Mueller Probe Archives - Page 24 of 152

John Durham Flew to Italy to Get Joseph Mifsud’s Blackberries But Never Walked Across DOJ to Obtain James Baker’s Phones He Forgot He Knew Were There

Back in 2019, when John Durham undercut DOJ Inspector General Michael Horowitz’s conclusion that, for all the problems in the Carter Page FISA, the investigation itself was properly predicated and there was no evidence that the investigation into Trump’s associates had been politicized, Durham pointed to what he claimed was the broader scope of his own investigation that gave him reason to believe the predication was not clearcut.

I have the utmost respect for the mission of the Office of Inspector General and the comprehensive work that went into the report prepared by Mr. Horowitz and his staff. However, our investigation is not limited to developing information from within component parts of the Justice Department. Our investigation has included developing information from other persons and entities, both in the U.S. and outside of the U.S. Based on the evidence collected to date, and while our investigation is ongoing, last month we advised the Inspector General that we do not agree with some of the report’s conclusions as to predication and how the FBI case was opened.

Durham pointed both to his review of other agencies — such as the CIA review he has now completed without results — and the boondoggles he took with Billy Barr overseas as the basis (he claimed) to know more than Michael Horowitz.

Durham’s statement came shortly after he obtained two Blackberries — one dating to 2011 and the other to 2014 — that once belonged to Joseph Mifsud. By all reports, the George Papadopoulos conspiracy theories that Barr and Durham were chasing on the trip to Italy where they got those phones amounted to nothing. Taxpayers paid for Durham to fly overseas to collect information that predates the Russian operation by years, all because a sworn liar invented excuses for his crime after the fact.

It’s not that Horowitz ignored the Coffee Boy’s conspiracy theories. Rather than taking a junket to Italy to rule out Papadopoulos’ fevered speculation, Horowitz just looked in the FBI’s informant database and called the CIA.

164 During October 25, 2018 testimony before the House Judiciary and House Committee on Government Reform and Oversight, Papadopoulos stated that the source of the information he shared with the FFG official was a professor from London, Joseph Mifsud. Papadopoulos testified that Mifsud provided him with information about the Russians possessing “dirt” on Hilary Clinton. Papadopoulos raised the possibility during his Congressional testimony that Mifsud might have been “working with the FBI and this was some sort of operation” to entrap Papadopoulos. As discussed in Chapter Ten of this report, the OIG searched the FBI’s database of Confidential Human Sources (CHS), and did not find any records indicating that Mifsud was an FBI CHS, or that Mifsud’s discussions with Papadopoulos were part of any FBI operation. In Chapter Ten, we also note that the FBI requested information on Mifsud from another U.S. government agency, and received a response from the agency indicating that Mifsud had no relationship with the agency and the agency had no derogatory information on Mifsud.

[snip]

484 Papadopoulos has stated that the source of the information he shared with the FFG was a professor from London, Joseph Mifsud, and has raised the possibility that Mifsud may have been working with the FBI. As described in Chapter Ten of this report, the OIG searched the FBI’s database of Confidential Human Sources (CHSs) and did not find any records indicating that Mifsud was an FBI CHS, or that Mifsud’s discussions with Papadopoulos were part of any FBI operation. The FBI also requested information on Mifsud from another U.S. government agency and received no information indicating that Mifsud had a relationship with that agency or that the agency had any derogatory information concerning Mifsud.

This comparison is one reason it is so damning that Durham just admitted that he never sought to obtain (and falsely claims he never knew about) two phones formerly used by James Baker that were in the custody of DOJ IG all that time.

[I]n early January 2022, the Special Counsel’s Office learned for the first time that the OIG currently possesses two FBI cellphones of the former FBI General Counsel to whom the defendant made his alleged false statement, along with forensic reports analyzing those cellphones. Since learning of the OIG’s possession of these cellphones, the Government has been working diligently to review their contents for discoverable materials. The Government expects to make those materials available to the defense later this week.

The John Durham investigation made a big effort to obtain two dated phones based on a conspiracy theory, but didn’t even seek to obtain phones he should have known were in DOJ possession before indicting someone based off the single witness testimony of that person. Crazier still, in an update to the Court, Durham admitted that he learned but then forgot that Horowitz had obtained one of them during his prior investigation of Baker for a suspected leak.

This is not the only damning admission of investigative negligence in John Durham’s request for an extension of the deadline — which turns out to be a request for the deadline he originally requested — for what he calls discovery (but what is actually basic investigative steps he should have taken long before indicting Sussmann).

For example, in his indictment of Michael Sussmann, Durham gives the impression that Rodney Joffe only obtained data from the US in 2016 to hunt down damning data about Donald Trump. But in response to a Sussmann request, Durham conducted a review of all the 17,000 unclassified emails involving the email domain from one of Joffe’s companies, finding 226 from 2016 alone that pertain to this issue. As Sussmann has argued, lying to hide Joffe’s involvement in this would be counterproductive given how closely he works with FBI.

[T]o the extent the Indictment alleges that the FBI General Counsel and FBI might have done various things like ask “further questions,” taken additional or more incremental steps,” “allocated its resources differently or more efficiently,” or “uncovered more complete information” but for Mr. Sussmann’s purported false statement, the Special Counsel should be required to particularlize those potential questions, additional steps, resource allocations, or more complete information. Id. This is particularly necessary because [Joffe] — far from being a stranger to the FBI — was someone with whom the FBI had a long-standing professional relationship of trust and who was one of the world’s leading experts regarding the kinds of information that Mr. Sussmann provided to the FBI. The notion that the FBI would have been more skeptical of the information had it known of Tech Executive-1’s involvement is, in a word, preposterous.

Similarly, the indictment makes much of the fact that Sussmann shared information with the NYT that ultimately led to an infamous October 31 story. It suggests without evidence that Sussmann — or even the Congressional sources who obviously played a role in the story — were the only ones pushing the Alfa Bank story to the NYT. It further suggests, falsely, that all the material NYT obtained on Alfa Bank came from Joffe’s effort. Crazier still, until Sussmann asked, Durham hadn’t pulled the details from a meeting the FBI (one that included James Baker and Bill Priestap, almost certain to be witnesses at Sussmann’s trial) had with the NYT.

On September 27, November 22, and November 30, 2021, the defense requested, in substance, “any and all documents including the FBI’s communications with The New York Times regarding any of [the Russian Bank-1] allegations in the fall of 2016.” In a subsequent January 10, 2022 letter, the defense also asked for information relating to a meeting attended by reporters from the New York Times, the then-FBI General Counsel, the then-FBI Assistant Director for Counterintelligence, and the then-FBI Assistant Director for Public Affairs. In response to these requests, the Special Counsel’s Office, among other things, (i) applied a series of search terms to its existing holdings and (ii) gathered all of the emails of the aforementioned Assistant Director for Public Affairs for a two-month time period, yielding a total of approximately 8,900 potentially responsive documents. The Special Team then reviewed each of those emails for relevant materials and produced approximately 37 potentially relevant results to the defense.

Pulling these records would have been just the first step Durham should have taken to figure out what other entities might have been pushing this story to the NYT and what specific allegations those entities were pushing to test some of the insinuations Durham makes in the indictment. Yet Durham never thought to look for these records before he indicted Sussmann.

Still, Durham’s failure to do anything to understand what DOJ IG had done in its parallel investigation is the most remarkable.

Before Durham was formally appointed, Billy Barr’s top aide Seth DuCharme seemed to be attempting to deconflict the investigation by bringing the two men together to talk about scope.

Perhaps Durham’s public rebuke of Horowitz undermined any cooperation since then (though Durham was certainly happy to take the Kevin Clinesmith case that Horowitz had wrapped up in a bow and claim it as his only visible sign of life for years).

But according to Durham’s filing, he didn’t reach out to Horowitz’s office until three weeks after indicting Sussmann (and perhaps more importantly, less than four weeks before indicting Igor Danchenko, in whose prosecution the DOJ IG investigation plays a central role). Durham presents his team reaching out to another unit at DOJ that he knew to have relevant material as some great feat of diligence rather than something he should have done years earlier.

On October 7, 2021, at the initiative of the Special Counsel’s Office, the prosecution team met with the DOJ Inspector General and other OIG personnel to discuss discoverable materials that may be in the OIG’s possession. The Special Counsel’s office subsequently submitted a formal written discovery request to the OIG on October 13, 2021, which requested, among other things, all documents, records, and information in the OIG’s possession regarding the defendant and/or the Russian Bank-1 allegations. The Special Counsel also requested any transcripts or other documents within the OIG’s possession containing certain search terms. In response, the OIG provided, and the Government has produced to the defense in redacted form, relevant transcripts of interviews conducted by the OIG during its review of the FBI’s Crossfire Hurricane investigation.

That’s what led Durham to discover, for the first time, the anonymous tip of the same sort — weird forensic data discovered by Joffe — that Sussmann shared with DOJ IG in the same time period Durham was investigating.

It wasn’t until Durham asked the FBI Inspection Division for call data associated with Baker’s phone this month that they told him — because Durham had apparently never asked, not even given the endless focus on Peter Strzok and Lisa Page texts Horowitz obtained way back in 2017 — that DOJ IG had two phones that Baker had used. After Durham publicly claimed not to have known about the phones, DOJ IG then informed him that he learned DOJ IG obtained one of them in 2018 during a different investigation of Baker.

Durham’s belated outreach to DOJ IG may in fact be what first led Durham to discover the interview DOJ IG did with Baker on July 15, 2019 — shortly after deconfliction meetings in advance of Durham’s appointment — in which Baker said something that materially conflicts with the statements Baker has made to Durham, statements that in fact confirm Sussmann’s story.

Durham also obtained a transcript — the only one he provided to Sussmann in unredacted form — about some other investigation that Horowitz is currently conducting.

the transcript of an interview conducted by the DOJ Office of Inspector General in connection with an administrative inquiry that is currently ongoing;

And now, part of the reason Durham is asking for a delay in his existing deadline is that requests of Horowitz he should have made at the beginning of any investigation into whether Sussmann falsely set up Trump are proving too onerous for DOJ IG (which is working on a slew of reports on events that aren’t five years past) to do on their own.

Third, in January 2022, the OIG informed the Special Counsel’s Office for the first time that it would be extremely burdensome, if not impossible, for the OIG to apply the search terms contained in the prosecution team’s October 13, 2021 discovery request to certain of the OIG’s holdings – namely, emails and other documents collected as part of the OIG’s investigation. The OIG therefore requested that the Special Counsel’s Office assist in searching these materials. The Government is attempting to resolve this technical issue as quickly as possible and will keep the defense (and the Court as appropriate) updated regarding its status.

At this point, four months after indicting Michael Sussmann and two years after claiming he knew better than Michael Horowitz, Durham doesn’t know whether he even consulted the same records that Horowitz did.

As noted, if the same is true with respect to the Danchenko case, it is potentially lethal to Durham’s case, because his investigative theory (which is that Danchenko is responsible for FBI’s failure to act on problems with the dossier) is fundamentally incompatible with Horowitz’s (which is that it was FBI’s fault for not acting).

Durham does know, however, that he didn’t consult something that Horowitz did: Baker’s actual phones.

And that may have a real impact at trial.

At a status conference, Durham’s prosecutors dismissed the possibility that they had bullied Baker into telling the story they wanted him to tell on threat of prosecution: that Sussmann affirmatively lied about having a client, which conflicts with several other claims he had previously made under oath. They said (in a scheduling motion), instead, that once Durham’s prosecutors refreshed Baker’s memory with notes from Bill Priestap and someone else he spoke with after the Sussmann meeting, Baker remembered that Sussmann had actually affirmatively lied.

Mr. Baker made these statements before he had the opportunity to refresh his recollection with contemporaneous or near-contemporaneous notes that have been provided to the defense in discovery. Indeed, the defendant’s motion entirely ignores law enforcement reports of Mr. Baker’s subsequent three interviews with the Special Counsel’s Office in which he affirmed and then re-affirmed his now-clear recollection of the defendant’s false statement.

Effectively, they claimed they had better information when questioning Baker than anyone previously had.

Durham is going to have to present that to the jury, probably through the testimony of one of the FBI agents involved.

But that claim only works if Durham’s team had a more complete record than Horowitz’s team did when they asked the same questions. Durham doesn’t know whether that’s true or not yet, because he never bothered to figure out what Horowitz had. The delay Durham wants to do investigative work he should have done years ago is a delay, in part, to see whether that claim has any basis in fact. (And at least in December, Durham had only provided a heavily redacted transcript of what went on between Baker and the IG.)

All parties know one thing, however: That when Horowitz conducted questioning of Baker in 2019 about this topic, unlike Durham, he had consulted with Baker’s own phone. Durham can no longer claim to have been more thorough than Horowitz, because he just admitted he didn’t even bother consulting Baker’s phones and is only now getting around to checking what else Horowitz might have consulted that he did not.

John Durham indicted Michael Sussmann on the last possible day he could have under the statutes of limitation. And now, he’s asking for a delay in discovery deadlines (if not a delay in Sussmann’s trial), so he can do basic investigative work he should have done before the statutes of limitation tolled.

Update: Judge Cooper has granted Durham’s extension.

Update: Holy shit it gets better! Durham just had to admit that, in an earlier investigation of Baker, he learned DOJ IG had obtained this phone.

After reviewing the Special Counsel’s Office’s public filing, the DOJ Office of Inspector General (“OIG”) brought to our attention based on a review of its own records that, approximately four years ago, on February 9, 2018, in connection with another criminal investigation being led by then-Acting U.S. Attorney Durham, an OIG Special Agent who was providing some support to that investigation informed an Assistant United [sic] Attorney working with Mr. Durham that the OIG had requested custody of a number of FBI cellphones. OIG records reflect that among the phones requested was one of the two aforementioned cellphones of the then-FBI General Counsel. OIG records further reflect that on February 12, 2018, the OIG Special Agent had a conference call with members of the investigative team, including Mr. Durham, during which the cellphones likely were discussed. OIG records also reflect that the OIG subsequently obtained the then-FBI General Counsel’s cellphone on or about February 15, 2018. Special Counsel Durham has no current recollection of that conference call, nor does Special Counsel Durham currently recall knowing about the OIG’s possession of the former FBI General Counsel’s cellphones before January 2022.

This post has been updated to reflect how Durham learned he already knew of the phones.

Timeline of Sussmann discovery

September 16, 2021: Michael Sussmann indictment

September 27: Sussmann asks for:

All evidence from wiretaps or eavesdropping (there appears to be none)
All communications regarding Sussmann’s security clearance reviews (900 pages)
Any documents pertaining to FBI treatment of anonymous tips (with repeated follow-ups)
All FBI communications with the NYT regarding Alfa Bank allegations in 2016 (with repeated follow-ups)
Materials regarding relationship between Joffe’s companies and government agencies; FBI results for 2016 result in 226 emails

October 7: Durham team meets with DOJ IG to discuss discoverable material in DOJ IG possession

October 13: Durham issues a formal discovery request to DOJ IG

October 13: Sussmann asks for Priestap’s notes

October 20: Sussmann reviews Priestap’s notes

October 25: Sussmann reply memo reveals he still hasn’t received taxi billing records and other identifiable Brady material, including an “unclassified grand jury testimony of an immunized witness, that either exculpate[s] Mr. Sussmann or conflict[s] with the core allegations that the Special Counsel has made against him”

October 29: Sussmann’s team obtains clearance

November 3: Igor Danchenko indictment

Week of November 15: Durham turns over some, but not all, of Baker’s statements, including conflicting DOJ IG fragment

November 22: Sussmann follow-up on request for FBI communications with NYT; after previously accepting June trial date, Durham proposes July 25

November 30: Sussmann follow-up on request for FBI communications with NYT; says Durham is missing some of the CIA employees in February 9, 2017 meeting

December 6: Sussmann moves for trial date, describing that Durham needs four more months for discovery

December 7: Durham response; Sussmann first gets Baker grand jury transcripts; just three grand jury transcripts provided by that point

December 8: Status conference at which Sussmann attorney reveals they’ve just seen Baker grand jury transcript

December 10: Sussmann asks for records “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”

December 14: Scheduling order

December 17: DOJ IG gives Durham forensic report arising from previous Sussmann tip

December 23: Durham gives Sussmann forensic report from DOJ IG tip

Early January 2022: OIG says it can’t get through the discovery on Crossfire Hurricane investigation by itself

January 5: Durham asks FBI Inspection Division about call log data for Baker’s phone

January 6: FBI Inspection Division tells Durham that DOJ IG has Baker’s phones

January 7: Durham asks DOJ IG about the phones

January 10: DOJ IG provides the information on Baker’s phones; Sussmann asks for information regarding meeting with NYT, James Baker, Bill Priestap, and Michael Kortan (result did not come up on searches, so Durham had to search through 8,900 pages of Kortan’s records, resulting in 37 results)

January 20: Durham asks to have until “the end of March” for discovery (effectively, his originally requested deadline); Sussmann tells Durham he met with DOJ IG in person in March 2017 about anonymous tip

January 21: Sussmann response agreeing to February 11; DOJ IG confirms they did meet with Sussmann

January 25: Durham submits filing claiming he never knew DOJ IG had Baker’s phones (in response DOJ IG reminds Durham he already knew of one of the phones)

January 26: DOJ IG provides second forensic reports on the phones to Durham

January 28: Unclassified discovery originally due; Cooper grants extension to March 18 in the morning; Durham provides initial forensic reports to Sussmann and then (at 11:52PM) informs court he had previously been informed of Baker’s phone years ago

February 11: Classified discovery due

February 18: Motion to Dismiss due

March 18: 404(b) and remaining Jencks and Giglio due

March 25: Durham’s initial and second requested discovery deadline

May 16: Existing trial date

John Durham Had No Idea Michael Sussmann Provided Another Anonymous Tip on Behalf of Rodney Joffe

January 25, 2022/42 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

John Durham’s team has submitted a filing asking for an extension on its discovery deadlines in the Michael Sussmann case.

It’s interesting as a relief map of the conspiracy theory-oops-I-mean-charge that Durham is still pursuing in this case, made visible by the witnesses implicated whom Durham has yet to interview and by his repeated explanation that this is an ongoing investigation.

It’s also interesting because I can see clear gaps, gaps he may be trying to cover up by boasting of everything he has turned over. I’ll probably return to the gaps after his deadlines have passed.

Perhaps the most interesting disclosure is that Durham had no fucking clue that Sussmann provided a different anonymous tip to DOJ on behalf of Rodney Joffe, one of similar substance to this one. Sussmann alerted DOJ’s Inspector General that one of its employees was connecting to a foreign VPN, the same kind of meticulous forensic detail that Sussmann reported to the FBI regarding Alfa Bank.

On December 17, 2021, the OIG also provided to the prosecution team a written forensic report concerning a particular cyber-related matter that the defendant brought to the OIG’s attention in early 2017 on behalf of an anonymous client. In particular, the report reflects that in early 2017, the defendant reported to an OIG Special Agent in Charge that one of the defendant’s clients had observed that a specific OIG employee’s computer was “seen publicly” in “Internet traffic” and was connecting to a Virtual Private Network in a foreign country. At the time the OIG provided this forensic report to the Special Counsel in December 2021, the OIG represented to the prosecution team that it had “no other file[] or other documentation” relating to this cyber matter. The Government provided the report to the defense on December 23, 2021. Subsequent to this disclosure to the defense, the Special Counsel team has become aware of additional potentially discoverable materials in the OIG’s possession:

i. First, in a discovery call with the prosecution team on January 20, 2021 [sic], defense counsel informed the Government that the defendant met personally with the DOJ Inspector General in March 2017 when conveying the aforementioned cyber issue to the OIG. The defense further stated that the defendant’s client in that matter was Tech Executive-1, the same individual on whose behalf the Indictment alleges the defendant also met with the FBI in September 2016. Upon learning this information, the prosecution team promptly made further inquiries of the OIG. On the next day, January 21, 2021 [sic], the OIG informed the Special Counsel for the first time that the defendant in fact met in March 2017 with the Inspector General and his then-General Counsel concerning the above-described cyber matter. The OIG had not previously informed the Special Counsel’s Office of this meeting with the defendant. Over the past few days, including over this last weekend, the OIG has been gathering and providing further documentation and information relating to that meeting to the Special Counsel’s Office. Given the meeting’s potential relevance to the charges at hand, the Special Counsel’s Office will work expeditiously with the OIG to conduct interviews and to collect and disclose any further discoverable materials to the defense.

This is just one of three things that Durham’s team admits they’ve learned “for the first time” from Michael Horowitz’s office. But that — and other details in this filing — make it clear they’ve been blithely going along with their investigation without checking on the work that Horowitz did, to which this prosecution was supposed to be derivative. If the same is true of the Igor Danchenko case, Durham will have even bigger problems to deal with.

But this disclosure is far more damning than Durham lets on. That’s because he had already searched for everything he thought was discoverable. He had looked everywhere for discussions of Michael Sussmann within DOJ and FBI.

And he still had no idea, until four months after he indicted Sussmann for sharing a tip from Rodney Joffe about weird forensic data, that Sussmann had shared another tip about weird forensic data from Rodney Joffe during the same period under investigation.

Oh, by the way, Sussmann is also squeezing Durham for all the evidence that when FBI obtains anonymous tips it doesn’t track things like which Democratic lawyer reports them. <<wink>>

Durham has been so far down his little conspiracy rabbit hole he hasn’t looked around to understand what the norm is for Sussmann and Joffe.

Particularly given how the clock is ticking on his efforts to charge a larger conspiracy, without which this case is far weaker, it doesn’t bode well for Durham’s chances.

Update: I should add two things. First, Durham’s request to extend discovery until March would put that after Sussmann’s deadline for motions to dismiss, which is currently February 18. I have a sense that Sussmann wants this stuff before he writes that.

In addition, something else that Durham only discovered months after he indicted this case is that DOJ IG was sitting on two phones from James Baker, the sole witness to Sussmann’s alleged lie.

Second, in early January 2022, the Special Counsel’s Office learned for the first time that the OIG currently possesses two FBI cellphones of the former FBI General Counsel to whom the defendant made his alleged false statement, along with forensic reports analyzing those cellphones. Since learning of the OIG’s possession of these cellphones, the Government has been working diligently to review their contents for discoverable materials. The Government expects to make those materials available to the defense later this week.

It’s never a good sign to discover devices from the single witness four months after you’ve indicted the case.

Five Percent of Mueller Pre-Grand Jury Interviews Pertain to Still Ongoing Investigations

January 21, 2022/18 Comments/in 2016 Presidential Election, emptywheel, Mueller Probe /by emptywheel

The other day, I asked Jason Leopold where the Mueller FOIA release was this month. DOJ remains under obligation to hand over hundreds of pages a month in response to his FOIA, and they usually hand it over in the first days of the month.

He shared this month’s release, which makes it clear DOJ did something pretty dickish to him. DOJ turned over notice it was withholding 696 consecutive pages of materials, all of which invoke the b73 exemption for grand jury materials. Effectively, DOJ just dumped a bunch of interviews conducted before grand jury testimony, all of which DOJ has been withholding under that grand jury exemption, to fulfill their monthly obligation.

And because these are consecutive pages, we can’t glean information from them in the same way we can pages (such as those pertaining to Steve Bannon’s January 2019 Grand Jury appearance) turned over as part of other releases.

But there is, however, one detail that we can learn from this. Of the 696 grand jury related pages DOJ withheld, 40 of them also invoke the b7A exemption for an ongoing investigation.

That means that, in addition to the grand jury exemption, more than 5% of the pages were also withheld for ongoing investigations. We have no idea if these interviews are representative of the total. We also can’t see how many individual interviews these records include. But of this batch, it’s over 5%.

To be sure, given what we’ve seen of late, I don’t think that means we’re going to see indictments based on the Trump cases. While individual pages of the Stone, Bannon, and Flynn materials released in the last year reflect ongoing investigations, a whole lot of Sam Patten’s materials do (or at least did, last summer).

Patten, you’ll recall, was sort of a mirror image for Konstantin Kilimnik to Paul Manafort, another American political consultant that he used to access US networks. Patten was referred to Mueller by the Senate Intelligence Committee because he lied in his interview with the Committee. After that he entered into a cooperation agreement where he shared a whole bunch of what he had learned about how Russia interferes in Ukrainian politics (and through that, in US politics).

That is, my guess is that a bunch of these ongoing investigations pertain to stuff like counterintelligence investigations leading to the Treasury sanctions imposed yesterday, including one person who had worked with Kilimnik to interfere in the 2020 US elections.

Whatever it is, though, the only value of DOJ pulling this dickish move is to give a sense of how much of this material remains ongoing.

Vladislav Klyushin Traveled Freely in Europe, Until He Didn’t Travel in Europe Freely

January 3, 2022/45 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

Bloomberg has a fascinating update on the case of Vladislav Klyushin, the guy who ran a pen-testing company for Vladimir Putin extradited to Boston on charges of insider trading last month. It states that Klyushin has (present tense) access to documents on the 2016 Russian hack and suggests he might be leveraged to share this information to get out of the lengthy insider trading sentence he faces.

According to people in Moscow who are close to the Kremlin and security services, Russian intelligence has concluded that Klyushin, 41, has access to documents relating to a Russian campaign to hack Democratic Party servers during the 2016 U.S. election. These documents, they say, establish the hacking was led by a team in Russia’s GRU military intelligence that U.S. cybersecurity companies have dubbed “Fancy Bear” or APT28. Such a cache would provide the U.S. for the first time with detailed documentary evidence of the alleged Russian efforts to influence the election, according to these people.

There’s a problem with this claim, though, at least as stated. The US already has documentary proof that GRU was behind the hack-and-leak. These documents would not be the first. And given the evidence cited in the indictment against Klyushin and Ivan Yermakov, the hacker cited in both this case and two GRU hack-and-leak cases, they collected more information from Yermakov over the last several years.

So such documents must go beyond mere confirmation of GRU’s role, if reports of Kremlin concerns are true.

Some insight about what the US might be after comes elsewhere in the story. It describes that on two earlier occasions, Western intelligence tried to recruit Klyushin.

U.S. and British intelligence tried twice to recruit Klyushin, according to Ciric, the attorney in Switzerland. U.S. intelligence attempted to engage him in summer 2019 in the south of France and British intelligence approached him in March 2020 in Edinburgh, Ciric said.

Klyushin memorialized that second meeting in a note he wrote a few weeks after the encounter and saved on his computer, according to Ciric. It took place at Edinburgh’s airport, as Klyushin was taking a flight back to Russia, according to the memo, which was submitted to the Swiss courts as part of his appeal against extradition. Klyushin wrote that the two British intelligence agents — one from MI5 and the other from MI6 — spoke to him for a few minutes in a room where he was led after a passport check.

The two Russian-speaking officers, a man and a woman, asked him if he would “cooperate” with U.K. secret services and took his phone number to set up a meeting on his next trip to London planned for May, according to the previously unreported document, which was reviewed by Bloomberg. Klyushin wrote that while he didn’t respond to the cooperation offer, he said he would be willing to see the agents again to discuss selling M-13 products to British intelligence.

It’s unclear whether Klyushin informed Russian intelligence about the U.S. and British recruitment efforts.

On top of the detail that US and British intelligence had targeted Klyushin for recruitment (and believed they had some reason to convince him to do so by summer 2019), this reveals that Klyushin has been traveling without arrest in recent years, both after the time in January 2020 that the indictment parallel constructs the investigation start date to, and well after the May 9, 2018 date when the US seems to have pinpointed Yermakov’s phone. It’s a point Klyushin himself made.

While in the Swiss prison, Klyushin told Bloomberg, through his lawyer, that he didn’t know why he was arrested in March and not before, saying that he had previously traveled freely to Europe. He blamed his detention on an “operation mounted by the U.S. in cooperation with Swiss authorities” to obtain “certain confidential information the American authorities consider” he has.

That is, it’s possible that the US waited to arrest him until they were done with their investigation, but these past interactions with western spooks suggest something else was behind the timing of his arrest. Similarly, the explanation offered by the Swiss lawyer — that the US only learned of Klyushin’s trip to Switzerland by an auspiciously timed hack of his phone — makes no sense, given the access to travel records the US would routinely have even without having someone targeted under Section 702, as Klyushin easily could have been.

The story leaves big questions about whether Klyushin wanted to be turned over or not. In addition to the open question about whether Klyushin told Russian authorities about the recruitment attempts, Bloomberg describes that Klyushin’s Swiss lawyer mailed his appeal of the extradition to the European Court of Human Rights rather than faxing it, with the result that the appeal arrived only after he had already been transferred to US custody.

But it’s hard to believe that Klyushin wanted to be extradited when he was arrested last March. That’s because his family returned to Russia at the end of their 10-day luxury vacation, which they wouldn’t have done if Klyushin had been planning to defect to the US (if one can start using the term again). So if Klyushin came to decide he wanted to be extradited over the nine months while he was held in Switzerland, he may have only come to that conclusion upon receiving more details about the charges against him, possibly including details that might expose him to the ire of the Kremlin.

It is true, however, that the Russian-speaking attorney Klyushin hired in Boston, Maksim Nemtsev, is not one of the ones (such as Igor Litvak) that Russian nationals retain when they’re refusing to cooperate; Nemtsev appears appropriate to the insider trading charges against Klyushin.

There may be a better explanation for the timing than an auspicious hack, though. As described, Klyushin’s trip to Switzerland was likely his first trip to a US extradition partner after Merrick Garland was sworn in as Attorney General on March 11, 2021, eight days before FBI obtained the arrest warrant for Klyushin.

And while the US has documentary evidence that GRU did the hack, what they hadn’t yet obtained when DOJ obtained the indictment against Yermakov and other GRU officers in 2018 was something far more important: what Russia did with two sets of data — the campaign strategy and polling information turned over from Paul Manafort and the analytics stolen from Hillary through the entire month of September. There’s certainly reason to believe DOJ knows more now than they did in 2018. Last April (so shortly after the arrest warrant for Kluyshin), Treasury stated as fact that the information Konstantin Kilimnik obtained from Manafort did get shared with Russian intelligence, even while asserting that Kilimnik was himself a spook. But how that information was shared and what happened with it has not been made public.

And those are the kinds of questions you might not raise aggressively until after Trump was gone.

Clue: It Was Sidney Powell with the Grifting, in Advance of the Pardon, on Lin Wood’s Plantation

December 31, 2021/78 Comments/in 2020 Presidential Election, January 6 Insurrection, Mueller Probe /by emptywheel

In a post on the significance of the news that the DC US Attorney Office is investigating Sidney Powell’s grift, I noted that she started fundraising to perpetuate false claims about a stolen election — on November 23, 2020 — before she received a thing of value from Trump — a pardon for Mike Flynn — and before she had set up the legal vehicle to do that grifting.

I’m interested in it for a different reason: the way in which Trump named Powell as part of his team, then cut her off, and then pardoned her client and co-grifter, Mike Flynn. Only after that did she formally register the grift.

I wonder whether some smart lawyer grew concerned that Sidney Powell was claiming to represent the President even while she was representing someone asking for a pardon.

On November 15, Trump explicitly named Powell as part of his team. On November 20, Powell appeared at Rudy the Dripper’s press conference. On November 22, Rudy and Jenna Ellis made a show of cutting ties with her.

Sidney Powell is practice 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.

According to Maggie Haberman, either he didn’t like her appearance and/or advisors convinced Trump to separate himself from her nutjobbery. Three days later, November 25, Trump pardoned Powell’s client. The next day, after days of promising to Bring the Kraken, Powell finally started releasing her epically batshit suits. Trump has promoted them.

Indeed, it even appears some Administration lawyers are still associated with Powell’s efforts.

I’m not sure I understand whether there would be a conflict between Powell representing Trump (for free, inevitably, as all lawyers do), making desperate efforts to overturn the election at the same time she was trying to ensure her client did no prison time. If that’s a conflict, it may still exist anyway given Powell’s admission to Judge Sullivan that she had repeatedly discussed Flynn with Trump’s campaign lawyer, Jenna Ellis. The fact that DOJ packaged up altered documents to support a Trump attack on Biden may make those ties more important anyway (or lead to more details about them becoming public).

But if Powell’s involvement made Pat Cipollone and/or Bill Barr — who presumably share the challenging task of helping Trump write pardons that don’t backfire — squeamish, it might explain the timing.

In other words, one of the things that may be of interest to this grand jury is why Sidney Powell started raising money before she had the legal vehicle to do so.

But that would also focus some attention on the fact that Sidney Powell started raising money to help sowing Trump’s conspiracy theories before Trump had pardoned her client (after she told Trump, in the summer, not to do so, yet, something she made clear in a hearing on September 29).

Sidney Powell started raising funds to support her efforts to undermine the election by November 23. On November 25, Trump gave her a thing of value — a pardon for her client. Only 5 days later did Powell make such fundraising legal.

This CNBC report adds a new wrinkle to this timeline: during this same period, Powell and Flynn and Patrick Byrne were at Lin Wood’s two plantations in South Carolina. They appear to have worked in Wood’s residence, Tomotley Plantation, and stayed in Cotton Hall, which he had just purchased.

Lin Wood, a conservative trial lawyer who led a failed legal challenge against the election results in Georgia, said in a lengthy interview that shortly after the 2020 contest last November, he hosted at his massive South Carolina properties fellow right-wing attorney Sidney Powell, former Trump national security advisor Mike Flynn, former Overstock CEO Patrick Byrne, and Doug Logan, the CEO of cybersecurity firm Cyber Ninjas.

Jim Penrose, who says on his LinkedIn profile that he used to work for the National Security Agency, and Seth Keshel, who promotes himself on his Twitter page as a former Army captain and who has spread falsities about the election, according to the Associated Press, also made appearances at Wood’s properties, the attorney said.

[snip]

“They set up in my living room and one of the sunrooms. They looked like election central. They had computers, whiteboards. They were working,” Wood said about Powell and her team’s prior work at his residence. Southern Living magazine describes the living room at Tomotley: “Custom built-ins and a working fireplace bring warmth to the spacious living room.”

[snip]

But many of Powell’s fellow election conspiracy theorists took up residence for days at Wood’s nearby property called Cotton Hall, the veteran attorney explained. It too is considered a historic plantation in South Carolina, and it encompasses over 700 acres. The South Carolina plantations history website says its primary crop in the 19th century was rice.

[snip]

Flynn, for instance, arrived at Tomotley with Byrne days after Powell arrived, Wood said. Though Byrne stayed at Cotton Hall for only a day, Flynn took up residence through Thanksgiving.

“Flynn was here on Thanksgiving because he carved the turkey when we ate over at Cotton Hall,” Wood said during the interview.

It’s unclear why Wood shared all these details. While this report cites the Daily Beast reporting that includes the news on the grand jury investigation, it presents that story instead in the context of the “feud” between Wood, Flynn, Byrne, and Powell. If they haven’t been already, those people would all be subpoenaed in the investigation, and so this might instead be an attempt to coordinate stories or convey what questions are being asked.

But what’s interesting about the timeline is that it seems to suggest that Trump or someone close to him would have called into the plotting on the plantation.

When you pardon someone, you call them or their representative to let them know. And while it’s not certain that Flynn had arrived at the plantation yet when he got the pardon on November 25, the day before he cut the turkey at Wood’s plantation on November 26, Powell had already been there some days before Flynn showed up, meaning — at least per this reporting — she was definitely at Lin Wood’s plantation plotting propaganda to help Trump stay in office on the day of the pardon.

This also adds the delicious detail that a guy who advertised that he had been honey-potted by a woman accused of spying for Russia may have been with Flynn when he received notice he was being rewarded for refusing to admit to Mueller’s team that Trump was involved in efforts to undercut sanctions on Russia in December 2016.

This all would read like a cheap spy novel if there weren’t an accused spy and a guy who admitted he had been secretly working for another frenemy state as well.

But even aside from Byrne’s presence, it sure adds interesting details to the circumstances of Flynn’s pardon that may be of interest to criminal investigators.

The Big Election Lie Built on the Last Big Election Lie

December 26, 2021/159 Comments/in 2016 Presidential Election, 2020 Presidential Election, emptywheel, January 6 Insurrection, Mueller Probe /by emptywheel

Welcome to Byron York’s readers! Since you’re here, you may be interested that Byron didn’t tell you in his error-riddled piece that I was years ahead of the Right Wing in debunking the dossier, and have even noted how Byron ran interference for Oleg Deripaska, thereby hiding the way Deripaska was really fucking over Paul Manafort. And not only did I not attribute Hillary’s loss to Russia, I even challenged the easy claims it was all Comey’s fault. You might ask yourself why Byron didn’t reveal any of that to you (to say nothing of misrepresenting what this post says).

NPR did a good piece last week on Trump’s Big Lie about winning the election.

Call it an insurrection or a coup attempt, it was fueled by what’s known as the “Big Lie”: the verifiably false assertion that Trump won. Joe Biden won 306 votes in the Electoral College, while Trump received 232. In the popular vote, Biden won by more than 7 million votes.

Many are warning that over the past year, that “big lie” of a stolen election has grown more entrenched and more dangerous.

It quoted Tim Snyder, an expert on authoritarians, on how the tactic of telling lies to turn a powerful person into a victim comes right out of Mein Kampf.

A couple of weeks later, he repeated the fiction at a rally in Iowa. “We didn’t lose,” he insisted to a crowd that rewarded him with chants of “Trump won!”

By inverting the narrative, attempting to slough off the “big lie” and pin it instead on his opponents, Trump exploited an age-old tactic, says Yale University history professor Timothy Snyder.

“Part of the character of the ‘big lie’ is that it turns the powerful person into the victim,” he says. “And then that allows the powerful person to actually exact revenge, like it’s a promise for the future.”

Snyder, author of the books The Road to Unfreedom and On Tyranny, has spent years studying the ways tyrants skewer truth. Snyder points to Hitler’s original definition of the “big lie” in his manifesto, Mein Kampf and the ways he used it to blame Jews for all of Germany’s woes.

“The lie is so big that it reorders the world,” Snyder says. “And so part of telling the big lie is that you immediately say it’s the other side that tells the big lie. Sadly, but it’s just a matter of record, all of that is in Mein Kampf.“

That’s all true. As someone who has read virtually all of the statements of offense for those who have pled guilty for January 6, many credibly claim they really believed this Big Lie. Some still believe it. Their lives will be forever changed — some ruined — because they believed Trump was a victim and acted to avenge him.

But there’s something missing from all the worthwhile discussions of the Big Lie. It’s the lie those who helped tell this most recent Big Lie tell.

Consider this interview Chris Hayes did with Dustin Stockton and Jennifer Lynn Lawrence, who’ve been doing a media tour to claim they were betrayed when Trump launched his mobsters on the Capitol.

When Hayes asked them whether they now admit that the election wasn’t stolen, Stockton instead attempted to turn the question around:

Do you now admit that the “Russia memes” that you guys ran 24-hours a day in the early days of the Trump that got maybe several million impressions which our pages often do. [cross chatter] There were tons of ridiculous stuff.

[snip]

Democrats and Republicans, every four years, whoever loses, right, then goes on to say, “oh, it was broken this way, it was broken this way.” It’s not that there aren’t things that aren’t broken and should be done better with mail-in balloting, with the way we verify people, the way we, make sure everybody has access to voting. There is common ground here. The problem is partisanly the Left fights, when they lose, the Right fights, when they lose.

[snip]

Or widespread Russian interference.

Stockton did, ultimately, concede that Biden is President and that there were tons of ridiculous claims about the election. But he excused his own contributions to sowing The Big Lie by equating lies about Trump’s loss with reporting about Russia’s attempt to interfere in the 2016 election, and claimed that reporting arose out of Democratic excuses to explain Hillary’s loss.

That is, a key purveyor of the The Big Lie excuses his actions because MSNBC reported on a Russian investigation that was based off real facts, an investigation that led to the prosecution of Trump’s National Security Advisor, Trump’s Coffee Boy, Trump’s personal lawyer, Trump’s Campaign Manager, and Trump’s rat-fucker, all of whom covered up aspects of the Trump camp’s outreach to Russia in advance of becoming President (Paul Manafort wasn’t prosecuted for his lies, but Amy Berman Jackson agreed with the Mueller team that he lied to cover up, among other things, why he traded campaign strategy for $19 million in debt relief). Stockton equates reporting on all that — plus the dossier and Alfa Bank and the failson’s meeting to trade campaign dirt for sanctions relief, as well as details of the disinformation campaign that had as a primary goal sowing division — Stockton equates all that with a deliberate attempt, over the course of months, to completely dismantle the credibility of our electoral system.

The equation is all the crazier given that, while Hillary herself did put some of the blame for her loss on Russia’s interference, most Democrats blame Jim Comey, the guy whom Trump fired in an attempt to undermine the Russian investigation. Those of us who live(d) in states that Hillary neglected were perfectly happy to blame Hillary’s own mistakes. More importantly, Hillary ceded power with no contest of the results even in closely fought states like Michigan.

This is just one example where Trumpsters excuse their own participation in The Big Lie by turning a bunch of different prongs of reporting on Russia in 2017 — some undoubtedly overblown but much based on real facts about real actions that Trump and his aides really took — into the equivalent of wild hoaxes about efforts to steal the 2020 election.

And it’s not just those who fostered The Big Lie. As I’ve noted, a viral thread earlier this year went further still, blaming January 6 on the Steele dossier (which most Republicans agree was larded with Russian disinformation).

This use of the Russian investigation, the Democratic-paid dossier, and the legitimate reporting on both to rationalize Trump’s actions post-2020 is no accident. That’s one reason I persist in reporting on the dossier: because Paul Manafort came back from a meeting with an Oleg Deripaska associate and encouraged everyone to discredit the Russian investigation by focusing on the dossier. Because it was so full of garbage (some of it placed there at the behest of Russian intelligence, if you believe all the Republican members of Congress to focus on it), it was an easy way to make the real Russian investigation look corrupt to people like Dustin Stockton, to say nothing of the real cover-up disclosed by the investigation.

Before Trump claimed to be the victim of vote fraud, Trump claimed to be the victim of an investigation into the many documented ways in which Trump tried to optimize Russian help to get elected. That claim — that he was the real victim of the Russian investigation — is how Trump trained so many Republicans to put his fate over the fate of the country.

And so as the traditional press turns its attention to the lies that Trump tells to claim he’s a victim, that first lie cannot be forgotten.

Mike Flynn Forgets He Was Shit-Canned by Presidents of Both Parties

December 22, 2021/73 Comments/in 2016 Presidential Election, 2020 Presidential Election, January 6 Insurrection, Mueller Probe /by emptywheel

In a lawsuit attempting to kill an existing subpoena from the January 6 Committee and an as-yet unidentified subpoena to Verizon, Mike Flynn accuses Bennie Thompson of opposing Barack Obama. That’s the only logical conclusion one can draw from Flynn’s claim that the people behind the subpoena of him, “belong to the political party that opposed the President under whom General Flynn served.”

The body that issued the Subpoena is composed of 9 members, 7 of whom belong to the political party that opposed the President under whom General Flynn served. The remaining two members were Republicans hand-picked by Speaker Pelosi because they were vocal opponents of former President Trump from within the Republican Party.

As Flynn himself points out in his lawsuit, he served Barack Obama as Defense Intelligence Agency head for over two years, a total of 744 days. He served Donald Trump as National Security Advisor for around 24 days, a laughably short tenure even by the standards of the Trump Administration.

Plaintiff Lieutenant General Michael Flynn is a retired Lieutenant General in the United States Army, served as the Director of the Defense Intelligence Agency from July 2012 to August 2014, and was the National Security Advisor at the start of the Trump Administration.

Mike Flynn was shit-canned by both Presidents.

Nevertheless, a man fired by Presidents of both parties wants to claim a mere subpoena is a witch hunt against him.

Flynn, predictably, gets a lot else wrong in this lawsuit. His depiction of how Billy Barr attempted, but — even after appointing a team that altered DOJ documents as part of their attempt — failed to blow up the prosecution of him gets details big and small wrong.

He was famously led into a perjury trap by the Federal Bureau of Investigation, pled guilty to making a false statement after the government threatened his son and then agreed not to prosecute his son if he pled guilty. He later sought to withdraw that plea under the guidance of new counsel after the discovery of exculpatory evidence that was withheld from him prior to his guilty plea. When the Department of Justice decided to drop the charges against him, a court stayed his sentencing while the Court considered whether to force the Department of Justice to prosecute him. Ultimately, General Flynn received a Presidential pardon.

There was no perjury trap, his very good Covington lawyers were especially worried about Flynn’s exposure as a secret agent of Turkey, none of the evidence was deemed to be exculpatory, and he had already been prosecuted.

It is true that after Sidney Powell did more harm then good, Trump pardoned the man he shit-canned. It’s also true that Flynn remained equivocal about whether Donald Trump knew about his efforts to undermine sanctions during the Transition — though transcripts of his calls with Sergey Kislyak show that he told Russia’s Ambassador, at least, that Trump did know.

But there are several details in this lawsuit — like all of these lawsuits challenging the January 6 Committee, which appear to be at least partly an attempt to coordinate cover stories — of interest.

As Josh Gerstein observed, the lawsuit is full of dated information.

On January 6, 2021, a large group of people in Washington, D.C., entered the U.S. Capitol, breached security, and disrupted the counting of Electoral College votes until order was restored. The U.S. Department of Justice has arrested more than 500 individuals in connection with those activities on January 6th. General Flynn was not part of, nor was he present, at the Capitol grounds during any of those activities at the Capitol that day. Like most Americans, he saw those troubling events unfold on television.

[snip]

Former President Trump appealed the district court’s order, and the D.C. Circuit Court of Appeals enjoined NARA from releasing the disputed Presidential records pending its ruling. See Mem. Op. 17, Trump v. Thompson, No. 1:21-cv-2769 (D.D.C. Nov. 9, 2021).

On November 30, 2021, the D.C. Circuit held oral argument on the merits of former President Trump’s appeal. This case is still pending.

While I’m not surprised the Dhillon Law Group cited details about the January 6 investigation that are four months out of date, you’d think they — or Flynn, via Jesse Binall, who was part of the Sidney Powell team that represented him — would have heard of the legal thumping that the DC Circuit gave Jesse Binall on December 9.

As Katelyn Polantz observed, by filing this in his home district in Florida (albeit in the wrong district at first), Flynn sets up the possibility of a circuit split with the DC Circuit decision that Dhillon Law Group hasn’t heard about yet.

So this may be part of a concerted plan, but one that being implemented with the legal incompetence characteristic of Trump (and Flynn) lawyers.

Particularly given how dated this lawsuit is, I’m particularly interested in Flynn’s reliance on the investigation into Sidney Powell’s grift to explain his hesitations about cooperating with the Committee.

Flynn bases his knowledge about the investigation into Sidney Powell on a November 30 WaPo story (though he credits NYT with the scoop), not personal knowledge of the investigation.

In 2021, General Flynn was briefly a board member of a nonprofit founded and led by his defense counsel, Ms. Powell, called Defending the Republic. In September 2021, a federal prosecutor handling the January 6 Capitol attack as well as the criminal contempt of Congress proceedings against individuals referred by the Select Committee also subpoenaed the records of Defending the Republic in connection with a criminal investigation into its activities.

[snip]

In September 2021, the Department of Justice obtained a grand jury subpoena for records of a nonprofit General Flynn briefly served as a director, which was founded and led by his criminal defense counsel, Sidney Powell. The subpoena was signed by an Assistant U.S. Attorney prosecuting matters related to the January 6 Capitol attack as well as contempt of Congress charges against Stephen K. Bannon for not complying with the Committee’s subpoena. Isaac Stanley-Becker, Emma Brown, and Rosalind Helderman, Prosecutors Demanded Records of Sidney Powell’s Fundraising Groups As Part of Criminal Probe, NEW YORK TIMES, Nov. 30, 2021.

Here’s a December 1 Daily Beast story with other details of the investigation (which may come from Lin Wood or Patrick Byrne). Here’s my post noting that the virgin birth of the grift times awkwardly with Flynn’s own pardon.

In language immediately preceding one of those descriptions, Flynn misleadingly claims that the Committee subpoena against him starts “just before” DOJ “sought to dismiss the charges against him in May of 2020.”

(The Subpoena curiously seeks documents from General Flynn starting just before the Department of Justice sought to dismiss the charges against him in May of 2020, and long before the 2020 election or the January 2021 attack on the Capitol.) In late 2020, General Flynn publicly stated his concerns about the integrity of the 2020 elections, as did many other citizens. General Flynn did not organize or speak at any events on January 6 in Washington D.C.

The start date for the subpoena actually starts on April 1.

Still, I find it interesting that Flynn is so worried about what happened during Billy Barr’s failed attempt to blow up his prosecution. And I find it interesting that Flynn claims to have no firsthand knowledge of the investigation Molly Gaston is leading into Sidney Powell’s grift.

Incidentally, Gaston originally pulled three January 6 cases in the investigation’s early days, those of Robert Packer, Robert Gieswein, and Derrick Evans, just the latter of which, involving a then-West Virginia state politician, had any possible public corruption component. But, at a time of immense staffing shortages at DC’s US Attorney’s Office, she dropped off those cases on February 18 (in the case of Packer) and March 29 (in the case of Gieswein and Evans). I’ve long wondered what, in the weeks after Merrick Garland came in, became a higher priority for the DC US Attorney’s leading public corruption prosecutor. We now know one thing she picked up in the interim was the prosecution of Michael Riley, the Capitol Police Officer who advised rioter Jacob Hiles to delete Facebook posts about his role in the riot. And by September, Gaston’s grand jury investigation into Sidney Powell’s grift had started taking overt steps like subpoenaing Powell’s nonprofit.

Anyway, back to Mike Flynn.

Unlike the other people suing, Flynn appears to be uncertain about whether Verizon received a January 6 Committee subpoena targeting him. John Eastman returned the subpoena targeting him with his lawsuit. Alexander included the notice of the subpoena — dated December 2 — he received from Verizon. Meadows also included the notice of the subpoena.

But Flynn doesn’t include documentation like that to substantiate his basis for believing that Verizon got a subpoena targeting him. Rather, he says that he thinks Verizon got a subpoena targeting him — from the January 6 Committee — because they got one for Mark Meadows.

Upon information and belief, the Select Committee is not only targeting a wide variety of individuals with sweeping subpoenas, but also is obtaining extensive private records about various individuals—including cooperating witnesses—by issuing subpoenas to their telecommunications providers.

For example, the Select Committee issued a subpoena to Verizon Wireless seeking subscriber information and cell phone data associated with former White House Chief of Staff, Mark Meadows (the “Verizon Subpoena”). The subscriber information requested includes subscriber names and contact information, authorized users, time of service provided, account changes, associated IP addresses, and other metadata. The cell phone data requested could include all calls, text messages, and other records of communications associated with that phone number. This data can be used for historic cell site analysis. The Verizon Subpoena requested all of Mr. Meadows’ personal cell phone data for four months: from October 1, 2020, and January 31, 2021.

That is, unless Verizon has lost track of whom to bill for his cell service (or unless the General is confused about who is service provider is), it appears that Flynn — who was, for a period, on the board of the Powell nonprofit already being investigated by a grand jury in September — didn’t get a letter on December 2 alerting him that January 6 had subpoenaed his phone records.

Don’t get me wrong: particularly given his propensity to lie, Mike Flynn is not wrong to invoke the Fifth Amendment to avoid answering questions from the January 6 Committee (though he still is on the hook for the document request). That would be true even if Molly Gaston weren’t investigating Sidney Powell, but with the investigation, he’s quite right to invoke the Fifth (again — he did so with the SSCI Russian investigation too).

But if there’s a reason why the House Committee didn’t feel the need to ask for his phone records, that may be the least of his worries.

The most interesting aspect of the January 6 investigation that no one is covering — not even in a NYT story on criminal referrals — is the means by and extent to which the Committee is deconflicting with DOJ. There must be a legislative affairs person doing this near full time, unless Thompson and Liz Cheney — the daughter of someone who played a key role in screwing up Iran-Contra by refusing to do this — are doing this at a higher level. But the story about whom the Committee hasn’t subpoenaed — which includes both Sidney Powell and Rudy Giuliani, both known to be under investigation by DOJ — is as interesting as who they have.

Behind the Arrest of Putin’s Pen-Tester, Vladislav Klyushin

December 22, 2021/21 Comments/in 2016 Presidential Election, Cybersecurity, emptywheel, Mueller Probe /by emptywheel

There’s a gratuitous passage in the March 20, 2021 complaint charging Vladislav Klyushin, Ivan Yermakov, Igor Sladkov, Mikhail Irzak, and Nikolay Rumyantev with conspiracy to violate the Computer Fraud and Abuse Act. It describes that Klyushin — the guy just extradited to the US on the charges — possessing a picture of Alexander Borodaev and Sergey Uryadov posing in front of Scotland Yard in London.

Thus far, it’s unclear who the guys in the picture are, other than customers of M-13’s “investment services,” for which they paid extortionate 60% commissions to benefit from the insider trading scheme allegedly run by Klyushin and Yermakov. But, in addition to alerting Klyushin to how many of his personal files the FBI has obtained, folks back in Russia will have a taste of the kind of information at risk now that Klyushin is in US custody.

That is, this passage, and a host of others in the charging documents, appear designed to maximize the discomfort of a number of people involved, as much as justifying the arrest and extradition of the guy who led a company that provided services that amount to information operations to Vladimir Putin. As the DOJ presser explained,

M-13’s website indicated that the company’s “IT solutions” were used by “the Administration of the President of the Russian Federation, the Government of the Russian Federation, federal ministries and departments, regional state executive bodies, commercial companies and public organizations.” In addition to these services, Klyushin, Ermakov and Rumiantcev also allegedly offered investment management services through M-13 to investors in exchange for up to 60 percent of the profit

The insider trader scheme works like this: Klyushin (the guy in US custody) and Yermakov (a key person involved in the 2016 DNC hack, described in DOJ’s press release as a “former” GRU officer), along with one other guy from M-13, area accused of hacking at least two US filing agents to obtain earnings reports before they were officially released. They conducted trades for a handful of clients — along with Borodaev and Uryadov, Boris Varshavskiy is mentioned. Klyushin also conducted trades for himself. The three M-13 figures were indicted on conspiracy, hacking, wire fraud, and securities fraud charges on April 6, 2021, an indictment that formalized the extradition request for Klyushin, who had already been arrested in Switzerland.

Then there are two apparent private citizens who live in St. Petersburg, Michail Irzak and Igor Sladkov. They were indicted on May 6, 2021 on conspiracy to hack and hacking charges, along with securities fraud. That indictment (like the complaint) focuses on some different trades than the Klyushin one (and because neither is likely to be extradited anytime soon, the second indictment may shield some portion of evidence from discovery).

Actions attributed elsewhere to Yermakov are attributed to Co-Conspirator 1 in that indictment, and it is on that basis that Irzak and Sladkov are exposed to the hacking charges. Irzak and Sladkov don’t appear to have been paying the extortionate 60% fees that the other M-13 clients were, which makes me wonder whether Yermakov was helping buddies get rich on the side. Worse still, Sladkov had some epically bad operational security; the indictment describes he had in his possession pictures showing:

A picture of a black Acer computer, with a blue Russian Olympic Committee sticker over the camera, showing a press release with Snap’s 2017 earnings that was not released publicly until 8 hours later.
A picture showing the same Acer computer with the same blue sticker showing his own trading activity on BrokerCreditService on May 2, 2018
A picture taken on July 24, 2018 at 2:05PM (ET) showing himself and Irzak sitting at a brown table; Irzak had Facebook running at the time, which showed him to be in the vicinity of Sladkov’s house
A picture dated July 25, 2018 showing him trading in a bunch of shares the earnings reports of which had been illegally accessed the day before
A picture dated October 14, 2018 showing a hand-written note instructing to “short” three shares, which Irzak did short two days later

In other words, Sladkov documented much of his insider training in photographs (perhaps to share the instructions with Irzak), and left all those photographs somewhere accessible to the US government.

If Yermakov was sharing this information with these guys without permission, then Sladkov’s role in providing the US government really damning information that would form the basis for an arrest warrant for Klyushin, then things might get really hot.

But it’s not like Klyushin or Yermakov did much better. In addition to the pictures of the clients, above, and some screencaps that got sent showing trading activity (though with less obvious evidence of insider trading), there’s a bunch of messaging from both, including an oblique reference to messages Yermakov and Borodaev sent on November 19, 2020 that have nothing to do with the context of the indictment but happens to be after the US election. There are even pictures Klyushin shared with Yermakov, “showing a safe that contained growing stacks of U.S. one hundred dollar bills.”

Yermakov appears to have used one of his messaging accounts via multiple devices, because on December 3, 2018, when he “forgot telephone at work,” he was still able to message Klyushin about closing out a trade. Using the same messaging app across platforms would offer one means of compromise, especially if the FBI had gotten into Yermakov’s device updates. The indictment doesn’t mention a warrant for such messaging that you would expect if it took place on Facebook.

Again, this indictment seems to aim to cause discomfort and recriminations based on information in US possession.

But then there’s the question of how it came about, how it landed in Massachusetts rather than DC (where the lead FBI agent is from) or NY (where the trades get done) or Pittsburgh, where one of the prior indictments against Yermakov was done.

The indictments and complaint base the MA jurisdiction on the fact that the culprits used a VPN that used a server in MA on several occasions. At a presser the other day, Acting US Attorney Nathaniel Mendell suggested the case had been assigned to MA because of its good securities prosecution teams.

As to how it came about, purportedly, the story starts in January 2020, when two filing agents allegedly hacked by the men, FA1 and FA2, reported being hacked at virtually the same time. Someone had used an FA1 employee’s credentials on January 21, 2020 to access the earnings data for IBM, Steel Dynamics, and Avnet before those results were publicly announced the following day, but no similar transaction noted with respect to F2 (indeed, a list of accesses involving F2 have a gap from November 2019 through May 2020). The investigation determined that FA1 had first been hacked by November 2018 and that FA2 had first been hacked by October 2017.

FA1 and FA2 discovered this compromise just months after the third M-13 employee, Rumyantev, was blocked by his Russian-based brokerage account for suspicious transactions. Months after FA1 and FA2 reported their compromise, Rumyantev and Klyushin lied to a Denmark bank that they were working entirely off of public information. By that point, in other words, banks in at least two countries were onto them.

Then, the story goes, the FBI investigated those hacks — through domains hosted by Vultr Holdings to a hosting company in Sweden to a user account under the name Andrea Neumann. From there, the FBI tracked back through some Bitcoin transactions made in October and November 2018 to the IP address for M-13 where they just happened to discover one of the very same hackers that was behind the 2016 hack of the DNC was also behind this hack. Mendell sounded pretty sheepish when he offered that explanation at the press conference.

Perhaps it’s true, but another key piece of evidence dates to actions Yermakov took on May 9, 2018, when he was under very close scrutiny as part of the twin investigations into his role in the hacks of the DNC and doping agencies, but before the first indictment against him was obtained.

Based on a review of records obtained from a U.S.-based technology company (the “Tech Company”), I have learned that on or about May 9, 2018, at 3:44 a.m. (ET), an account linked to ERMAKOV received an update for three native applications associated to the Tech Company. Records show that the May 9, 2018 application updates were associated to IP address 119.204.194.11 (the “119 IP Address”).

Based on my review of a log file from FA 2, I learned that on or about that same day, May 9, 2018, starting at 3:46 a.m. (ET)–approximately two minutes after ERMAKOV received application updates from the Tech Company–the FA 2 employee’s compromised login credentials were used to gain unauthorized access to FA 2’s system from the same 119 IP Address, and to view and/or download earnings-related files of four companies: Cytomx Therapeutics, Horizon Therapeutics, Puma Biotechnology, and Synaptics.7 All four companies reported their quarterly earnings later that day.

It would be rather surprising if the FBI agents investigating the DNC hack had not at least attempted to ID the IP associated with Yermakov’s phone (or other device) back in 2018. Whether or not they watched him engage in insider trading for years after that — all the while collecting evidence from co-conspirators flaunting the proof of their insider trading — we may never learn. The discovery on this case, featuring evidence explaining how the FBI tracked the insider trading of Putin’s pen-tester, will certainly feature a number of law enforcement sensitive techniques that Klyushin would love to bring back to Putin.

But it’s possible these techniques were what the FBI used to target these guys four years ago now, and the insider trading that Yermakov was doing in addition to whatever he spent the rest of his time doing has now provided a convenient way to bring Putin’s pen-tester to the United States for a spell.

Update: Included the pictures of the safe included with his detention memo, as well as earnings reports from Sladkov’s computer. Note the detention memo says the latter came from an ISP.

Hot and Cold Running John Durham Conspiracy Conspiracies

December 20, 2021/31 Comments/in 2016 Presidential Election, emptywheel, Mueller Probe /by emptywheel

I’d like to congratulate Assistant [Durham] Special Counsel Michael Keilty. In what is close to a first from Durham’s team, he submitted a filing without obvious glaring errors (like the Criminal Information for Kevin Clinesmith that revealed the Durham team didn’t even know for what crime Carter Page had been investigated or their persistent cut-and-paste errors).

The filing is a motion for miscellaneous relief, asking Judge Anthony Trenga to require Igor Danchenko to waive any conflict he might have because his new defense attorneys, Danny Onorato and Stuart Sears, are at the same firm as (according to Josh Gerstein) Robert Trout, who is representing, “the 2016 “Hillary for America” presidential campaign (the “Clinton Campaign”), as well as multiple former employees of that campaign, in matters before the Special Counsel.”

The filing is entirely reasonable.

It simply asks that Judge Trenga inquire into the conflict presented by partners from the same firm representing multiple investigative Durham subjects and ensure that if Danchenko chooses to continue with Onorato and Sears as his attorneys, he does so waiving any potential conflict down the road.

Notwithstanding the potential conflicts involved, the government believes that this potential conflict is waivable, should the defendant so choose, assuming a knowing, intelligent and voluntary waiver is executed.

Based on the foregoing, the government respectfully requests that Court inquire into the conflict issues set forth herein.

It’s how Keilty gets there — as well as the Durham’s team uneven treatment of the connectivity of their investigation — that I find interesting. Remember: The Clinton campaign is referenced in Michael Sussmann’s indictment, though Durham already had to confess that the indictment overstated Sussmann’s contacts with members of the campaign.

But Durham’s effort to implicate the Hillary campaign in Danchenko’s actions is more of a stretch, going through Charles Dolan and entailing treating Hillary as a more dangerous adversary than Russian intelligence.

Again, the Paul Manafort report may be the most provably correct report in the entire dossier. Claiming (correctly) that Manafort was ousted not just because of his corrupt ties in Ukraine — a claim that Republicans have spent five years claiming was just a propaganda campaign launched by Democrats — but also because others wanted him out actually undercuts the story that has always claimed to be the most useful to Democrats. The report on Embassy staff changes was, Durham suggests, based directly off quotes Dolan got from the staffer in question; indeed, Durham points to the accuracy of those quotations to prove the report came from Dolan. There was a flourish added — that the person in question was untainted by involvement with the Russian election operation — which Danchenko disclaims, but there’s no evidence the flourish comes from Dolan (or even Danchenko — it’s the kind of thing Steele seems to have added). In other words, assuming Dolan was the source for the things Durham claims he was, Dolan seems to have been the most accurate source for the dossier.

There was an unbelievable amount of shit in the dossier and it would be useful if there were an accounting of how that happened (which Durham is not doing here). The Danchenko-to-Steele reporting process (which, contrary to Durham’s claims, Danchenko candidly laid out in his first interviews with the FBI) was one source of the problems with the dossier. But at least as much of the shit seems to come from Danchenko’s sources, several of whom had ties to Russian intelligence and who may have been deliberately injecting disinformation into the process. Instead of focusing on that — on Russians who may have been deliberately feeding lies into the process — Durham instead focuses on Dolan, not because Durham claims he wittingly shared bad information to harm Trump (his one lie served to boost an accurate story that went against the grain of the Democrats’ preferred narrative), but because as a Democrat he — not Russian spies — is being treated by Durham as an adversary.

Plus, at least as alleged in the Danchenko indictment, there’s no firsthand Hillary witness necessary to Danchenko’s conviction. The witnesses to Danchenko’s five alleged lies are all FBI personnel. The evidence against Danchenko regarding the four claimed lies about Sergei Millian involve Danchenko’s own emails and — !!! — the hearsay Twitter account of someone once and possibly still suspected of being a Russian agent. Dolan’s testimony about what he and Danchenko discussed six years ago at the Moscow Ritz will undoubtedly be of interest to the jury and still more interest to the frothy right, but not only is that not necessary to prove the single count claiming Danchenko lied about Dolan’s role in all this, it falls short of proof that Danchenko didn’t go from that lunch to speak to personnel at the Ritz himself.

Even though no one with a paid gig on the Hillary campaign is needed (or even, at least as charged, conceivably useful) as a witness against Danchenko, here’s how Keilty lays out the potential conflict.

As discussed above, the Clinton Campaign, through Law Firm-1 and U.S. Investigative Firm-1, commissioned and financed the Company Reports in an attempt to gather and disseminate derogatory information about Donald Trump. To that end, U.K. Person-1 relied primarily on the defendant to collect the information that ultimately formed the core of the allegations contained in the Company Reports. The Indictment alleges that certain statements that the defendant made to the FBI about information contained in the Company Reports, were knowingly and intentionally false. Thus, the interests of the Clinton Campaign and the defendant could potentially diverge in connection with any plea discussions, pre-trial proceedings, hearings, trial, and sentencing proceedings. Areas of inquiry that may become relevant to defense counsel’s representation of the defendant, and which also may become issues at trial or sentencing, include topics such as (1) the Clinton Campaign’s knowledge or lack of knowledge concerning the veracity of information in the Company Reports sourced by the defendant, (2) the Clinton Campaign’s awareness or lack of awareness of the defendant’s collection methods and sub-sources, (3) meetings or communications between and among the Clinton Campaign, U.S. Investigative Firm-1, and/or U.K. Person-1 regarding or involving the defendant, (4) the defendant’s knowledge or lack of knowledge regarding the Clinton Campaign’s role in and activities surrounding the Company Reports, and (5) the extent to which the Clinton Campaign and/or its representatives directed, solicited, or controlled the defendant’s activities. On each of these issues, the interests of the Clinton Campaign and the defendant might diverge. For example, the Clinton Campaign and the defendant each might have an incentive to shift blame and/or responsibility to the other party for any allegedly false information that was contained within the Company Reports and/or provided to the FBI. Moreover, it is possible that one of these parties might also seek to advance claims that they were harmed or defrauded by the other’s actions, statements, or representations. In addition, in the event that one or more former representatives of the Clinton Campaign (who are represented by defense counsel’s firm) are called to testify at any trial or other court proceeding, the defendant and any such witness would be represented by the same law firm, resulting in a potential conflict. Finally, it is also likely that defense counsel’s firm already has obtained privileged information from the Clinton Campaign regarding matters involving or relating to the defendant, the Company Reports, and the conduct alleged in the Indictment.

Some of this is the kind of fevered conspiracy theorizing that has fueled Durham for 950 days so far and sustains the Durham presumption that Hillary Clinton is a greater adversary to the United States than Russian intelligence operatives. None of it is contained within the existing indictment. It doesn’t envision as a possibility that this was all a clusterfuck better suited to a child’s game of telephone than the conspiracy Durham needs it to be. It also seems to forget that even if Danchenko lied to Christopher Steele, that would not amount to fraud on the Hillary campaign.

But it is a road map to what Durham is planning: an attempt to sic various participants in the 2016 efforts against each other such that they start entering cooperation agreements in which they spin up the grand conspiracy Durham is certain exists. It’s certainly sound prosecutorial strategy for Keilty to alert Judge Trenga that down the road they seek to pit all the subjects of their investigation against each other such that down the road, people who have never been alleged to have interacted with Danchenko personally might one day testify against him, all to support the claim that the Hillary campaign engaged in a conspiracy to defraud the FBI, DOJ, and DARPA funders.

But it raises questions about something that happened in the other active prosecution of the Durham investigation, Michael Sussmann’s. Based on court filings and what was said at a December 8 hearing in the Sussmann case, Durham has the following evidence about what Sussmann did or did not say:

A report written by Durham investigators, probably in conjunction with a 2017 leak investigation, in which “Durham or someone on his team questioned James Baker’s credibility.”
An October 3, 2018 Baker interview that conflicts with the indictment.
An October 18, 2018 Baker interview that conflicts with the indictment.
A July 15, 2019 Baker interview that conflicts with the indictment.
The first Durham interview with Baker on this subject, in June 2020, that conflicts with the indictment.
Three more Durham interviews with Baker on this subject that align with the indictment.
Grand jury testimony that must align with the indictment, but which had not been released to Sussmann’s cleared lawyers before the December 8 hearing.
Hearsay testimony from Bill Priestap that generally aligns with the indictment.
Hearsay testimony from another FBI witness that differs in some respects from Priestap’s and may or may not align with the indictment.
Testimony from two CIA witnesses at a different meeting that may or may not align with the indictment.
A report based on notes that have been destroyed, the final version of which differs somewhat from the indictment and may or may not align with it.
A draft (there seems to be some disagreement whether it is a memorandum to the file or emails) of that CIA report that reflects Sussmann mentioning a client — which therefore dramatically undermines the indictment.
At least one 302 reflecting an interview with Baker about another aspect of the Durham investigation.

Had Mueller believed it ethical to charge someone with evidence this contradictory — and I’m really not exaggerating when I say this — he had the goods to charge Trump with agreeing to give Russia sanctions relief in exchange for an impossibly lucrative real estate deal in Moscow. He could have charged Paul Manafort with trading $19 million in debt relief for the campaign strategy and help carving up Ukraine. He could have charged Roger Stone — and through him, Donald Trump — with entering into cooperation with the Russian hacking team before they spent September hacking Hillary’s analytics, for a still unexplained purpose.

This list of conflicting evidence that Durham has is a testament to the recklessness with which he has decided to pursue his own feverish conspiracy theories. It doesn’t mean he won’t get there. He might! It means he’s engaging in extraordinary conduct to get there.

It’s the last bullet I find particularly interesting. In the December 8 hearing, AUSA Andrew DeFilippis explained, “We did a meeting w/Mr. Baker in which we did not touch on charged conduct. We did not produce to defense.” That is, they’re withholding at least one 302 of a Durham interview in this investigation with Baker. Judge Christopher Cooper responded that he, “won’t disturb USG’s view that this is not discoverable.”

So on the one hand, Durham’s prosecutors are arguing that a conspiracy not yet charged creates conflicts for an Igor Danchenko indictment that doesn’t implicate any paid members of the Hillary campaign. But on the other hand, they’re arguing that the same investigation is sufficiently bracketed that they’re not required to provide Sussmann the records of what exposure Baker himself may have that might persuade him to change his story.

Sussmann’s attorney Sean Berkowitz observed that Baker had obviously changed his story. Durham’s team explains that’s because Baker refreshed his memory (though what we’ve seen of the contemporary records suggest there are two possible readings of them). But Sussmann could well argue that, because of criminal exposure himself, Baker changed his story to reflect what Durham wanted it to be.

As I have said, repeatedly, Durham needs Sussmann to have lied to have any hope of building this conspiracy case, and if he fails, each of the parts are far weaker.

And while claiming the conspiracy case he has not yet charged creates already existing conflicts, he’s still going to withhold the evidence of the conspiracy he’s trying to create.

How SDNY Came to Treat James O’Keefe Better than Former SDNY US Attorney Rudy Giuliani

December 19, 2021/25 Comments/in 2016 Presidential Election, 2020 Presidential Election, emptywheel, January 6 Insurrection, Mueller Probe /by emptywheel

It has been a week since Judge Analisa Torres appointed Barbara Jones as Special Master to review materials seized from James O’Keefe and two other Project Veritas figures, and prosecutors from the Southern District of New York have not made any public complaint to the terms of her order. So I’d like to emphasize what SDNY found tolerable in the Project Veritas matter as compared to the search of Rudy Giuliani’s phone.

These are the instructions Judge Torres issued for the Special Master review of Project Veritas’ devices.

The Government shall complete extraction of the materials from Petitioners’ devices. The Government shall provide the extracted materials to the Special Master.

The Special Master shall expeditiously conduct an initial review of the extracted materials to determine what materials are responsive to the search warrants. To assist with the Special Master’s review, the Government shall provide the Special Master, on an ex parte basis, with a copy of the search warrants executed on Petitioners, the underlying application materials for those search warrants, and any other information that will assist the Special Master in conducting her review. If the Special Master determines that the efficient administration of her duties requires the assistance of additional professionals, support staff, or expert consultants, she may submit a work proposal to the parties, who will have five business days to submit comments, after which time the Special Master may then submit the proposal to the Court for consideration.

Materials deemed to be responsive to the search warrants shall be provided by the Special Master to the filter team, which shall be walled off from the investigative team working on matters related to the investigation that is the subject of the search warrants or any investigation related to Petitioners.

The filter team shall conduct a review of the responsive materials to determine if any should be withheld from the investigative team on any grounds—including grounds related to any First Amendment concerns, journalistic privileges, and attorney-client privileges.

After the filter team conducts its review, Petitioners shall review the materials slated to be released to the investigative team and raise any objections. The Special Master shall rule on any objections and provide the proper materials to the investigative team. [my emphasis]

Effectively, SDNY will provide Jones all the contents of O’Keefe’s phones. She will then do a responsiveness review to identify the material responsive to the warrants targeting O’Keefe. That material will then go to an FBI filter team, which will review it for privilege. After that, PV will get to review the materials to raise objections (with no limit on the objections identified, though presumably these would be based on privilege). Jones will then rule on those objections and provide whatever she deems appropriate to the investigators.

That approach offers PV far more protection than the President’s former lawyer Rudy Giuliani is getting. In the Special Master review of materials seized from the former SDNY US Attorney, Judge Paul Oetken ordered Jones to conduct an initial privilege review.

The Special Master shall render decisions regarding privilege issues relating to the materials seized in the execution of certain search warrants dated April 21, 2021, and April 28, 2021, and executed on April 28, 2021 (the “Seized Materials”). The specific duties of the Special Master are as follows and shall include all powers necessary to carry out these duties:

a. Conducting an initial privilege review of the Seized Materials and adjudicating privilege disputes between the parties;

The parties then had a debate about the sheer scope of the seized materials. As part of that, SDNY agreed to limit the temporal range of Jones’ review to documents that date between January 1, 2018 and the date of execution in April 2021. But SDNY argued that there’s no basis for a Special Master to conduct a responsiveness review.

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

Ultimately, Judge Oetken agreed with SDNY, ruling — in an order that preceded Torres’ and therefore which SDNY could have pointed to as a precedent — that there is no legal authority mandating a Special Master review for responsiveness, rather than privilege.

Second, the warrants themselves do not contemplate that an arm of the Court, rather than Government investigators, would conduct a review of the warrant materials for responsiveness, nor is the Court aware of any legal authority mandating such review. To be sure, as the Government acknowledges, the warrants must be executed according to their terms. But the fact that the Court has appointed a Special Master for privilege review in this circumstance does not dictate that such review be expanded to review for responsiveness.

As Jones has made clear in one of her few public reports in the Rudy review thus far, for the files from this time period over which Rudy (or Victoria Toensing or Dmitry Firtash) don’t claim privilege, they’ll all go to the FBI.

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.

From there, FBI (with no filter team) will do a responsiveness review for the Ukrainian foreign influence peddling investigation and for any other warrants DOJ has happened to obtain targeting Rudy’s phones.

A recent Oetken order makes clear that, eight months after the seizure of these files, we’ll soon see some privilege battles take place in semi-public form, with description of the content of the materials sealed, but not the basis for privilege claims. At this point in the Michael Cohen fight, Trump chose not to fight privilege claims on some crime-fraud excepted communications, most notably pertaining to his hush payments.

The effect of these two reviews will be dramatically different. In PV’s case, only those materials pertinent to the alleged theft of Ashley Biden’s diary will ever become available to the FBI, and even after the FBI filter team does a privilege review, PV will have an opportunity to argue for withholding that material from DOJ. While this process might result in slightly more materials being shared with investigators than might have happened in response to a subpoena (and would have had the effect of limiting any data destruction), it gives PV something close to an opportunity to suppress evidence pre-charge. The review will also ensure that DOJ does not obtain evidence that might otherwise implicate PV, such as the way it permits “donors” to influence the timing of particular “reporting” campaigns.

Whereas, as I’ve laid out before, DOJ will have the ability to obtain materials from Rudy responsive to the Lev Parnas-associated investigation, as well as anything that might be responsive to warrants investigating other crimes, including (but not limited to) his role in Trump’s obstruction of the Mueller investigation and his role in Trump’s attempted coup.

It’s not like SDNY — nicknamed “Sovereign District” for their aggressiveness — to cede a legal point without a fight. But here, having just prevailed on the principle that there’s no legal basis for a Special Master to conduct a responsiveness review, they let a decision stand ordering a Special Master to conduct a responsiveness review, and only after that, to review FBI’s own privilege determinations.

The two different approaches may reflect not so much legal principle, but the relative goals of the prosecutorial teams and/or DOJ’s priorities. PV got its surrogates in Congress — and even tried to solicit Democratic support — for its claims that its extortion-like behavior is a journalistic function. Effectively, accepting a Special Master responsiveness review resets this matter close to where it would have been if PV was genuinely accommodating the subpoena in good faith (as it wasn’t, before the seizure). It also may be the case, however, that SDNY has reason to know what they’re looking for are Signal or Telegram texts involving O’Keefe personally, with the expectation that they’ll get other responsive documents via the subpoena.

That SDNY was so willing to accept the PV result, though, highlights how aggressively they fought to defeat any responsiveness review with Rudy. Their argument against a Special Master review for responsiveness, with a subject whose files are among the most sensitive imaginable, is precisely what makes those materials available for other possible investigations. That was a fight that SDNY — and Merrick Garland’s DOJ — was willing to make, and a fight they won.

Somehow and for some reason, the President’s former lawyer is being treated less favorably by his former office than your garden variety rat-fucker. The reasons why that might be bear some consideration.