions surrounding the hacking charges.
The single most important newly disclosed detail is a footnote that reveals the “factual uncertainties” around Stone’s knowledge that the GRU continued to hack Hillary when he purportedly coordinated the release of the Podesta emails had been referred to the DC US Attorney’s Office for further investigation. That is, the investigation into Stone’s potential coordination with Russia was not done at the time Mueller shut down the investigation, a disclosure that has yet to be reported by any major outlets.
The referrals section in the full report is somewhat mystifying. As noted, the Egyptian bribe investigation and the Paul Manafort referrals are unredacted, reflecting that those investigations had been closed. The unsealed information on the Manafort firms explains an earlier redaction convention; earlier, these entries lacked some of the exemptions all other referrals had. That’s probably for two reasons: first, those Manafort companies aren’t mentioned elsewhere in the report (and so didn’t have a b(7)(C)-4 exemption)) and were not biological persons (and so didn’t have the privacy exemption).
Here are the last two pages of the referrals for all four versions, side by side (the rest are at this link).
The two Stone-related entries, like all the other redacted ones, remained exempted for an ongoing investigation (b7(A)).
But what doesn’t appear in that list, even though you’d think (and I long thought) it would, is something describing the George Nader child exploitation and foreign influence peddling referrals, both of which had been revealed in 2019 and the former of which is undoubtedly a Mueller referral. The fact that DOJ was unsealing closed investigations but has not unsealed an entry for the Nader referral that undoubtedly was opened after a Mueller-related FBI Agent found the CSAM on Nader’s phone suggests that these referrals aren’t necessarily everything that arose out of the Mueller investigation.
The distinction may be explained by a footnote that got unsealed with the last release, explaining why Greg Craig was treated differently than Tony Podesta and Mercury, all foreign influence peddling investigations that arose out of the Manafort team. “Greg Craig and FTI Consulting were treated as outright referrals (and therefore listed in Part B, infra) because evidence about their conduct was uncovered in the course of our authorized investigations.”
There is, however, a single entry that could be a Tom Barrack referral, item 1, which is another investigation that arose out of the Mueller investigation, one that was charged once Barr got out of the way of it.
We might learn more the next time Leopold liberates an entirely new copy.
Let me be clear: I don’t think we’ll see much of these. The most recent release was 15 months ago, the statutes of limitation on any referrals will be tolling in the same time frame as obstruction charges would be. More recent 302 releases suggests there are few areas where investigation remains ongoing.
Given the way, though, that Trump’s first impeachment was largely a continuation of Paul Manafort’s Ukraine dalliances, that parts of January 6 are just a continuation of things (like Stone’s Stop the Steal and some of the people Mike Flynn worked with) that go back to 2016, and Trump’s tools of obstruction (most notably pardon dangles) remains the same, any current investigation may pull threads from past ones.
There’s a good deal more complexity remaining in the detritus of the Mueller investigation than people are allowing for.
February 11, 2022
Yesterday, DOJ released four pages showing the declination on misdemeanor CFAA charges for Don Jr, even though they could have proven it.
They also show that Mueller declined prosecution for JD Gordon for being an Agent of Russia.
Note: this post has been updated with the most recent release.
https://www.emptywheel.net/wp-content/uploads/2018/02/RobertMueller_PeteSouza_2012_Wikimedia.jpg10541500emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2022-02-09 18:02:532022-07-30 12:45:05The Five Versions of the Mueller Report
Exactly a month ago, I did a post noting that the TV lawyers claiming there was no proof that DOJ was investigating anyone close to Trump were either ignorant of or ignoring six Trump associates who were being investigated. I wanted to update that post with developments from the last month, because (in addition to the contempt prosecution for Steve Bannon), we’ve learned of investigations into at least two more Trump associates.
Note that four of these — Sidney Powell, Alex Jones, Roger Stone, and Mark Meadows — definitely relate to January 6 and a fifth — the investigation into Rudy Giuliani — is scoped such that that it might include January 6 without anyone knowing about it.
Tom Barrack
Last week, Trump’s top donor, Tom Barrack, filed a motion to dismiss his indictment for serving as an unregistered agent of the Emirates.
As he did in a prior status hearing, that motion complained that Billy Barr’s efforts to undermine this investigation failed.
[T]he government’s unjustified two-year delay in charging Mr. Barrack also warrants dismissal of the indictment. The government had all the evidence on which the indictment was based in 2019. The indictment pleads the conspiracy terminated in April 2018, and the alleged false statements occurred in June 2019. Why the government waited more than two years, and until after a change in administration, is a question only it can answer, but it should answer it especially given the paramount First Amendment interests at stake. Had the government brought this case when its investigation was complete in 2019, recollections regarding Mr. Barrack’s June 2019 interview would have been fresh and the harm from the government’s failure to make a contemporaneous record might have been mitigated. The lengthy delay has also prejudiced Mr. Barrack’s ability to identify, preserve, and secure documentary evidence and obtain evidence from witnesses whose memories have faded. The government has provided no explanation for its delay, and the specter that the government intentionally delayed bringing this case for political reasons or tactical advantage hangs heavily over this case. Because Mr. Barrack has been deprived of a fair opportunity to defend himself, the indictment should be dismissed. [my emphasis]
Barrack and DOJ are also fighting over whether Barrack can unseal discovery in an attempt to discredit this investigation.
Barrack filed the specified materials in connection with pretextual arguments in his motion to dismiss, and he all but acknowledges that he seeks their unsealing in a bid to improperly influence public opinion.
As noted before, according to reporting from 2019, this investigation was a Mueller referral, so it’s proof that Garland’s DOJ will pursue such referrals. According to CNN reporting, the indictment was all ready to go in July 2020, a year before it was actually charged. That provides a measure of how long it took an investigation that was deemed complete at a time when Barr seemingly prohibited filing it to be resuscitated under Garland: at least four months.
Barrack’s prosecution proves that DOJ can indict a top Trump associate without leaks in advance. But it will also be an early test about a Trumpster’s ability to discredit the notion that any of them can be held accountable.
Jury selection for Barrack’s trial is now scheduled to start on September 7.
Rudy Giuliani
Since my last post on this topic, Special Master Barbara Jones reported on the progress of the privilege review of 16 devices seized from Rudy Giuliani on April 28, 2021.
Here’s a summary of what that review and the earlier known seizures of Rudy’s communications in the Ukraine-related investigation into Rudy:
The known warrants for Rudy’s phones pertain to whether, in the lead-up to Trump’s impeachment for trying to coerce Ukraine’s assistance in the 2020 election, Rudy was acting as an unregistered agent of Ukraine.
There’s good reason to believe DOJ could show probable cause to access Rudy’s phones from April 2018 (before he formally became Trump’s lawyer), because during that period he was attempting to buy Michael Cohen’s silence with a pardon. There’s equally good reason to believe that act of obstruction is one of the referrals still redacted in the Mueller Report.
On or about April l 7, 20 l 8, Cohen began speaking with an attorney, Robert Costello, who had a close relationship with Rudolph Giuliani, one of the President’s personal lawyers. 1022 Costello told Cohen that he had a “back channel of communication” to Giuliani, and that Giuliani had said the “channel” was “crucial” and “must be maintained.” 1023 On April 20, 2018, the New York Times published an article about the President’s relationship with and treatment of Cohen. 1024 The President responded with a series of tweets predicting that Cohen would not ” flip” :
The New York Times and a third rate reporter . . . are going out of their way to destroy Michael Cohen and his relationship with me in the hope that he will ‘flip. ‘ They use nonexistent ‘sources’ and a drunk/drugged up loser who hates Michael, a fine person with a wonderful family. Michael is a businessman for his own account/lawyer who I have always liked & respected. Most people will flip if the Government lets them out of trouble, even if it means lying or making up stories. Sorry, I don’t see Michael doing that despite the horrible Witch Hunt and the dishonest media! 1025
In an email that day to Cohen, Costello wrote that he had spoken with Giuliani. 1026 Costello told Cohen the conversation was “Very Very Positive[.] You are ‘loved’ … they are in our corner … . Sleep well tonight[], you have friends in high places.”1027
Similarly, there’s good reason to believe DOJ could show probable cause to access Rudy’s phone for his involvement in Trump’s attempted coup, not least because Rudy himself tweeted out some texts he exchanged with a Proud Boy associate discussing specific insurrectionists in the aftermath of the attack.
We wouldn’t know if DOJ had obtained warrants for those separate periods, because those periods will be covered by Jones’ review one way or another.
But because of the temporal scope Judge Paul Oetken approved last year, Jones has completed a privilege review of all communications that date between January 1, 2018 through April 28, 2021 on 8 of the devices seized from Rudy (April 28 was the day the devices were seized). We can’t know what dates during which Rudy was using those 8 devices. It could well be that they were older phones with nothing recent.
But we know that of the communications on the phone with the most texts and chats — the phone designated 1B05 — the government received 99.8% of any communications dated between January 1, 2018 and April 28, 2021 and they received those communications no later than January 21.
Of particular note, Rudy at first tried to claim privilege over 56 items from phone 1B05. He thought better of those claims in 19 cases. And then, after Jones deemed 37 of them not to be privileged, he backed off that claim as well. During a period when Jones and Rudy’s team would have been discussing those 37 items, Judge Oetken issued a ruling saying that the basis for any privilege claims (but not the substance of the communications) would have to be public. After precisely the same kind of ruling in the Michael Cohen Special Master review, Trump backed off his claim of privilege for Cohen’s recording about the hush payments. That may be what persuaded Rudy to withdraw his claim of privilege over those materials here, as well.
And whether or not DOJ has already accessed the communications Rudy conducted during 2020 and 2021 on any of the 16 devices seized from him, we know all the phones Rudy was using in April 2021 are in DOJ’s possession and that Judge Oetken has already approved a privilege review to cover those communications.
In any case, the details of the Rudy investigation show, at a minimum, that Barr went to extraordinary lengths to attempt to kill this investigation (and may have even ordered that FBI not review the materials seized in 2019). It took mere weeks after Garland took over, however, for the investigation to take very aggressive steps.
It also shows that SDNY managed to renew this investigation without major leaks.
Robert Costello
Last Friday, Steve Bannon revealed that DOJ had seized the toll records of his lawyer, Robert Costello, the same guy that would be at the center of any predication for any investigation into Rudy’s attempts to obstruct the Mueller investigation. Some outlets are claiming that this was just part of the investigation into Bannon, but that cannot be right, for several reasons. First, DOJ didn’t ask for the most intrusive set of those records — email metadata from between March 5 and November 12, 2021 — until the day they indicted Bannon. The returns on those requests could not have been presented to the grand jury, because DOJ didn’t receive them until December 7. Plus, scope of that request not only dates back to before the September 23 subpoena that is the basis for the Bannon contempt prosecution, it dates back before the January 6 Committee that issued the subpoena in the first place. DOJ obtained those Internet toll records for a reason that extends beyond the subpoena fight; they cannot pertain (just) to the known prosecution of Bannon.
It may well be they relate to obstruction related to Rudy though. Here’s DOJ’s letter responding to Bannon’s complaints about this seizure, which given some confusion bears further discussion.
We write in response to your January 6, 2022, letter requesting information about internal deliberations and investigative steps relating to Mr. Costello and any other attorneys who have represented Mr. Bannon. As you are aware, and as we discussed in a phone call with Mr. Corcoran and Mr. Schoen on December 2, 2021, Mr. Costello represented Mr. Bannon before the January 6th Select Committee (“the Committee”) in relation to the subpoena it issued to Mr. Bannon and is, therefore, a witness to the conduct charged in the Indictment. We understand that attorney Adam Katz also represented Mr. Bannon with respect to the Committee and, therefore, also is a potential witness. We are not aware of any other attorneys who represented Mr. Bannon with respect to the Committee.
Aside from the information that Mr. Costello voluntarily disclosed on behalf of Mr. Bannon during the investigation of this matter, the Government has not taken any steps to obtain any attorney work product relating to any attorney’s representation of Mr. Bannon or to obtain any confidential communications between Mr. Bannon, Mr. Costello, and Mr. Katz, or between Mr. Bannon and any other attorneys.
We have provided all discoverable material in the prosecution team’s possession, custody, or control relating to Mr. Costello’s and Mr. Katz’s involvement in the conduct charged in the Indictment.
The first paragraph explains a warning DOJ gave when Costello first raised noticing an appearance in the contempt prosecution for Bannon (it’s likely Costello had been tipped off by his firm that DOJ had obtained his toll records by that point). DOJ makes clear that, by voluntarily sitting for two meetings at which FBI agents were present, Costello made himself a witness about the basis for which Bannon gave for blowing off the Committee subpoena. As I have noted, Costello gave materially inconsistent answers at that meeting, likely giving the FBI probable cause to investigate whether he had made false statements; the easiest and least intrusive way to test whether his claims were true was to test whether his claims about the existence and timing of communications with Trump’s lawyers were true or not — thus the toll record seizure.
The remaining two paragraphs disclaim any impact on Bannon. Call records are not work product and, while sensitive, are not treated as privileged (and in any case, date to a period in which Costello was not representing Bannon criminally). The interviews were work-product, claims about the advice Costello gave Bannon (including the email Costello described in which he told Bannon to be BEWARE because he was likely to be referred to DOJ for prosecution). But Costello shared that work-product voluntarily. DOJ has not otherwise obtained the work-product or confidential content of Costello pertaining to Bannon.
That paragraph says nothing about Costello’s representation of Rudy, though.
And the following paragraph makes it more likely this statement intentionally stops short of covering all of Costello’s work product. It limits the statement about materials in its possession to the prosecution team (excluding, for example, SDNY prosecution teams). It doesn’t address confidential communications between Rudy and Costello. And for good measure, it limits its statements to Costello’s involvement in the January 6 subpoena, not other matters.
Costello may not count as a Trump associate directly. But this is all about Trump’s extended effort to obstruct investigations into his conduct. And because of the way Costello has, on at least two occasions, been the weak link that pierced privilege covering such cover-ups, may be a key investigative target.
Sidney Powell
Sidney Powell may be another key lawyer who pierced privilege.
Several different outlets have reported that there is a grand jury investigation into Sidney Powell’s grifting off lies about election fraud.
Since my last post on investigations into Trump’s associates, Sidney Powell’s lawyer revealed she is “cooperating” in that investigation, though in contemplating “cooperation” with the January 6 committee, she is reserving privilege claims about “advice” to Donald Trump.
A lawyer for Sidney Powell, a well-known, Trump-connected attorney, acknowledged that her organization’s fundraising connected to the 2020 election is subject to an ongoing federal criminal investigation.
Powell’s lawyer, Howard Kleinhendler, told CNN that his client “is cooperating” with the investigation into her organization, Defending the Republic, by the US Attorney’s Office in the District of Columbia. That cooperation includes “rolling productions” of documents.
[snip]
Still, when the committee asks Powell about communications she had with Trump, that is “going to get a little hairy,” Kleinhendler told CNN.
He said Powell believes that the times Trump called her to ask for legal advice may be covered by attorney-client privilege — even if he never paid her to be his or his campaign’s lawyer. Powell never worked as a lawyer for the former President personally or for the Trump campaign, Kleinhendler said.
“We’ll have to deal with that, and we’ll have to try to discuss with the committee to see how” to handle privilege issues, Kleinhendler said.
But Powell can’t claim privilege for the bulk of the period during which she was helping Trump steal the election. After Trump claimed Powell represented him on November 15, 2020, Rudy stated as clearly as he can manage on November 22 that, “Sidney Powell is practicing law on her own. She is not a member of the Trump Legal Team. She is also not a lawyer for the President in his personal capacity.”
With that statement, Rudy effectively waived privilege for any communications implicating both of them from that date forward, long in advance of a December 18 meeting at which Powell purportedly told him about all the communications she sent him in the interim.
Similarly, most of these events post-date the time, November 25, when Powell can credibly claim to be representing Mike Flynn in an effort to nullify the consequences of his lies and foreign agent work, because that’s when Trump pardoned Flynn. Certainly, Powell’s claim to be criminally representing Flynn ended no later than December 8, when Emmet Sullivan dismissed the case. So she may want to claim privilege, but well before the critical meeting between Rudy, Powell, Flynn, and Patrick Byrne on December 18, all visible basis for that claim was affirmatively gone, and for anything seized from her email provider, she’s likely not going to be involved in making that claim anyway.
Mark Meadows
In a number of posts, I have argued that DOJ would be better off treating the January 6 contempt referral as, instead, a referral into obstruction of justice for the way Mark Meadows withheld or deleted evidence pertaining to the coup attempt.
I can’t prove that has happened.
What is certain, however, is that Deputy Attorney General Lisa Monaco confirmed that DOJ is investigating the fake electors.
“We’ve received those referrals. Our prosecutors are looking at those and I can’t say anything more on ongoing investigations,” Monaco said in an exclusive interview.
And the January 6 contempt referral made clear that communications in Meadows possession show that he was at the center of that effort.
Mr. Meadows received text messages and emails regarding apparent efforts to encourage Republican legislators in certain States to send alternate slates of electors to Congress, a plan which one Member of Congress acknowledged was ‘‘highly controversial’’ and to which Mr. Meadows responded, ‘‘I love it.’’ Mr. Meadows responded to a similar message by saying ‘‘[w]e are’’ and another such message by saying ‘‘Yes. Have a team on it.’’34
34Documents on file with the Select Committee (Meadows production).
Meadows has been frantically trying to ensure whichever of these communications occurred on his personal accounts get shared with the Archives. Which means DOJ now knows they can learn details of the fake elector conspiracy by obtaining those records from the Archives.
Alex Jones
Over the last year, DOJ has collected a great deal of evidence that the Oath Keepers, the Proud Boys, and an alarming number of former Marines worked together to open a second breach on the Capitol via the East doors. Instrumental to the success of this breach were a large number of MAGA tourists who joined in the breach. DOJ has proof that at least some of them were there because Alex Jones had lured them there by lying about a second Trump speech on the East side of the building.
In a November DOJ response in the Shroyer case, Alex Jones was referred to as Person One, as numerous others believed to be under active investigation have been described. That filing debunked the cover story that Shroyer and Jones have used to excuse their actions on January 6. Judge Tim Kelly, who is also presiding over the most important Proud Boys cases, is currently reviewing Shroyer’s First Amendment challenge to his arrest.
This strand of the investigation has likely necessarily lagged the exploitation of former Alex Jones’ employee Joe Biggs’ iCloud and phone, which were made available to Biggs’ co-travelers in August. This post has more on the developments in the Montoya and Shroyer cases, including that a different prosecutor recently took over Monotya’s case.
Roger Stone
Roger Stone, who has close ties to both the Oath Keepers and Proud Boys who coordinated the attack on the Capitol, has shown up repeatedly in the Oath Keeper conspiracy. In March, DOJ debunked Connie Meggs’ claim not to know her co-conspirators by including a picture of an event she did with Roger Stone and Graydon Young (this was close to the time that Connie’s husband Kelly organized an alliance between Florida militias).
In a May 25 FBI interview, Mike Simmons, the field commander for the Oath Keepers on January 6, appears to have been specifically asked why Simmons had so many conversations with Joshua James, who was providing security for Roger Stone at the Willard the morning of the insurrection. Simmons appears to have explained that James called him every time Stone moved.
In June, Graydon Young, the Floridian who attended that Stone event with Connie, entered a cooperation agreement. Also in June, Mark Grods, one of the Oath Keepers who had been at the Willard that morning, entered a cooperation agreement. In September, Jason Dolan, a former Marine from Florida who also interacted with Stone in advance of the insurrection and who was waiting there on January 6 as the other Oath Keepers, a number of Proud Boys (including former Alex Jones employee Joe Biggs) and Alex Jones himself all converged at the top of the East steps just as the doors were opened from inside, entered a cooperation agreement.
Erik Prince
In my last post, I described a grand jury investigation into a powerful Trump associate that had subpoenaed witnesses in the investigation in the second half of last year. NYT just disclosed that investigation, which is into Erik Prince.
Mr. Prince is separately under investigation by the Justice Department on unrelated matters, according to people familiar with the case. The scope of that investigation is unclear.
The investigation reflects a reopening of an investigation Billy Barr shut down in 2019-2020. What’s interesting about it is the scope seems somewhat different and the investigating District is different than the earlier investigation. That may suggest that, for investigations that Barr shut down, DOJ would need to have a new evidence to reopen it. But the existence of this investigation shows, again, that Garland’s DOJ will go after powerful Trump associates.
In any case, I keep laying all this out, and TV lawyers keep angrily insisting that this public evidence does not exist.
I can’t guarantee that any of these investigations will lead to charges (or, in the case of Bannon and Barrack, convictions). Investigations alone will not save democracy.
But there is abundant evidence that DOJ is not shying away from aggressively investigating the suspect criminal conduct of Trump flunkies.
https://www.emptywheel.net/wp-content/uploads/2020/11/Screen-Shot-2020-11-20-at-10.41.19-AM.png11182022emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2022-02-08 06:47:572022-02-10 17:00:28The Eight Trump Associates Whom DOJ Is Investigating
As I explained in this piece, the lawyer who represents both Rudy Giuliani and Steve Bannon — and who has been at the center of Trump’s pardon-dangling for almost three years — had two meetings with the Bannon prosecution team, where he made a number of claims that could not all be true. The first meeting Robert Costello had with DOJ was on November 3, with a follow-up on November 8, 2021.
Just two of the sets of mutually contradictory claims Costello made in his first interview are:
COSTELLO had not had communication with attorneys for TRUMP prior to that date. [October 18, 2021, when Trump filed a lawsuit challenging Executive Privilege waivers for the January 6 Committee]
COSTELLO did not discuss disposing of any documents requested in the Select Committee subpoena with any attorneys who represented former President TRUMP.
Even though MICHAEL FLYNN was not an attorney, he was present during attorney-client-protected discussions. Those particular attorneys represented former President TRUMP and CLARK informed COSTELLO not to respond to item 17.
I would imagine there’s no better way to get the FBI to start investigating you for false statements then by making a bunch of mutually contradictory claims in one interview.
There were certainly other claims Costello made which he should have known to be false. For example, given that his other client, Rudy Giuliani, put out a statement asserting that Sidney Powell did not work for Trump, Costello likely knows that Powell’s presence at a meeting, along with non-lawyer Mike Flynn, would not implicate Trump’s privilege, even if a meeting between Costello client Bannon and Costello client Rudy could itself be considered privileged, which is a fantastic stretch in any case. But that’s a claim, he told the FBI, that he advised Bannon to make in refusing to respond to the January 6 subpoena by invoking Executive Privilege.
Nevertheless, the FBI did not have to obtain the content of Costello’s communications to test whether he lied at that meeting on November 3, given that so many of his fact claims could be tested simply by obtaining his call and email records to see whether he was speaking with Trump lawyers (and those for Mark Meadows, Dan Scavino, and Kash Patel) and if so, when, about which Costello made affirmative denials in his meeting with DOJ. If he was discussing with other lawyers how to deal with the Select Committee investigation at a time he claimed he was not, the FBI would have deemed that a suspected lie worthy of more investigation.
And that’s what the FBI did, making eight requests for records (four for phone records, four for Internet records, apparently covering his work and personal emails and phones) resulting in 790 pages, total.
Given the abundant detail included in the Motion to Compel (undoubtedly included to provide hypothetical co-conspirators some idea of the extent of the record seizure, including that no content was obtained), Bannon’s claims seem to be predictably overblown. There appear to be three grand jury subpoenas and just one 2703(d) order (to an Internet provider, likely someone like Google). That is, some of the eight requests appear to be an effort to figure out which phones and email were of interest, in advance of obtaining toll record themselves. Indeed, Bannon makes much out of the fact that DOJ obtained payment method associated with Costello’s phone, available with a basic subscriber request. And unless Costello is a remarkably stingy user of SMS texting, the request for those toll records appears to be narrowly tailored either by time or interlocutor; there are just two pages of SMS text toll records.
Here’s a summary of what the government appears to have obtained:
Bates stamp range: US 001093-001883
US 001093: Grand jury subpoena
US 001145-001768: 623-page return from Internet provider showing IP activity, status (read or unread, inbox, etc.) and other details concerning emails and other activity offered by the carrier obtained with a Section 2703(d) Order on November 11, 2021 [US 001733] that includes a case number [US 001732-001735] and returned on December 7, 2021. Returns include:
US 001151-001249: 98 pages showing IP activity for the email account sought from March 5, 2021 through November 12, 2021, as well as a report on what other services from the provider Costello uses
US 001733, 001735, 001740, and 001742: Several references to a 2703(d) order or equivalent
US 001863: Subscriber record showing payment method for Costello’s cell phone
US 001866: Costello’s data usage
US 001872; Grand jury subpoena
US 001874-001875: SMS (text messaging) information, including the numbers to which texts were sent and from which they were received
The government doesn’t appear to be treating these records as evidence in their contempt case against Bannon. As the Bannon filing notes, the government only turned them over on January 4, after stating (before they had obtained the bulk of these records) that the evidence in their case-in-chief against Bannon only consisted of 200 documents.
It is curious that Government counsel delayed producing these documents until January 4, 2022. On November 18, 2021, the parties appeared before this Court. At that proceeding, Government counsel insisted that the Government was ready for trial, that this is a simple and straightforward case, and that it was ready immediately to provide Mr. Bannon with the discovery in the case, which it described as “less than 200 documents,” with “most of” it purportedly comprised of “materials the defendant already has ….” [11/18/2021 Hearing Tr. at 3].
Costello first joined Bannon’s criminal defense team over two weeks after Bannon was indicted, and after DOJ pointed out that Costello’s representation would pose a problem for any Advice of Counsel defense. Given that DOJ obtained toll records from Costello’s firm, it’s possible they tipped him off and he joined the Bannon team to create this problem after that.
Bannon’s filing also notes that the government hasn’t provided the subpoenas obtaining this material, as they would have if the subpoenas targeted him, personally.
Nowhere in the Government’s production was a copy of a court order authorizing the Government’s actions, nor was there a copy of any subpoena for the records, nor was there even any application for a court order or for authorization from the Department of Justice for subpoenas intended to obtain defense counsel’s personal and professional telephone and email records.
That makes sense: Bannon can’t be held responsible for the things his (and Rudy’s) lawyer says while sitting with the FBI. Costello is the one who made mutually contradictory claims, not Bannon.
But, at least as Bannon tells it, the team that seized these records appears to have taken little care to protect Costello’s other clients.
Furthermore, there was nothing in the production that indicated any effort to limit the access of the prosecutors assigned to this case to defense counsel’s personal and professional records, nor was there any indication of any filter in place to distinguish between attorney-client privileged or work-product privileged information that could be garnered from the records the Government obtained and non-privileged materials, nor was there any indication of any filter intended to protect confidential and privileged related to other clients of Mr. Costello and his law firm or intended to keep the prosecutors handling this case from access to any such privileged material.
Indeed, after wailing a bit about DOJ’s oblique response when asked about this seizure, the Bannon filing returned to Costello’s other clients and “witnesses” consulted in those representations.
Beyond all of the above, the Government’s response ignores the damage its actions risked causing for other clients of Mr. Costello and his law firm, for telephone calls and emails to and from other clients and witnesses consulted in relation to their cases would now be exposed by the Government’s efforts to obtain records for all of the attorney’s emails and telephone records.
And in fact, in a letter responding to Bannon’s questions about these records, DOJ made no representations about work product related to Costello’s other clients, even while emphasizing what the prosecution team (which is different from DOJ as a whole) has in its possession.
Aside from the information that Mr. Costello voluntarily disclosed on behalf of Mr. Bannon during the investigation of this matter, the Government has not taken any steps to obtain any attorney work product relating to any attorney’s representation of Mr. Bannon or to obtain any confidential communications between Mr. Bannon, Mr. Costello, and Mr. Katz, or between Mr. Bannon and any other attorneys.
We have provided all discoverable material in the prosecution team’s possession, custody, or control relating to Mr. Costello’s and Mr. Katz’s involvement in the conduct charged in the Indictment. The Government understands its discovery obligations under Federal Rule of Criminal Procedure 16; the Jencks Act; and Brady, Giglio, and their progeny, and will continue to comply with them should additional discoverable material come into the prosecution team’s possession, custody, or control.
That’s significant because of the temporal scope of the email metadata obtained: from March 5 through November 12, 2021, basically the last event for which Costello was representing Bannon in the Build the Wall criminal prosecution and his indictment on these new charges (though, again, Costello didn’t join his defense team for over two weeks). These records don’t include any period when Costello was criminally representing Bannon.
But they do cover a far broader period than would be necessary to understand what communications Costello had with lawyers for Donald Trump after Bannon was subpoenaed by the January 6 committee on September 23. Indeed, they cover a broader period than the entire January 6 Committee, which was created by House Resolution 503 on June 30, 2021.
Presumably, DOJ saw something in the initial records they were seeking — or in records obtained by others, or in another unseen ongoing investigation — to scope the Internet request for the entirety of the period between Costello’s past and current criminal representation of Bannon. Or they were already interested in Costello (for whom there was a possible referral in the Mueller investigation), and his interview with the FBI extended that interest.
That suggests this really isn’t about Bannon.
But the seized records do include the entirety of the period when Costello was helping Rudy review the contents of 16 devices seized by SDNY. Of note, Trump could have, but chose not to participate in that Special Master process. Because he moved to intervene, Dmitry Firtash is permitted to review the records seized from Victoria Toensing to protect his own interests, but Trump’s lawyers should not be getting notice of what was seized from Rudy.
Indeed, the conversations of interest regarding the Bannon representation happen to have taken place during a period during which Costello had gotten an extension to review the contents of the first seven devices seized from Rudy.
On September 28, 2021, I directed that Mr. Giuliani complete his review of the data contained on seven of these devices by October 6, 2021, which was later extended to October 12, 2021. These seven devices contain 2,226 items in total dated on or after January 1, 2018. Mr. Giuliani designated 3 items as privileged, and I am reserving decision on those 3 items. The remaining 2,223 items have been released to the Government.
Costello told the FBI he had no conversations with any Trump lawyers for this period. Even if he had conversations with other Trump lawyers during this review problem, it would conflict with what he told the FBI in his Bannon-related meeting.
It’s certainly possible that the only warrants at issue in the Special Master review are the Ukraine-related ones overtly used to seize Rudy’s devices, and that the SDNY team is completely excluded from accessing these records; if that’s the case, it would suggest there’s no investigation into Rudy out of DC, particularly not one in which JP Cooney or Molly Gaston are participating, both senior prosecutors at DC USAO.
Or there’s something far more interesting going on.
Update: I realized after I posted this that Costello’s 302s were included in the 790 pages Bannon complained about, meaning he claimed things were call records when instead they were the obvious justification for the call records. I’ve added and bolded those pages above.
https://www.emptywheel.net/wp-content/uploads/2019/12/rudy-bug-eyes-3-2.jpg7301297emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2022-02-06 10:33:392022-02-07 12:48:37When Lawyers’ Lawyers Need Lawyers: The Import of Robert Costello’s Toll Records — for Bannon, for Rudy, and for Donald Trump
By my math, today marks the 1,000th day after Bill Barr first appointed John Durham to undermine the Russian investigation on May 13, 2019. Today marks a major new milestone in Durham’s effort to substantiate the conspiracy theories Barr sent him off chasing years ago.
The Durham investigation has now lasted 326 days longer than the Mueller investigation, not quite half again as long. But I’m sure Durham will last the 11 days required to hit that milestone, too.
At this stage in the aftermath of the Mueller investigation, Billy Barr had started his campaign to undo all punishment arising from it. January 2020 was the month when Barr took the first steps to protect Flynn from the new crimes he had committed in his effort to blow up his past prosecution by appointing Jeffrey Jensen to review the Flynn prosecution — an effort that would end with DOJ admitting that they had altered some notes.
Durham, by contrast, has had a productive last month. Four months after indicting Michael Sussmann, he learned that Sussmann had provided at least one other anonymous tip on behalf of Rodney Joffe, in addition to the one Durham has labeled a crime. Durham also discovered two phones used by James Baker, which he had never before bothered to look for in DOJ IG custody, precisely where he had been told one of them was years earlier.
At the rate Durham is discovering basic things he should have learned years before indicting Sussmann (and, probably, Igor Danchenko), he might be prepared to make a responsible prosecutorial decision about whether to charge these cases in another two years or so.
Update: Typo in table fixed.
https://www.emptywheel.net/wp-content/uploads/2022/02/Screen-Shot-2022-02-06-at-1.03.45-PM.png19422316emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2022-02-06 08:21:102022-02-06 12:29:35The John Durham Investigation Turns 1,000 Days Old Today
In an analysis piece earlier this week, the NYT reported as newsworthy that,
Over the weekend, Mr. Trump also dangled, for the first time, that he could issue pardons to anyone facing charges for participating in the Jan. 6 attack if he is elected president again — the latest example of a yearslong flirtation with political violence.
Politico followed that with a report that Trump at least considered blanket pardons for those who might be implicated in January 6.
“Is it everybody that had a Trump sign or everybody who walked into the Capitol” who could be pardoned? Trump asked, according to that adviser. “He said, ‘Some people think I should pardon them.’ He thought if he could do it, these people would never have to testify or be deposed.”
Offering preemptive pardons is not a new idea for Trump. According to Michael Cohen, Trump also entertained bulk pardons with the Russian investigation before Jay Sekulow figured out that it would make it easier for people to testify against him.
Q What is – you had a conversation with Jay Sekulow about something called a pre-pardon?
A Yes.
Q How many conversations did you have with him about pre-pardoning
A One or two.
Q And what did he say to you?
A The problem with a pre-pardon is that you have to answer every question because technically you have immunity, so you can’t assert any Fifth Amendment privilege.
Q Let’s back up for a second, because that presupposes that you’ve already discussed the idea of you getting a pardon. Did Jay Sekulow tell you that the President was considering giving you a pardon?
A That’s not the way that he stated it, but we had a conversation, one at least – I believe it may have been two – and I am not 100 percent certain of the exact date that that occurred, but the concept of a pre-pardon was discussed, yes.
Q Okay. So if you said that’s not exactly how he said it, what do you remember him saying about the idea of you getting a pardon?
A Well, it wasn’t just me. It was globally, in order to, I guess, shut down, you know, this investigation. And I had said to him, you know, what .. well, you know, there’s always the possibility of a pre-pardon. And –
Q Let’s take your time, because it’s important for us to understand not just the gist of the conversation but who said what exactly. All right? So you mentioned something called a global pardon. Did he use that term?
A No.
Q Okay. What do you mean by a global pardon?
A Okay. That in order to shut this whole thing down, that this is how they were potentially going to do it, and everybody would just get a pardon. And said, well, it wouldn’t be a pardon, it would be a pre-pardon, because nobody’s been charged yet. So it ultimately just became, that’s not really something that could be accomplished, because then they’d have the right, again, to ask you questions, everyone on the team.
Q So when you say everyone, who do you mean?
A I guess whoever it is that you started to request to come in, testify, subpoenaed.
It is the case that Trump has now dangled pardons at a time he doesn’t have the power to grant them. Even that is not new, though, given that Roger Stone was brokering a Julian Assange pardon no later than November 15, 2016 and probably starting even before the election, in October 2016.
This latest dangle is more newsworthy, though — and for reporters who don’t want to enable Trump’s authoritarian power, ought to be reported as — an attempt to reclaim power he already lost after reneging on promises of pardons made while he still had the power to grant them.
It is not news that Trump used pardon dangles as one tool to attempt a coup on January 6. At least five people directly involved in the coup attempt benefitted from pardons, some awarded at key times in the planning process, with Steve Bannon’s issued at the last possible moment.
It is not news that Trump is making pardon dangles publicly to try to bend the will and buy the silence of others. This latest pardon dangle comes in the wake of five events, all of which pose a direct threat to Trump:
December 15: The Select Committee contempt referral for Mark Meadows that puts him at risk of Presidential Records Act and obstruction prosecution
January 19: SCOTUS’ refusal to reverse the DC Circuit order allowing the Archives to share Trump records
January 19: The delivery to prosecutors, on January 19, of a large number of texts and messages from Rudy Giuliani’s phones
January 20: The Select Committee request for Ivanka’s testimony, which strongly suggested she has violated the Presidential Records Act
January 21: The report from Sidney Powell’s attorney that she is “cooperating” in her own prosecution and the Select Committee
What’s newsworthy is that Trump is trying this tack after reneging on promises to three of the people involved (during the last days of his Administration, there were reports that Meadows, Rudy, and Ivanka all might receive pardons) that Trump made in the course of planning for the coup.
So I’d like to tell the story of five pardons — three granted, and two withheld — in the context of Trump’s attempted coup on January 6.
Michael Cohen pardon dangle
This first pardon necessary to understand what Trump is up to is one that didn’t happen: The pardon dangle to try to silence Michael Cohen. As the Mueller Report described. in the wake of a raid on Cohen, Robert Costello started reaching out as an envoy for Rudy Giuliani, offering pardons.
On or about April 17, 2018, Cohen began speaking with an attorney, Robert Costello, who had a close relationship with Rudolph Giuliani, one of the President’s personal lawyers. 1022 Costello told Cohen that he had a “back channel of communication” to Giuliani, and that Giuliani had said the “channel” was “crucial” and “must be maintained.” 1023 On April 20, 2018, the New York Times published an article about the President’s relationship with and treatment of Cohen. 1024 The President responded with a series of tweets predicting that Cohen would not ” flip” :
The New York Times and a third rate reporter . . . are going out of their way to destroy Michael Cohen and his relationship with me in the hope that he will ‘flip. ‘ They use nonexistent ‘sources’ and a drunk/drugged up loser who hates Michael, a fine person with a wonderful family. Michael is a businessman for his own account/lawyer who I have always liked & respected. Most people will flip if the Government lets them out of trouble, even if it means lying or making up stories. Sorry, I don’t see Michael doing that despite the horrible Witch Hunt and the dishonest media! 1025
In an email that day to Cohen, Costello wrote that he had spoken with Giuliani. 1026 Costello told Cohen the conversation was “Very Very Positive[.] You are ‘loved’ … they are in our corner … . Sleep well tonight[], you have friends in high places.”1027
According to Cohen, Rudy Giuliani and Robert Costello were at the heart of Trump’s efforts to buy silence.
But Cohen couldn’t be silent about his own plight, and so facing prosecution from that and after a privilege review of his files discovered the recording Cohen made of Trump’s hush payments, he started cooperating with Mueller, helping them to understand what Trump was trying to hide about his ties with the Kremlin during the election.
Cohen paid for that decision, too. He did more time, for example, than Roger Stone, who (like Cohen) had kept blackmail material on Trump. As such, Cohen served as a useful example to Trump: if you cooperated against Trump, Trump would ensure that you suffered a worse outcome than those who had sustained the lies to protect him.
Roger Stone commutation
Roger Stone kept a notebook recording every conversation he had with Donald Trump during the 2016 election. After the election, according to an unreliable October 2018 interview that Steve Bannon had with Mueller’s team, Stone got a meeting to which he brought what appears to be that notebook. Trump asked Bannon to attend, it seems, to ensure that Stone would be kicked out after a short time.
While BANNON was at Breitbart in 2013-2015, BANNON had a strong relationship with [redacted]. BANNON heard from [redacted] STONE was still talking to Trump and was an advisor. STONE subsequently made those statements to BANNON as well. BANNON was suspect and upset. BANNON believed you had to eep TRUMP “on program.” While BANNON was on the Trump Campaign he never heard any mention of STONE from TRUMP or anyone else on the campaign. After the win, STONE tried a full court press in order to get a meeting with TRUMP. [redacted] eventually set up a meeting with TRUMP and STONE in early December 2016 on the 26th floor of Trump Tower. TRUMP didn’t want to take the meeting with STONE. TRUMP told BANNON to be in the meeting and that after 5 minutes, if the meeting hadn’t concluded, to throw STONE out. STONE came in with a book he wrote and possibly had a folder and notes. [full sentence redacted] TRUMP didn’t say much to STONE beyond “Thanks, thanks a lot.”. To BANNON, this reinforced STONE [redacted] After five to six minutes, the meeting was over and STONE was out. STONE was [redacted] due to the fact that during the meeting TRUMP just stared.
That was Bannon’s second-to-last interview with Mueller’s team. A week after his last interview, at which Bannon also appeared before the grand jury, the FBI raided Stone’s homes. One of the things they explicitly looked for was that notebook.
53. On May 8, 2018, a law enforcement interview of [redacted] was conducted. [redacted] was an employee of Stone’s from approximately June 2016 through approximately December 2016 and resided in Stone’s previous New York apartment for a period of time. [redacted] provided information technology support for Stone, but was not f0rmally trained to do so. [redacted] was aware that Stone communicated with Trump during the 2016 presidential campaign, and afterward, both in person and by telephone. [redated] provided information about a meeting at Trump Tower between Trump and Stone during the time [redacted] worked for him, to which Sterne carried a “file booklet” with him. Stone told [redacted] the file booklet was important and that no one should touch it. [redacted] also said Stone maintained the file booklet in his closet.
54. On December 3, 2018, law enforcement conducted an interview of an individual (“Person 1 “) who previously had a professional relationship with a reporter who provided Person 1 with information about Stone. The reporter relayed to Person 1 that in or around January and February 2016, Stone and Trump were in constant communication and that Stone kept contemporaneous notes of the conversations. Stone’s purpose in keeping notes was to later provide a “post mortem of what went wrong.”
In November 2019, Stone was convicted for lying about the nature and Trump’s awareness of his back-channel to the Russian operation. Billy Barr went to extraordinary lengths to attempt to minimize the punishment Stone would suffer for covering that up. He went so far as claiming threats against a federal judge by Roger Stone and the Proud Boys, threats which foreshadowed January 6, were a mere technicality.
But in July 2020, the moment when Stone would have to report to prison approached. Stone made several public appearances telling a story that was impossible as told, the gist of which was that prosecutors had promised Stone they would fight for leniency if he would testify about the content of a subset of the conversations he had with Trump during the election. That had the desired effect: Trump commuted Stone’s sentence before he reported for prison, protecting Stone in a way he had not done for Paul Manafort.
Billy Barr minimized the damage this should have done to Trump’s electoral chances. The Attorney General sat on a footnote of the Mueller Report that revealed when all this occurred, Roger Stone was still under investigation for the hack-and-leak with Russia. Barr released that literally on the eve of the 2020 election, and to this day no major outlet has reported that Stone was still under investigation for conspiring with Russia after the Mueller Report was released.
Mike Flynn pardon
As I laid out in this post, Mike Flynn got next to nothing out of his his two year attempt to renege on his plea agreement with Robert Mueller.
Replaced competent lawyers with incompetent TV grifters
Released evidence he lied to his lawyers doing the FARA filing
Consented to waive privilege so DOJ could find more proof he lied
Debunked a slew of conspiracy theories
Got really damning transcripts released
Served 708 days of supervised release
Joined a gang
Got one of his gang members prosecuted for death threats against Judge Sullivan
Got a ruling — and, later, a clear statement from DOJ — that no abuse occurred
Exposed his son to further prosecution
Exposed DOJ to further scrutiny
Proved Judge Sullivan’s point about selling the country out
After 18 months of making repeatedly debunked claims that he had been victimized by DOJ, however, he did get the most expansive pardon Trump gave, one pardoning not just his underlying crimes, but also the crimes he committed during the process of performing that victimization.
Given everything that has happened since, it’s worth considering Flynn’s performance as a victim as part of Trump’s reelection campaign.
That became most evident on September 29, 2020. Earlier in the day, in a status hearing, Sidney Powell confessed that weeks earlier, she had spoken to Trump about the case, and asked him not to pardon Flynn.
More curious still, she admitted she had spoken with Trump’s campaign attorney, Jenna Ellis.
THE COURT: Let me ask you this before you get to your other objections since we’re talking about — since I raised the issue about communications and correspondence with the Department of Justice. Have you had discussions with the President about this case?
MS. POWELL: I have not, Your Honor, while the case was pending pre-motion to dismiss or otherwise other than an update as to what happened in it.
THE COURT: I’m sorry. I’m not sure I understand your answer. The question is whether you’ve had any discussions at all with the President of the United States about Mr. Flynn and about this case. Yes or no.
MS. POWELL: I’m sorry, Your Honor. I can’t discuss that.
THE COURT: What’s the reason why you can’t discuss that?
MS. POWELL: I would think any conversations that I had with the President would be protected by executive privilege.
THE COURT: Well, you don’t work for the government.
MS. POWELL: I don’t think the executive privilege is limited to people who work for the government.
THE COURT: So you’re purporting to invoke executive privilege not to answer the Court’s question about whether you discussed Mr. Flynn’s case with the President of the United States. Is that correct?
MS. POWELL: Yes. Other than the fact that after the government moved to dismiss or at some point in the last month or so, I provided the White House an update on the overall status of the litigation.
THE COURT: How did you provide that update? Was it in writing?
MS. POWELL: No, sir.
THE COURT: How did you provide that update? Who did you speak with?
MS. POWELL: I provided it in person to counsel for the President.
THE COURT: I mean the White House counsel or a deputy or who did you speak to?
MS. POWELL: Your Honor, I spoke with Jenna [Ellis] and I spoke with the President himself to provide a brief update of the status of the litigation within the last couple of weeks.
THE COURT: And did you make any request of the President?
MS. POWELL: No, sir. Other than he not issue a pardon.
THE COURT: All right. Prior to that discussion with the President — how many discussions with the President have you had about this case?
MS. POWELL: That’s the only one I recall.
THE COURT: So you’re not ruling out other — well, certainly, you would recall a discussion with the President of the United States, wouldn’t you?
MS. POWELL: Well, I’ve had a number of discussions with the President of the United States. I think the New York Times reported I’ve had five. So it seems like they probably have a number better than I know.
THE COURT: Are the New York Times’ representations erroneous?
MS. POWELL: I couldn’t tell you the number of times I’ve actually spoken with the President, Your Honor.
THE COURT: All right. About this case. But there’s been more than one though.
MS. POWELL: No, sir. I can tell you I spoke with one time to the President about this case to inform him of the general status of the litigation.
THE COURT: And was that within the last two weeks?
MS. POWELL: Time has a way of getting by for me, but it’s certainly well after the government moved to dismiss and probably if I recall correctly after the writ of mandamus was entered.
THE COURT: All right. Did you ever ask the President of the United States to request his Attorney General to appoint more attorneys in this case?
MS. POWELL: Oh, heavens, no.
THE COURT: All right. So very succinctly just so I have a clear understanding, what precisely — during the first time you spoke with the President of the United States, what precisely did you ask him to do in connection with this case? What did you ask him to do in connection with this case?
MS. POWELL: I never discussed this case with the President until recently when I asked him not to issue a pardon and gave him the general update of the status of the litigation. [my emphasis]
On the same day Powell admitted to speaking, some weeks earlier, to Trump’s campaign attorney Jenna Ellis, Trump delivered a pre-arranged attack against Joe Biden in the first debate.
President Donald J. Trump: (01:02:22)
We’ve caught them all. We’ve got it all on tape. We’ve caught them all. And by the way, you gave the idea for the Logan Act against General Flynn. You better take a look at that, because we caught you in a sense, and President Obama was sitting in the office.
This false claim was based off misrepresentations based on altered Peter Strzok notes released as part of Bill Barr’s efforts to reverse the prosecution of Flynn. There were other altered documents released for wider dissemination in this period, as well, including additional Strzok and Page texts that newly violated the Privacy Act, though after DOJ had to confess that they had altered those documents, any further focus on the altered documents were dropped.
And then, Trump pardoned his Agent of Turkey along with the Thanksgiving bird.
At the moment Trump would have informed Sidney Powell of that news, she was at Lin Wood’s plantation plotting ways to steal the election Trump had lost. If Flynn was not already with Powell plotting away at the moment he learned of his pardon, he would join her within 24 hours.
Within weeks, the recently-pardoned retired General and foreign agent that had been plotting away with Sidney Powell and Patrick Byrne, someone who had been seduced by an admitted Russian agent, was calling for military intervention. Flynn’s calls for insurrection were reported in real time, but the news was buried and the fact that Trump had just pardoned the man calling for a coup did not make the coverage.
Roger Stone pardon
During the first half of December, Roger Stone was palling around with the accused terrorists who would help physically obstruct the vote certification on January 6.
Days later, one of the Oath Keepers that Stone palled around with, Kelly Meggs, bragged of arranging an alliance with other accused terrorists that Stone also palled around with, the Proud Boys that Trump had told to “Stand Back and Stand By” in that same debate on September 29 where Trump had used a campaign attack packaged up by Sidney Powell.
On December 23, Trump pardoned Stone for the crimes of which he was convicted (but not those that were still under investigation).
On Christmas, Meggs specifically tied protection, almost certainly of Stone, and coordination with a Proud Boy, almost certainly Enrique Tarrio, in the same text.
On December 26, Stone associate Kelly Meggs called this an insurrection (albeit in response to Trump’s order) explicitly.
On December 27, Stone went to Mar-a-Lago to thank Trump for the pardon directly and to discuss how he would “ensure that Donald Trump continues as our president.”
Stone wrote that he counseled the president on how he could “ensure that Donald Trump continues as our president.”
[snip]
Stone said via text that he deleted the words and images after he was notified the golf club has “a policy of prohibiting photos of club members or guests out of respect for their privacy.” He said he didn’t have any additional comment.
A photo posted and then removed from Roger Stone’s Parler social media page shows President Donald Trump, left, Kimberly Guilfoyle, an unidentified man and Roger Stone at the Trump International Golf Club in West Palm Beach on Sunday.
“I thanked President Trump in person tonight for pardoning me,” he wrote. “I also told the president exactly how he can appoint a special counsel with full subpoena power to ensure that those who are attempting to steal the 2020 election through voter fraud are charged and convicted and to ensure that Donald Trump continues as our president #StopTheSteal #rogerstonedidnothingwrong.”
The next day, Stone deleted the pictures of his face-to-face meeting with Trump.
On January 5 and 6, Stone continued to interact closely with the Oath Keepers (and some Proud Boys). The morning of the insurrection, one of the Oath Keepers since charged with sedition, Joshua James, checked in with the operational leader for the Oath Keepers that day every time that someone — almost certainly Stone — moved.
Two days after the insurrection, Kristin Davis tweeted out a picture of Stone signing his pardon paperwork. (h/t gal_suburban)
Stone never hid it: His pardon was directly tied to his efforts to keep Trump in power. Given that Stone’s pardon was not as expansive as Flynn’s, he remains at some legal exposure for prosecution for his later efforts (including his June 2017 efforts to shut down the investigation into Julian Assange), so he had a real incentive to do anything he could to keep Trump in power.
Steve Bannon
Three days after Trump lost the election, Steve Bannon — in planning for an illegal second Trump term — threatened to assassinate Chris Wray and Anthony Fauci. The same day, his very competent lawyer, Bill Burck (the guy who got him through a bunch of serial lies in the Mueller investigation), fired him as a client, even as he was facing fraud charges for cheating Trump’s rubes.
It wasn’t until December 11, well into the plotting for a coup, that Robert Costello — the very same lawyer who dangled a pardon to Michael Cohen over two years earlier — noticed his appearance. Costello’s representation of Bannon also meant that the same lawyer represented both Rudy and Bannon, two of the masterminds in the Willard War Room.
December 11, when Costello formally filed as Bannon’s lawyer, is around the same time, according to Dustin Stockton and Jennifer Lawrence, that Paul Gosar’s Chief of Staff tied a pardon for their own involvement in Bannon’s fraud to their efforts to overturn the election results.
In December 2020, as the tour rolled around the country, Stockton and Lawrence say they got a call from Rep. Paul Gosar (R-Ariz.) and his chief of staff, Thomas Van Flein. According to Stockton, Van Flein claimed he and the congressman had just met with Trump, who was considering giving them a “blanket pardon” to address the “We Build the Wall” investigation.
“We were just in the Oval Office speaking about pardons and your names came up,” Van Flein allegedly said. Van Flein did not respond to a request for comment.
Gosar suggested the bus tour was helping Stockton and Lawrence build support for a pardon from the caucus and Trump. “Keep up the good work,” Gosar said, according to Stockton. “Everybody’s seen what you’re doing.”
So it was probably assumed that, so long as Bannon kept helping Trump try to steal the election, he would would get a pardon. That was true even though Roger Stone made it clear after his trial that Bannon had testified in the grand jury against him.
But on the last day, among the very last pardons Trump granted, Trump pardoned Bannon not just for the crimes he had already been charged with, but any others that might arise from the Build the Wall project federally.
Rudy Giuliani left dangling
Almost three years after Rudy started helping Trump out of his legal troubles, in part by shamelessly dangling pardons to (at least) Cohen and Paul Manafort, Rudy got nothing. He got no pardon even though he was represented by Robert Costello, who had started the pardon dangles with him. He got no pardon even after working relentlessly — and exposing himself to further criminal exposure — trying to help Trump steal an election. Rudy got nothing, even though it was known that Barr had failed in his efforts to kill the Ukraine influence peddling investigation into Rudy.
While there had been abundant discussion of pardoning people who weren’t yet charged in early 2021, after Trump’s coup attempt, that plan was scotched.
It might not have happened in any case, given the conclusion Jay Sekulow had come to years earlier, the preemptive pardons make witnesses more likely to testify against Trump.
But because of the insurrection, Pat Cipollone got a lot more involved in pardons. And the insurrection made it virtually impossible to pardon the mastermind of the insurrection, Rudy Giuliani, even while making it all the more important to find a way to keep Rudy silent.
Ten days after (we now know) SDNY first obtained a warrant targeting Rudy Giuliani in the investigation used to justify seizing all his phones, Rudy boasted that he had “very, very good insurance.” Rudy certainly believed Trump would protect him.
But he didn’t.
That’s the angle through which Trump’s latest attempt to dangle pardons should be viewed. Rudy may be the most important person Trump needs to silence. But Trump had a chance to pardon Rudy when he had the authority, and he failed to do so.
Update: Added the SCOTUS decision to the list of things that must have Trump worried. h/t Brian Pillion
https://www.emptywheel.net/wp-content/uploads/2022/02/Stone-a-Guilfoyle.jpeg422415emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2022-02-03 09:51:172022-02-03 15:00:23Trump’s Coup Attempts: A Tale of Five Pardon Dangles
In a truly hysterical self-own, the Federalist’s Margot Cleveland read this John Durham filing and (in addition to claiming that Marc Elias’ grand jury appearance must mean he testified to crime-fraud excepted matters even though he previously testified publicly about this matter without any such exception) predicted that the “corrupt media” would soon quote “false charges” of threats and intimidation “by this weekend.”
Then she quoted precisely those charges.
In addition to detailing all of the information the special counsel’s office had already provided Sussmann or would shortly, in requesting an extension to finish discovery, Durham’s team stressed the breadth of Sussmann’s discovery demands and the transparency with which those demands were met.
For instance, Sussmann’s attorneys requested “all of the prosecution team’s communications with counsel for witnesses or subjects in this investigation, including, ‘any records reflecting any consideration, concern, or threats from your office relating to those individuals’ or their counsels’ conduct…and all formal or informal complaints received by you or others’ about the conduct of the Special Counsel’s office.”
After noting that “communications with other counsel are rarely discoverable,” the government said it expects to produce responsive documents later this week. But the special counsel office added, “it is doing so despite the fact that certain counsel persistently have targeted prosecutors and investigators on the Special Counsel’s team with baseless and polemical attacks that unfairly malign and mischaracterize the conduct of this investigation.”
For instance, “certain counsel have falsely accused the Special Counsel’s Office of leaking information to the media and have mischaracterized efforts to warn witnesses of the consequences of false testimony or false statements as ‘threats’ or ‘intimidation,’” Durham explained to the court.
In other words, with Sussmann’s lawyers soon to receive this cache of complaints against Durham’s team, watch for the corrupt media to be quoting those false charges by this weekend, spinning a narrative of a corrupt special counsel’s office.
Cleveland was, as far as I saw, the first to quote those charges and one of the only ones to do so before the weekend. But given that, in the past, she has presented evidence that undermined Durham’s conspiracy theories without admitting that they did, I’d say she qualifies for her own designation as corrupt. A self-fulfilling prediction!
That said, I suspect that Durham is trying to get ahead of something potentially more problematic.
In the Sussmann indictment, Durham needlessly referred to April Lorenzen — who had used the pseudonym “Tea Leaves” to speak of the Alfa Bank allegations in 2016 and who could have been referred to by that same pseudonym here — by the moniker “Originator-1.” That introduced additional confusion and with it implied, without charging Lorenzen, that she had made up the anomalous data at the core of the allegation. It’s sort of like referring to someone by the pseudonym “Forger-1” or “Lady-with-the-Knife-1” in an indictment; it respects DOJ’s rules against naming uncharged individuals, but does so in such a way that insinuates wrong-doing.
Indeed, in the indictment, Durham repeatedly called the anomalous data “purported,” barely hiding that he believes Lorenzen manufactured the data, even though a shit-ton of evidence from later in 2016 makes it clear Lorenzen believed the anomaly was real and important.
Durham’s treatment of Lorenzen is all the more problematic given that she was among those that, this NYT story credibly argued, Durham had cited out of context in the indictment.
The indictment quotes August emails from Ms. Lorenzen and Mr. Antonakakis worrying that they might not know if someone had faked the DNS data. But people familiar with the matter said the indictment omitted later discussion of reasons to doubt any attempt to spoof the overall pattern could go undetected.
[snip]
The indictment suggested Ms. Lorenzen’s reaction to the paper was guarded, describing an email from her as “stating, in part, that it was ‘plausible’ in the ‘narrow scope’ defined by” Mr. Joffe. But the text of her email displays enthusiasm.
“In the narrow scope of what you have defined above, I agree wholeheartedly that it is plausible,” she wrote, adding: “If the white paper intends to say that there are communications between at least Alfa and Trump, which are being intentionally hidden by Alfa and Trump I absolutely believe that is the case,” her email said.
So Lorenzen has good cause to be miffed with Durham’s insinuations in the indictment.
Which brings us to the passage that Cleveland face-planted on.
Durham brags that he has been so kind as to respond to Sussmann’s request for records suggesting that Durham’s team might be bullying or bribing witnesses.
On December 10, 2021, the defense requested, among other things, all of the prosecution team’s communications with counsel for witnesses or subjects in this investigation, including, “any records reflecting any consideration, concern, or threats from your office relating to those individuals’ or their counsels’ conduct. . . and all formal or informal complaints received by you or others” about the conduct of the Special Counsel’s Office.” Although communications with other counsel are rarely discoverable, especially this far in advance of trial, the Government expects to produce certain materials responsive to this request later this week. The Government notes that it is doing so despite the fact that certain counsel persistently have targeted prosecutors and investigators on the Special Counsel’s team with baseless and polemical attacks that unfairly malign and mischaracterize the conduct of this investigation. For example, certain counsel have falsely accused the Special Counsel’s Office of leaking information to the media and have mischaracterized efforts to warn witnesses of the consequences of false testimony or false statements as “threats” or “intimidation.” Despite the inflammatory and unfounded nature of these accusations, the Special Counsel’s Office intends to produce these materials to the defense to avoid any suggestion that it seeks to conceal these communications for some bad purpose.
Sussmann made this request after having been shown — months after he was indicted — James Baker’s interview reports with Durham’s team, which Sussmann’s lawyers noted at a December 8 status hearing had radically changed from his past sworn statements. Sussmann’s lawyers made it clear they may argue at trial that Baker’s testimony changed because Durham threatened to charge the former FBI lawyer if he didn’t change his story. And that’s clearly why, just days after seeing how dramatically Baker’s sworn testimony did change, Sussmann made this discovery request. Sussmann wants to test whether Durham has been pressuring witnesses — Baker, as well as others — to back Durham’s baseless conspiracy theories.
Durham is turning over this material not, as he suggests, out of the spirit of generosity. Rather, he’s turning it over because, to survive as Special Counsel long enough to write his report, he needs to avoid giving Merrick Garland cause to fire him. Sussmann has effectively put Durham on notice that he’s going to ask every witness whether they were bullied to tell a false story. And if Durham were to sit on records even hinting at such bullying, withholding them in discovery when the complaint is bound to come out at trial would provide Garland that cause for firing.
Which makes it all the more interesting that Durham stated he had included reports of calls with Lorenzen’s lawyer specifically.
numerous reports of phone calls between the Special Counsel team and counsel for several witnesses or subjects in this investigation, including counsel for the individual referred to in the Indictment as “Originator-1;”
Complaints from Lorenzen would be neither Jencks — the requirement to provide the interview reports and grand jury testimony from witnesses the prosecution plans to call at trial — nor Giglio — the requirement to tell defendants about any benefits witnesses received for their testimony. That’s because Durham is treating Lorenzen as a subject of the investigation, not a witness. Like all Fusion employees, Rodney Joffe, and all but one employee of the Clinton Campaign, she is not listed as having been interviewed. That suggests either that Durham still wants to charge Lorenzen as part of his conspiracy charge or that he tried to subpoena her and she told him she’d invoke the Fifth. (According to an earlier Sussmann filing, Durham has immunized at least one witness and he could do so with Lorenzen as well if he really wanted her testimony.)
Of course Lorenzen has a complaint. While I don’t think Durham leaked her identity (he doesn’t need to because there’s a whole slew of researchers, including suspected Russian agents, who guarantee anything he says will soon be attached to a name), he improperly included insinuations about Lorenzen not backed by any evidence as part of his grand conspiracy theory about why Sussmann lied. He has done real reputational damage to Lorenzen without presenting any evidence to back such damage.
Durham provided Sussmann whatever complaints she made about the reputational harm he had done to cover his ass — to ensure it doesn’t get him fired — because Sussmann has the ability to obtain (and may have already obtained) such records from Lorenzen directly.
For now, then, Durham has protected himself.
But if it were to come out, as I think is likely, that DOJ has in its possession information about someone who claimed to have brokered one of the more incendiary parts of the Alfa Bank story, someone who fabricated other Internet routing data in May 2016 (the month that, Alfa Bank claims, its own data started getting spoofed), it might make any bullying Durham has done of Lorenzen the kind of thing that would be actionable against Durham. All the more so if Durham had not provided such information in discovery to Sussmann (which would be shocking, but I’m getting used to being shocked by Durham’s incompetence).
Durham has covered his ass, for now. But if it came out that Durham insinuated Lorenzen had fabricated this data even though DOJ knows of a more likely candidate to have done so, that would cause all sorts of new problems for him.
https://www.emptywheel.net/wp-content/uploads/2021/10/John_H._Durham_magazine-1500pxw.jpg9971494emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2022-01-31 06:52:592022-02-01 10:33:02John Durham Suggests April Lorenzen Thinks He Bullied Her
