DOJ Already Debunked the Lies Ali Alexander Is about to Tell Congress

/15 Comments/in , , , , /by

For all the whinging about the pace of the various investigations into January 6, DOJ’s investigation has already gotten further into the Roger Stone side of the investigation than the Mueller investigation had by the time Stone testified to the House Intelligence Committee on September 26, 2017. At that point, almost fourteen months into the investigation into which of Trump’s rat-fuckers were coordinating with Russia, Mueller had obtained warrants targeting just Stone’s Twitter and Hotmail accounts.

As Stone acolyte Ali Alexander testifies before the January 6 Committee today, by comparison, just 11 months into the investigation, DOJ is already more than 100 days past the arrest of one of the men Stone and Alexander worked closely with on sowing insurrection, Owen Shroyer.

That makes the feat Ali Alexander is going to try to pull off when he testifies today to the January 6 Commission that much more fraught than what Stone tried four years ago. That’s because DOJ has already debunked some of the lies he plans to tell Congress.

In his prepared statement, which the NYT obtained, Alexander (who was originally subpoenaed because of the way he used covers to obtain multiple permits around the Capitol and incited violence in advance, neither of which he addresses in his statement) claims that he was attempting to de-escalate the riot after it started.

There are a number of videos of my associates and me arriving at the Capitol on January 6 after the violence had begun but in the early stages of the lawbreaking. In those videos, our group can be seen working with police to try to end the violence and lawbreaking. We can be seen yelling and screaming at people to STOP trying to enter the Capitol and STOP violent lawbreaking in general.

I believe those videos have been provided to the committee. If they have not, I will be happy to share them.

While I was actively trying to de-escalate events at the Capitol and end the violence and lawlessness, it’s important to note that certain people were nowhere to be found, including Amy Kremer, Kylie Kremer, and Katrina Pierson; essentially, the Women for America First leadership of the Ellipse Rally that was originally titled the “March for Trump” in their National Park Service permit application. Press reports suggest they may have had their feet up drinking donor-funded champagne in a War Room in the Willard. I don’t know where they were. But they weren’t working with police trying to de-escalate the chaos like I was.

It is my belief there may not have been a problem had that same leadership at the Ellipse event not intentionally removed instructions from the program that were supposed to be included to provide clarity on exactly where to go following the Ellipse event. When I protested the removal of those instructions, I was barred from participating as an organizer at the Ellipse event that preceded the Capitol riot. Ultimately, I was a VIP guest at the Ellipse event.

As a result, civil authority collapsed before the Ellipse Rally was over, before I arrived, and before my event was scheduled to begin.

To clarify: My permitted event at Lot 8 never took place. The “One NationUnderGod”event that Stop the Steal was a part of did not start the chaos. The chaos was well underway before our event was scheduled to begin.

We never held our event. We weren’t allowed to. [bold my emphasis, underline Alexander’s]

When Shroyer attempted to make this very same argument in a motion to dismiss in October, he at least included one (but not the most damning) video along with his argument. Here, having received a subpoena asking for such items, Alexander vaguely waves at videos he assumes the Committee has already received.

As the government’s response to Shroyer’s motion laid out, as Shroyer and Jones and Alexander led mobs to the Capitol even after “civil authority” had, according to Alexander, already “collapsed,” the InfoWars personalities were further riling up the mob.

After hearing that people may have breached the Capitol, [Shroyer], [Alex Jones],  and others began leading this large crowd down Pennsylvania Avenue toward the Capitol Building.4 The defendant is encircled in red below with a megaphone, at the front of the crowd.

En route, [Shroyer] continued shouting to the crowd walking behind and around him through his megaphone: “The traitors and communists that have betrayed us know we’re coming. We’re coming for all you commie traitors and communists that have stabbed us in the back. You’ve stabbed us in the back one too many times!” He continued, “We will not accept the fake election of that child-molesting Joe Biden, that Chinese Communist agent Joe Biden, we know where he belongs and it’s not the White House!” The defendant then led chants of “Stop the steal!” and “1776!”—an apparent reference to the “first” American Revolution and a renewed need to overthrow the government.

4 See Dkt. 1 at 4 n.5 (citing https://banned.video/watch?id=5ff634c2f23a18318ceb19f1 (last accessed on November 12, 2021)); see also Dkt. 1 at 6 n.8 (citing https://banned.video/watch?id=5 ff6148af23a18318ce99233 (last accessed on November 12, 2021)). [yellow circle marking Alexander added]

Then Jones, Shroyer, and Alexander gave a speech inside the restricted area of the Capitol (but not at one of the areas for which Alexander had a permit).

After the Joint Session got underway at 1:00 p.m., Shroyer entered the Capitol Grounds. He first positioned himself with others on the west side of the Capitol Building, within both the restricted area on January 6 and the broader Capitol Grounds boundaries on the defendant’s DPA map seen above. There, he stood on stacks of chairs and other equipment with [Jones] and led a crowd of hundreds of individuals on the Capitol grounds in chants of “USA! USA! USA!”6 [Shroyer] is encircled in red below on the Capitol grounds soon after leading these chants with a megaphone.

[yellow circle marking Alexander added]

The government doesn’t note it, but January 6 trespasser Stacie Getsinger did on Facebook: while at that non-permitted spot, Jones promised the mob that if they followed him to the East side of the Capitol, they’d get to hear Trump speak again.

Only after promising the mob they’d get to hear Trump did Jones’ handlers attempt to get sanction to go to the East side of the building by promising to de-escalate the riot that they had intentionally led more people to. As the government interprets the video that Shroyer himself provided, when Jones’ bodyguard offered to help de-escalate, the cop pointed northeast, which happens to be where Alexander had a permit and a stage already set up, at the “Lot 8” that Alexander claims they weren’t permitted to use.

INDIVIDUAL: I’m with [Jones], man. I’m telling you right now, he just tried to deescalate this stuff. If we can talk to someone and get him up there, we can get them to back off.

OFFICER: Take it over to the east, the east front’s the problem now. *Pointing east.*

INDIVIDUAL: This is the problem? *Pointing east.*

OFFICER: East front is the problem now.

INDIVIDUAL: Ok, so we need to get him up there and tell people to …

OFFICER: The east front is the problem now.

INDIVIDUAL: Alright, is there a way that we can get him to a position …

OFFICER: Through the hole, through the hole that you guys breached right there *Pointing northeast away from the Capitol Building.*

INDIVIDUAL: We didn’t breach anything.

OFFICER: Well, the whole group that was with you guys.

INDIVIDUAL: We’re just trying to help.

OFFICER: Out through there, all the way out there, take him up there. *Pointing northeast, away from the Capitol Building.* [my emphasis]

That is, this cop specifically told Jones and his entourage, including Alexander, to go to the area where Alexander had a permit (albeit for dozens, not thousands, of people). Instead of going in that direction, they instead circled around close to the Capitol, stepping over barricades and an “Area Closed” sign.

As the defendant and his group curved around the Capitol Building, the body-camera individual stated, “Here’s an opening right here.” The defendant and his group then walked toward where the body-camera individual pointed, passing downed and moved temporary barricades and stepping over at least one fallen sign that appeared to read “Area Closed,” as seen below circled in red.

When Jones’ bodyguard again asked for sanction to trespass in the area where they didn’t have a permit, the cops walked away.

The body-camera individual continued to yell that [Jones] could deescalate the situation, begging them to let Person One speak to the crowd. The two officers speaking then walked away and out of sight. The body-camera individual exhorted, “Nah, that’s not good, dude. That’s not good. That’s fucked. That’s fucked. No way. No fucking way. No way.”

After being told to pull the crowd away towards where Alexander had a permit, but instead deciding to go speak where he didn’t, Jones’ bodyguard acknowledged they might get in trouble for doing so.

The body-camera individual then walked back toward the defendant’s group and asked, “Just get him up there? Hey, Tim, just get him up there? Just do it? But we know we might catch a bang or two.”

And then, after the entourage joined former Jones’ staffer Joe Biggs and the advance guard of the Oath Keepers at the top of the East steps, Jones and Shroyer — still with Alexander present — called for revolution.

Once the defendant and others nearly reached the top, he began to use his megaphone to lead the large crowd in various chants, including “USA!” and “1776!”—again, a reference to revolution.

While, before Jones lured more mobs to the East side of the building, he did call people to stand down, once he got to the East steps, he further riled the crowd. As the government notes sardonically, calling for revolution “does not qualify as deescalation.”

Even assuming the defendant’s argument is true and the defendant received permission to go to the Capitol steps for the limited purpose of deescalating the situation, the defendant did not even do that. Quite the opposite. Despite the defendant’s arguments today that “Shroyer did nothing but offer his assistance to calm the crowd and urge them to leave United States Capitol grounds,” Dkt. 8-1 at 14, the defendant himself said otherwise in an open-source video recorded on August 21, 2021: “From the minute we got on the Capitol, the Capitol area, you [referring to Person One] started telling people to stand down, and the second we got on there, you got up on stacks of chairs, you said, ‘We can’t do this, stand down, don’t go in.’ … And I’m silent during all of this” (emphasis added).11 Moreover, as seen in other videos and described above, the defendant forced his way to the top of Capitol Building’s east steps with Person One and others and led hundreds of other rioters in multiple “USA!” and “1776!” chants with his megaphone. Harkening to the last time Americans overthrew their government in a revolution while standing on the Capitol steps where elected representatives are certifying a Presidential Election you disagree with does not qualify as deescalation.

Had Ali Alexander and Alex Jones taken the crowd they had led to the riot, like Pied Pipers, to Demonstration Area 8 (per the permits that BuzzFeed liberated), which is roughly where the cops directed them to go, and which is where they had a stage and a sound system, they might have prevented, or at least mitigated, the breach of the East front.

Instead, Alexander’s entourage joined their militia allies on the East steps and incited revolution, just moments before some of those militia members forcibly opened a second breach into the Capitol.

Alexander’s real goal, in testifying to the committee (rather than pleading the Fifth, which would be the smart thing to do) may be to learn what the Committee knows, while pretending that his cooperation — which has taken two months, not two weeks — is voluntary, not legally mandated.

In closing, I want to reiterate my posture of compliance. Over the past few weeks, I have spent more than 100 hours personally searching through my archives looking for relevant and responsive documentation to this committee’s requests. I’ve probably spent another 100 hours preparing to answer your questions. I have hired attorneys and computer consultants to be as responsive as possible and provide as much as I could find within the short amount of time I had to produce documents.

I did all of this despite not being accused of a crime. I did all of this despite being a private citizen with Constitutional rights protecting me from unreasonable searches and seizures and without a warrant entitling anyone to the documents I’ve voluntarily provided. It’s prevented me from working. It’s prevented me from sleeping, at times. It’s been extremely difficult and burdensome.

But I am voluntarily here to do the patriotic thing.

If this committee thinks of anything I haven’t turned over to which you believe I may have access, I ask you please to let me know and help refresh my memory. [bold my emphasis, italics Alexander’s emphasis]

When Stone tried to avoid telling the truth to Adam Schiff four years ago, when he actually hadn’t yet received a subpoena, it still led to his prosecution for multiple false statements. Here, Alexander is simply pretending he hasn’t been subpoenaed to appear.

Alexander will be represented today by, among others, Paul Kamenar, the lawyer who — after Roger Stone learned that his former aide had provided damaging information to the FBI — appealed Andrew Miller’s subpoena to testify to Mueller’s grand jury to the DC Circuit, thereby stalling until after the Mueller Report was done. Immediately after the trial was done, Stone hired Kamenar, presumably to learn what Miller had said in subsequent FBI interviews.

That raises real questions about whether Alexander is repeating Stone’s colossally stupid approach to the Russian investigation for his own benefit, or for Stone’s.

Adventures in Cut-and-Paste: John Durham says, “no specific client” is the same as, “not doing this for any client”

/37 Comments/in , /by

John Durham’s team has responded to Michael Sussmann’s request for a May trial date with a bunch of mostly nonsense.

AUSA Andrew DeFilippis does the following:

  • Blows off Susssmann’s observation that Durham promises to be ready for Igor Danchenko’s EDVA trial, which will involve far more complex classification issues, in April, even while saying classified discovery is what requires a later trial date in this case.
  • Does not deny Durham only belatedly provided Brady, while accusing Sussmann of “cherry-picking excerpts,” when Durham is the one providing excerpts.
  • Complains that Sussmann doesn’t note “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,” which seems to suggest that like the one fragment already provided (which shows at least one sign of irregularity), Durham is claiming interview reports are more accurate than transcripts.
  • Complains that Sussmann didn’t mention a second potentially inadmissible hearsay document, written by someone else in the General Counsel’s office.
  • Accuses Sussmann of neglecting to mention a CIA report about a different meeting that Sussmann already discussed at length (indeed, Durham was the one withholding information on it when last it came up) — and which Durham admitted was based off notes that have been destroyed.
  • Mentions “three grand jury transcripts” but doesn’t describe any of them as Baker’s.
  • Invokes “serious national security equities” in a case that criminalizes reporting a cybersecurity concern.

To look on Durham’s case in the best light: After Baker reviewed notes that others took, he came to remember that Sussmann affirmatively said he was not representing a client at the meeting (though Durham doesn’t claim to have the specific words Sussmann said, nor does he quote any in his discussion of the three other 302s).

And Durham does not deny that he’s slow-walking Brady material.

But I want to look at DeFillippis’ cut-and-paste again. In the response to Sussmann, DeFillippis suggests that this second hearsay document from someone in his office matches the first, Bill Priestap’s notes taken immediately after the meeting.

Those notes, like the notes cited in the Indictment taken by an FBI Assistant Director, reflect that the defendant told Baker he had “no specific client.” [my emphasis]

Except that’s not what the indictment says Priestap’s notes say. Those say:

Michael Sussman[n] — Atty: [Perkins Coie] — said not doing this for any client

  • Represents DNC, Clinton Foundation, etc.

“Not doing this for any client,” and “no specific client,” are undoubtedly close, but they are not the same thing, particularly given the great stake Durham and others have placed on whether Sussmann believed he was doing something important for cyber security, particularly given that neither mentions billing or representing. The differences suggest that even in these near-contemporaneous records taken by professional note-takers of what Baker said, either he himself was not consistent in the language he used to relay what happened, or the meaning his interlocutors took from it was not. Probably that’s because none of them accorded it the great import that Durham has, in part because they were all trying hard to deal with a very real cyberattack by Russia.

Maybe these quotes look more similar in context. Right now, Durham seems to be desperately trying to show that he has quotations of something.

But John Durham accused Michael Sussmann of cherry picking. And right now, his own cherry picking reaffirms that there are differences in the exact quotations that he claims are the same. He may, in fact, have reason to believe Sussmann lied. Sussmann may have lied. But the question is whether his evidence — even assuming he’ll find a way to get hearsay admitted — is strong enough to rebut Baker’s repeated contradictory statements.

John Durham Wants Permission to Delay Providing Evidence of How Weak His Michael Sussmann Case Is

/54 Comments/in , , , , /by

Donald Trump’s insurrectionists may be the only thing that can save John Durham’s indictment of Michael Sussmann.

That’s because Durham seems to think he’ll need to have two extra months over what Sussmann gauges should be necessary, and permission to delay production of Brady materials, to sustain the single false statement charge over Sussmann. As a Sussmann motion to set a trial date submitted yesterday revealed, his team and Durham’s are having a significant disagreement over when the trial should be scheduled. Durham wants four months from now to turn over discovery and wants to schedule the trial for July, whereas Sussmann thinks the trial should be held in May.

Given two exhibits Sussmann included with this motion (and other publicly available documents), it’s easy to see why Durham wants more time.

That’s because Jim Baker has said at least four different things that conflict with the alleged lie that Durham claims Sussmann told in a September 19, 2016 meeting with then-FBI General Counsel Baker:

On or about September 19, 2016, SUSSMANN met with the FBI General Counsel at FBI Headquarters in the District of Columbia to convey the Russian Bank-1 allegations. No one else attended the meeting. During the meeting, the following, in substance and part, occurred:

SUSSMANN stated falsely that he was not acting on behalf of any client, which led the FBI General Counsel to understand that SUSSMANN was conveying the allegations as a good citizen and not as an advocate for any client;

SUSSMANN stated that he had been approached by multiple cyber experts concerning the Russian Bank-1 allegations;

SUSSMANN provided the names of three cyber experts, but did not name or mention Tech Executive-1, the Clinton Campaign, or any other person or company referenced [in Durham’s indictment];

Durham has charged Sussmann with affirmatively lying about representing a client in that meeting.

In an earlier post, I argued that Durham probably hadn’t actually quoted what transpired in this meeting because his sources (meaning Baker, Bill Priestap’s hearsay notes of Baker’s account of the meeting, and some CIA personnel Sussmann met at a later meeting) offered different versions of what Sussmann actually said.

It’s quite possible that Durham has presented these allegations using such squishy language because what little evidence he has doesn’t actually agree on the claimed lies. That is, it may be that Baker believes Sussmann simply didn’t bother explaining which client he was working for, but Bill Priestap, the next in line in a game of telephone, differently understood from Baker’s report that Sussmann affirmatively failed to provide Baker information that (Priestap’s own notes prove) the FBI already had anyway, that he was working with Hillary Clinton.

But it’s far worse than that.

Jim Baker doesn’t agree with Jim Baker about what happened in the meeting. Baker has provided at least four different versions of his understanding of why Sussmann shared the Alfa Bank information with him (I’ve got longer excerpts below). At an October 3, 2018 interview with the Oversight Committee (where Baker brought it up), he said, “I don’t recall [Sussmann] saying that,” he worked for the DNC. At an October 10, 2018 interview with the Oversight Committee, he told Jim Jordan he didn’t “remember [Sussmann] saying that he was acting on behalf of a particular client.” In a July 15, 2019 interview with DOJ IG, Baker explained that Sussmann said their meeting “related to strange interactions that some number of people that were his clients, who were, he described as I recall it, sort of cyber-security experts, had found about some strange connection between some part of Donald Trump’s organizations and Alfa Bank.” In a June 2020 interview with Durham’s team (which as a 302 may be less reliable than the other sources), Baker said, “it did not seem like Sussmann was representing a client. Baker repeated his earlier assertion that he did not know Sussmann was representing the DNC at the time and Sussmann did not advise him of that fact at this particular meeting.” Presumably, Baker testified to the grand jury, too, but that interview would have been after all of these earlier versions. In none of the publicly available versions of Baker’s story does Sussmann affirmatively say he was not representing the DNC or any other client, and in one case — the DOJ IG interview — Baker remembered Sussmann commenting that he had a client; and that version (which Sussmann wouldn’t have had access to before getting it in discovery) matches Sussmann’s public story.

As Sussmann noted in his filing, Durham dumped a whole bunch of discovery on him shortly after the indictment, but it has taken over two months to turn over the conflicting evidence that goes to the core of the alleged false statements.

While the Special Counsel has produced significant discovery since Mr. Sussmann’s Indictment, the Special Counsel has delayed in producing key evidence, which the Special Counsel was required to timely disclose under Brady v. Maryland, 373 U.S. 83 (1963). Indeed, it was only last week—nearly two and a half months after Mr. Sussmann’s indictment, and in the face of persistent demands by Mr. Sussmann’s counsel—that the Special Counsel for the first time disclosed some (but not all) of Mr. Baker’s statements about the September 19, 2016 meeting.1

[snip]

1 Moreover, significant portions of the statements that were disclosed were redacted, an issue which defense counsel has raised with the Special Counsel.

Durham seems intent on similar delays in producing evidence undermining his case. Besides the two month date discrepancy, there are a few subtle but significant differences in their proposed schedules. In the proposed order scheduling order Sussmann has submitted, Durham would be, “under a continuing and ongoing obligation to provide defense counsel any favorable or exculpatory information (Brady), whether or not admissible in evidence, as soon as reasonably possible.” [my emphasis] Durham’s proposed version takes out the words, “as soon as reasonably possible.” Durham, of course, has already violated that part of Sussmann’s proposed scheduling order by sitting on multiple pieces of proof that have been in his and DOJ’s possession for over a year that undermine the claim Sussmann lied.

Durham may suspect the Brady discovery will make this indictment unsustainable. Durham’s more extended schedule would give Sussmann just two weeks after the final deadline for Brady discovery, from March 25 to April 8, to file the motion to dismiss he has already said he’d file. Sussmann’s more condensed schedule nevertheless gives himself three weeks, from January 28 to February 18, to incorporate classified Brady discovery into his motion to dismiss, and over a month, from January 14 to February 18, to incorporate unclassified Brady discovery.

From the start, I noted that this indictment really isn’t about the alleged false statement. Rather, Durham clearly wants to wrap this up into a grand Conspiracy to Defraud the US charge, incorporating Rodney Joffe, the researchers, Fusion GPS, and maybe Christopher Steele.

It’s not just that Durham is working on a theory that Sussmann deliberately dealt garbage to the FBI (which GOP sources also did on the Clinton Foundation) while trying to hide that fact. It’s that data originally sourced from the government was used in doing that research.

It’s actually the kind of argument that DOJ prosecutors typically succeed with. Except it’s all premised on proving that Sussman was trying to hide all this in his meeting with Baker. Even if the evidence surrounding the meeting weren’t so flimsy, this is another degree of motive that Durham is straining mightily to make.

Durham needs Sussmann to have lied, because a deliberate attempt to obscure the rest is necessary for his “storyline.” His evidence that Sussmann lied — much less, deliberately — is shoddy. But if he can’t get that, then his hopes for a larger “narrative” collapse.

So one thing Durham is likely trying to do with his delayed schedule is to buy time to try to make that claim stick. There are already several details that have been made public that show Durham will struggle to make this claim. Durham left out exculpatory details about the researchers in his indictment. The Federalist obtained — but downplayed — evidence that the researchers were not (as Durham insinuated in his indictment) involved with Fusion GPS.

Further, unlike Joffe, who worked hand-in-hand with Sussmann, according to Fusion GPS employee Laura Seago, who had worked on the Alfa project, she was not aware of anyone at Fusion GPS communicating with either [David] Dagon or [Manos] Antonakakis. And while she had heard Dagon’s name before, Seago first came across Antonakakis’s name in a newspaper article.

Antonakakis has not had any contact with Sussman, Marc Elias, or Fusion GPS, his lawyer Mark Schamel told The Federalist. “In this case,” Schamel added, “he reviewed a narrative presented to him by a well-known and respected researcher and provided his feedback, as he does for more than 100 unpublished research articles he receives every year.” Attorneys representing Lorenzen and Dagon did not return requests for comment.

Durham already confessed that he had no evidence Sussmann was working directly with the Hillary campaign on this. Most importantly, all the researchers believed and still believe that the Alfa Bank DNS data showed a real anomaly, and they first discovered it in a legitimate attempt to identify further attempts Russia made to tamper in the 2016 election. If that case were made to the jury, then Sussmann will be able to explain why Baker didn’t apparently think it all that important to ask who Sussmann was representing: because it was an alarming anomaly, no matter who brought it to the FBI.

Still, Durham is likely to get the time he wants. The backlog of trials for incarcerated pre-trial defendants in DC (including 70 or so January 6 defendants) will more likely dictate the trial date for Michael Sussmann than the substance of the dispute between the two of them.

Update: I should have also noted that Beryl Howell’s order tolling Speedy Trial because of COVID protocols will give Durham a way to get out of the 70 day Speedy Trial rule.

October 3, 2018 Oversight/HJC Interview

Mr. Baker. He told — he said that there had been — I’m not sure exactly how they originally learned about that information, but what he told me was that there were cyber — Mr. Meadows. I mean, is he a normal intel operative? How would he have come by this? Mr. Baker. He told me that he had cyber experts that had obtained some information that they thought they should get into the hands of the FBI.

[snip]

[Shen] Okay. So when Mr. Sussman came to you to provide some evidence, you were not specifically aware that he was representing the DNC or the Hillary Clinton campaign at the time? A I don’t recall, I don’t recall him specifically saying that at that time.

[snip]

Q Okay. So I guess it is just my interpretation, but I believe last round it was somewhat implied that if he did have an association to the Democratic National Committee and the Hillary Clinton campaign that that might lead someone to believe that something improper was done. And I wonder if you could just explain to me, you know, why your view is that it was not improper because, just the mere notion that someone who is a Democrat or Republican, you know, comes to you with information, should that information somehow be discounted or considered less credible because of, you know, partisan affiliation? A Well, the FBI is responsible for protecting everybody in this country. Period, full stop. And we do that, without regard to who they are or what their political background is or anything else. If they believe they have evidence of a crime or believe they have been a victim of a crime, we will do what we can within our lawful authorities to protect them. And so when a citizen comes with evidence, we accept it. That is my, just general understanding over many, many years. We, the Bureau, we, the Department of Justice. And so that is how I construed what Michael was doing. It was, he believed he had evidence, again, either of a crime or of a national security threat, and he believed it was appropriate to provide it to us. When he did, I didn’t think there was anything improper about it whatsoever.

[snip]

Mr. Jordan. Okay. Do you know how Sussman got this material? Mr. Baker. What I recall is he told me that there were some cyber experts that somehow would come across this information and brought it somehow to his attention, and that they were alarmed at what it showed, and that, therefore, they wanted to bring it to the attention of the FBI. Mr. Jordan. Did he — Mr. Baker. They and Sussman. Mr. Jordan. They. Any names? Mr. Baker. I don’t think I ever found out who these experts were. Mr. Jordan. Did he indicate that he got this — may have got some of this information from the Democratic National Committee? Mr. Baker. I don’t recall him saying that. Mr. Jordan. Did you know when he was giving this information did you know he was working for — that he did extensive work for the DNC and the Clinton campaign? Mr. Baker. I am not sure what I knew about that at the time. I remember hearing about him in connection — when the bureau was trying to deal with the hack and investigating the hack, that my recollection is that Michael was involved in that process to some degree. I didn’t interact with him on that, so I am not sure if I knew that before this meeting or after, but I don’t recall him specifically saying —

October 18, 2018 Oversight/HJC Interview

Mr. Baker. To the best of my recollection, he told me that it had been obtained by some type of cyber experts, and I don’t know who — how they started their inquiry into this. But that is what he told me, that some certain cyber experts had obtained information about some anomalous looking thing having, to my knowledge, nothing to do with the dossier. But anyway — Mr. Jordan. Did he mention — did Fusion GPS play a role in him getting information that he subsequently gave to you? Mr. Baker. I don’t remember him mentioning Fusion GPS in connection with this material. Mr. Jordan. Did he mention at all when he was talking to you? Mr. Baker. Not to my recollection, no. Mr. Jordan. What about Glenn Simpson? Mr. Baker. Not on this thing, no. Mr. Jordan. How about Christopher Steele? Mr. Baker. No. Mr. Jordan. Okay. Did you meet with anyone else at Perkins Coie relative to this issue, Russia investigation issue?

[snip]

Mr. Baker. Yes, sir. And there was some effort — there was some belief that this was a — being conducted in a way so as to make it a covert communications channel. Mr. Jordan. Okay. And my first question would be how’d you get this? Did you ask that question? Mr. Baker. I did ask that question at a high level, yes. And he explained that he had obtained it from, again, cyber experts who had — who had obtained the information, and he said that the details of it would explain themselves. That’s my recollection. Mr. Jordan. And was he representing a client when he brought this information to you? Or just out of the goodness of his heart, someone gave it to him and he brought it to you? Mr. Baker. In that first interaction, I don’t remember him specifically saying that he was acting on behalf of a particular client. Mr. Jordan. Did you know at the time that he was representing the DNC in the Clinton campaign? Mr. Baker. I can’t remember. I have learned that at some point. I don’t — as I think I said last time, I don’t specifically remember when I learned that. So I don’t know that I had that in my head when he showed up in my office. I just can’t remember. Mr. Jordan. Did you learn that shortly thereafter if you didn’t know it at the time? Mr. Baker. I wish I could give you a better answer. I just don’t remember. Mr. Jordan. I mean, I just find that unbelievable that the guy representing the Clinton campaign, the Democrat National Committee, shows up with information that says we got this, and you don’t ask where he got it, you didn’t know how he got it. But he got it from some, you know, quote, expert. Mr. Baker. Well, if I could respond to that. Mr. Jordan. Sure. Mr. Baker. I mean, so I was uncomfortable with being in the position of having too much factual information conveyed to me, because I’m not an agent. And so I wanted to get this — get the information into the hands of the agents as quickly as possible and let them deal with it. If they wanted to go interview Sussmann and ask him all those kind of questions, fine with me. Mr. Jordan. Did that happen? Mr. Baker. I don’t know that. But I — I mean, I — well, A, I did hand it off to the — to the investigators. Mr. Jordan. I think you told us you handed it off to Mr. Strzok and Mr. Priestap? Mr. Baker. My recollection is Mr. Priestap. Mr. Jordan. Okay. And you don’t know if they followed up or not? Mr. Baker. Bill Priestap told me that they did follow up extensively.

July 15, 2019 OIG interview

Did you generally have a sense that they represented, that their political law practice had a Democratic clientele?

MR. BAKER: Maybe I should have, but I didn’t really understand it at the time.

MS. TERZAKEN: Is that right?

MR. BAKER: I did not, no.

MS. TERZAKEN: Okay.

MR. BAKER: I came to understand, you know, that, that Perkins-Coie was playing a role with respect to the DNC hack. But the, the extensiveness of their contacts with the Democratic Party, I did not, at the time, have an understanding about, that I recall.

[snip]

MS. TERZAKEN: Okay. With Michael Sussman, your conversations with him before the election, if you could briefly describe how the conversations came about, what information he provided to you.

MR. BAKER: So, I’ll go into the Sussman stuff, yeah, okay. So he came in, he, he, all of this is gone over in the transcript with the committee, so I won’t, I’ll try to just summarize briefly. My basic recollection is, in some way, shape, or form, Michael reached out, and wanted to come in and meet with me. And so we scheduled that. So Michael came in and met with me. And he had some amount of information, physical evidence, printed out, and also a thumb drive or two, that he said related to strange interactions that some number of people that were his clients, who were, he described as I recall it, sort of cyber-security experts, had found about some strange connection between some part of Donald Trump’s organizations and Alfa Bank, which was described as being controlled by the Kremlin. And that it appeared to be the case that this was a, it was, it, it was surmised that this was a back-channel, what do you call it, a back-channel of electronic communications. That, that somehow the Trump organization and Alfa Bank were using this, what looked like a, basically a surreptitious channel to communicate with each other.

June 2020 Durham interview (302)

Sussmann arrived at Baker’s office alone and gave Baker some electronic media and some paper approximately one inch thick. He and Baker met alone in Baker’s office, with no one else present. Sussmann advised Baker that some cyber security researchers had discovered the information and brought it to Sussmann’s attention. The information purported to describe a digital relationship between the Trump organization and Alfa Bank, and Sussmann gave Baker a technical description of that relationship. Sussmann also told Baker he thought it was important for the FBI to have the information. Sussmann also told Baker that the press had the information. Baker said that Sussmann did not specify that he was representing a client regarding the matter, nor did Baker ask him if he was representing a client. Baker said it did not seem like Sussmann was representing a client. Baker repeated his earlier assertion that he did not know Sussmann was representing the DNC at the time and Sussmann did not advise him of that fact at this particular meeting. Baker also said he did not know Sussmann’s firm, Perkins Coie, represented the Hillary Clinton campaign. Baker does not recall Sussmann advising him of the rationale for the cybersecurity researchers bringing the information to him. Additionally, Baker recalls Sussmann telling him that he believed the information was serious and credible. Baker said the meeting with Sussmann lasted approximately 15-20 minutes and he described it as short and cordial. He did not feel there was anything inappropriate about Sussmann meeting with him and providing the information to him.

[snip]

Baker said he could not recall telling Priestap at that time that Sussmann represented the DNC and the Clinton Foundation, but he (Baker) may have known it at the time.

 

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

/34 Comments/in , , , , /by

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Publisher of the Steele Dossier, Ben Smith, Reports that the Hunter Biden Laptop Was Just a Political Dirty Trick

/44 Comments/in , , , /by

The recent Igor Danchenko indictment and overly credulous reporting on it have created a big new push for former BuzzFeed editor Ben Smith to reflect on his role in the dissemination of the Steele dossier.

In a Sunday column on mis- and disinformation, however, he makes no mention of it.

Instead, his column questions the inclusion of the Hunter Biden laptop story in a media executive seminar on, “help[ing] newsroom leaders fight misinformation and media manipulation.” Smith claims that treatment of the laptop story is, in fact, proof that the term “media manipulation” means  “any attempt to shape news coverage by people whose politics you dislike.”

A couple of them, though, told me they were puzzled by the reading package for the first session.

It consisted of a Harvard case study, which a participant shared with me, examining the coverage of Hunter Biden’s lost laptop in the final days of the 2020 campaign. The story had been pushed by aides and allies of then-President Donald J. Trump who tried to persuade journalists that the hard drive’s contents would reveal the corruption of the father.

The news media’s handling of that narrative provides “an instructive case study on the power of social media and news organizations to mitigate media manipulation campaigns,” according to the Shorenstein Center summary.

The Hunter Biden laptop saga sure is instructive about something. As you may recall, panicked Trump allies frantically dumped its contents onto the internet and into reporters’ inboxes, a trove that apparently included embarrassing images and emails purportedly from the candidate’s son showing that he had tried to trade on the family name. The big social media platforms, primed for a repeat of the WikiLeaks 2016 election shenanigans, reacted forcefully: Twitter blocked links to a New York Post story that tied Joe Biden to the emails without strong evidence (though Twitter quickly reversed that decision) and Facebook limited the spread of the Post story under its own “misinformation” policy.

But as it now appears, the story about the laptop was an old-fashioned, politically motivated dirty tricks campaign, and describing it with the word “misinformation” doesn’t add much to our understanding of what happened. While some of the emails purportedly on the laptop have since been called genuine by at least one recipient, the younger Mr. Biden has said he doesn’t know if the laptop in question was his.

And the “media manipulation campaign” was a threadbare, 11th-hour effort to produce a late-campaign scandal, an attempt at an October Surprise that has been part of nearly every presidential campaign I’ve covered.

The Wall Street Journal, as I reported at the time, looked hard at the story. Unable to prove that Joe Biden had tried, as vice president, to change U.S. policy to enrich a family member, The Journal refused to tell it the way the Trump aides wanted, leaving that spin to the right-wing tabloids. What remained was a murky situation that is hard to call “misinformation,” even if some journalists and academics like the clarity of that label. The Journal’s role was, in fact, a pretty standard journalistic exercise, a blend of fact-finding and the sort of news judgment that has fallen a bit out of favor as journalists have found themselves chasing social media.

While some academics use the term carefully, “misinformation” in the case of the lost laptop was more or less synonymous with “material passed along by Trump aides.” And in that context, the phrase “media manipulation” refers to any attempt to shape news coverage by people whose politics you dislike.

Unless Smith considers the two details he cites — some researchers have confirmed that some of the emails are authentic, yet Hunter Biden doesn’t claim to know whether the laptop in question was his — to be proof one way or another that this was a “politically motivated dirty tricks campaign,” he cites no evidence for his conclusion.

Smith doesn’t mention any of the reasons why there was and remains good reason to suspect the laptop — the provenance of which even Glenn Greenwald once proclaimed to be “bizarre at best” — was more than that. From the time President Trump first started extorting an investigation into the Bidens from Ukraine through at least January 2020, Russia’s military intelligence agency, GRU was found hacking Burisma, the company with which Hunter had a sketchy consulting relationship that was the initial hook for the laptop stories. Rudy Giuliani not only played a central role in the brokering of the laptop story, but reportedly had been sitting on a copy of the files for some time. Rudy, of course, had played a key role in Trump’s attempt to extort news of a Biden investigation and even during the impeachment inquiry, in spite of warnings from the intelligence community, traveled to Ukraine to meet with Andrii Derkach, who was subsequently sanctioned as a Russian agent. According to Ben Smith’s employer, Derkach’s efforts to deal “misleading information” to Rudy as part of a 2020 election operation are under investigation by EDNY; a parallel investigation into Rudy for serving as an unregistered agent of Ukrainian interests in events that were part of the impeachment inquiry remains ongoing at SDNY. An intelligence report related to the second story hung on the laptop, regarding Hunter’s ties to China, was disclosed to have been attributed to an intelligence analyst whose identity was entirely fabricated, down to his artificially generated face. And the IC’s report on efforts to interfere in the 2020 election includes one conclusion that sounds suspiciously similar to the efforts that led to the laptop story.

A key element of Moscow’s strategy this election cycle was its use of people linked to Russian intelligence to launder influence narratives–including misleading or unsubstantiated allegations against President Biden–through US media organizations, US officials, and prominent US individuals, some of whom were close to former President Trump and his administration.

If the Hunter Biden laptop story was just a political dirty trick, then it was one that exactly paralleled well-substantiated efforts involving Russian intelligence agents.

We now know, thanks to the investigation into Project Veritas, that the “sister” media package right wing propaganda outlets were pitching, the dissemination of a diary from Hunter’s half-sister in the very same weeks leading up to the election, similarly features a sketchy origin story that — SDNY has shown probable cause to believe — actually serves to hide the theft of the underlying diary. While SDNY has not yet charged anyone much less proven the case, it claims that the story about how reporters came to obtain such a juicy campaign prop was, itself, misinformation hiding theft. That’s another detail that Smith doesn’t mention in his piece.

Even if the similarities between Smith’s “old-fashioned, politically motivated dirty tricks campaign” and the acknowledged interference attempt by Russian agents are mere coinkydink, it nevertheless is the case that the Hunter Biden laptop package was an attempt at media manipulation, part of the reason it was presented to the seminar.

That’s because — again, as even Glenn Greenwald acknowledged — the presumptively authentic emails offered as the dangle in the laptop package provided, “no proof that Biden followed through on any of Hunter’s promises to Burisma.” By offering “authentic” emails and derogatory pictures just before the election, right wing operatives attempted to make a story that had long been reported (and key parts of it debunked by experts testifying under oath as part of the first impeachment) go viral just before the election not by offering any proof of the key allegations, but by waving something “authentic” around that could substitute for real proof.

It briefly worked, too, as high profile journalists disseminated the most inflammatory details in the story — effectively delivering the announcement of a criminal investigation pertaining to Ukraine that Trump demanded from Volodymyr Zelenskyy — and only after that started identifying really problematic parts of the story.

This entire episode was an effort to disseminate something “authentic” that nevertheless lacked proof of the underlying allegations as a way to lead people to believe those allegations. Classic media manipulation, and it nearly succeeded.

And Ben Smith, the man who published a dossier full of unproven allegations that — Republicans in Congress now believe — injected Russian disinformation into what otherwise might have been just an “old-fashioned, politically motivated dirty tricks campaign,” a dossier that (like Hunter Biden’s laptop) long stood as the proxy understanding for a criminal investigation into dramatically different facts, dismisses the possibility that it was disinformation blithely, presenting no real evidence for or against.

It is undoubtedly the case that there remain real questions about the Hunter Biden laptop package, questions that may get renewed attention given the new focus on the Ashley Biden diary package. Maybe one day, Ben Smith will be able to state, as fact, that it was just an, “old-fashioned, politically motivated dirty tricks campaign;” or maybe EDNY will uncover the real provenance of those “authentic” files all packaged up and handed to a guy who made no secret of his willingness to accept and disseminate Russian disinformation.

But at a time when he is actively refusing to reflect on his own actions in disseminating an “old-fashioned, politically motivated dirty tricks campaign” that seems to have been exploited as an easy vehicle for hostile disinformation, Ben Smith might want to be a little more cautious about assuming those lines are so easy to distinguish.

Hillary’s Candidate Briefing Was More Contentious than Mike Flynn’s

/17 Comments/in , /by

The DOJ IG Report on Carter Page revealed that FBI Agent Joe Pientka was selected as the FBI counterintelligence briefer for both Presidential candidates in 2016 in part to give him familiarity with Mike Flynn, shortly after the former DIA head became one subject in the UNSUB investigation into how the Trump campaign got advance notice of the Russian election operation.

The FBI selected SSA 1, the supervisor for the Crossfire Hurricane investigation, to provide the FBI security briefings for Trump and Clinton. 478 SSA 1 told us that one of the reasons for his selection was that ODNI had informed the FBI that one of the two Trump campaign advisors attending the August 17 briefing would be Flynn. He further stated that the briefing provided him “the opportunity to gain assessment and possibly have some level of familiarity with [Flynn]. So, should we get to the point where we need to do a subject interview … I would have that to fall back on.”

Since then, Republicans have never stopped wailing about how badly Flynn was treated in this briefing — never mentioning that Flynn was secretly working for Turkey when he sat in on this briefing, meaning FBI should have scrutinized him more closely than they did.

The CIA just released the latest chapter of its running history of Presidential briefing, the one covering Trump. (h/t Micah Zenko)

It provides accounts of the candidate briefings given to both Trump and Hillary. Its account of the first Trump one makes no specific mention of Pientka’s investigative role. Nor does it mention that at the time Flynn was asking “tactical” questions about the Middle East, he was on Turkey’s payroll.

Trump was accompanied by two advisors, New Jersey Governor Chris Christie and Lt. Gen. (ret.) Michael Flynn. The briefing team, led by Gistaro, included six of the substantive experts and a colleague from the ODNI Transition Team who was available to record and take follow-up action related to any questions that might arise and not be answered on the spot.

Gistaro led off with a substantive overview of the highest priority issues the IC was following, then turned to his colleagues to elaborate on developments in their areas of specialization. They briefed on terrorism, cyber security, counterterrorism, ISIS, the civil war in Syria, the security situation in Iraq, and the Iranian nuclear program. Gistaro recalled that he was careful to watch the clock and intervene as necessary so that the briefers each had an opportunity to say their piece but did not run over their allotted time. Nevertheless, the briefing went on for two and a half hours, longer than scheduled, and even then could not cover all the planned subjects. It was agreed that a second session was necessary.

In this first session, Trump was primarily a listener. He did ask some “big picture” questions, reflecting the fact that the material was new to him. Because several of the issues related to matters Flynn had dealt with in the military, he was the most active questioner. In Gistaro’s words, “He was on his home turf.” Most of Flynn’s questions were on the Middle East and were quite tactical. However, a few of his questions, especially on Iran, raised policy issues and had to be turned aside for referral, if he wished, to the national security advisor. Trump’s verdict on the session was a “thumbs-up” to IC officers as he departed. Christie later described the briefing as outstanding.

Here’s the FBI summary of that briefing, which focused primarily on questions about Russia, not Turkey, which might have been really useful once FBI discovered that Flynn was secretly on their payroll.

The history separates its account of the second briefing from claims Trump made about the briefing days later in a town hall by several pages.

Trump received a second preelection briefing roughly two weeks later, on 2 September, also at the FBI office in Manhattan. Again, Trump was accompanied by Christie and Flynn. This one-and-a-half-hour briefing rounded out the agreed list of topics, focusing on cyber security, Russia, China, and North Korea. On this occasion, Trump had numerous questions, some of which raised policy issues. Most, however, reflected his interest in financial and trade matters and in press reports about Russia’s reported interference in the US election campaign.

At the briefing of 2 September, Trump told the briefers that he valued the first session in August and their expertise. They were surprised when he assured them that “the nasty things he was saying” publicly about the Intelligence Community “don’t apply to you.” Afterward, Flynn complimented the briefers in remarks to the press.

[snip]

[O]fficials were anxious to see what issues related to intelligence would arise during the debates in 2016, including whether the candidates would make direct or indirect reference to information they had received in their preelection briefings. This anxiousness was reinforced before the formal candidate debates during a quasi debate on 7 September, when Trump and Clinton were questioned, separately, by NBC newsman Matt Lauer. On this occasion, Trump made reference to intelligence briefers’ “body language” in suggesting that they were “not happy” with policies of the Obama administration. These comments caused outrage in the following days among news commentators and former intelligence officers and prompted reporters to dig for information about what had transpired during Trump’s briefings.

Thus, unlike with some other instances, this account doesn’t make clear whether Trump was lying outright about his public comment. Notably, too, this account makes no mention of Flynn’s own role in lying about the briefing, which seems remarkable given the comment about his compliment to the briefers.

Given how the history soft-pedals these issues, it makes the description of the single Hillary briefing all the more jarring.

Clinton, although feeling under the weather and unavoidably delayed 20 minutes, joined the briefers in a small secure room (SCIF, in intelligence argot) at the FBI field office in White Plains, New York, on 27 August. Given all that Clinton was going through related to her handling of personal emails during the campaign, Gistaro regretted that the first question the security officer asked Clinton as she approached the room was whether she had any cell phones with her. The Secretary very professionally assured the questioner that she had left her cell phones at home

Hillary, of course, had been cleared of misconduct before that August 27 briefing, and was well-versed in the use of SCIFs. Yet she was treated by the security officer as a suspect.

Whereas Mike Flynn, who was quite literally working for a frenemy government during both of these classified briefings, and under investigation for suspect ties to Russia, was nevertheless freely served up answers to all the tactical questions he posed.

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

/61 Comments/in , /by

CJR was kind enough to invite me on to discuss media accountability and the Steele dossier with Erik Wemple last week.

On the show, I made the argument that it’s not enough to identify the things that didn’t, but should have, shown up in the dossier: like George Papadopoulos getting advance warning of the Russian operation not far from Christopher Steele’s office, or a dirt-for-sanctions-relief meeting in Trump Tower attended by a client of Fusion GPS, or a deputy for Steele client Oleg Deripaska, Konstantin Kilimnik, trading Trump’s campaign manager $19 million in debt relief to obtain the campaign’s strategy.

Given the way that, on July 30, 2016, Deripaska used Steele (via his lawyers) to make Manafort more vulnerable just days before, on August 2, 2016, Deripaska used that vulnerability to carry out a key step in the election operation, it is reasonable to consider whether any disinformation in the dossier became a key part of the Russian operation. That makes it important to look at the stories that did get told in it, to understand how they related to other aspects of the operation.

In the CJR podcast, Erik Wemple was — as he has been in the past — skeptical.

Wheeler: If, in fact, the dossier is full of disinformation, which is what every Republican in Congress believes and what I think is largely the case, then the question is not, what was the access. The question was, why did Oleg Deripaska learn about it, as the DOJ IG Report suggests happened, why did he learn about it before the second report? Why did two Russian intelligence people learn about it before the second report, and why did the stories that get told get told? So, yes, there’s the absence of, you know, Papadopoulos in London, but the stories of Michael Cohen in Prague which are the, the, the most easily debunked, do, are near misses on things that were really happening in the Russian operation. Michael Cohen was in fact covering up stuff about Russia at the time — he was covering up the Trump Tower deal. Michael Cohen was also covering stuff having to do with sex at the time. You put those two together and you’ve got the Prague thing. That’s a pretty near miss.

Wemple: Is it though? The allegation in the dossier was that he was meeting with Kremlin representatives — as I recall — to —

Wheeler: And he called up the Kremlin and got Putin’s involvement in the Trump Tower deal.

Wemple: But he met in Prague to cover up or figure out how to pay hackers, if I recall the allegation.

Wheeler: Yeah yeah yeah. Yup.

Wemple: I don’t know. I don’t see it as being that close to what Michael Cohen actually did but we can —

Wheeler: Right, but do you deny that Michael Cohen was covering up stuff about Russia that involved, actually, the Kremlin?

Wemple: Well, it’s clear that he was involved in keeping quiet the Trump Tower —

Wheeler: Okay. Which involved the Kremlin. And involved a GRU officer.

Wemple: Unquestionably, no question.

Wheeler: Okay. So that’s my point. Russia knew that. Russia knew that when Trump made a statement in July of 2016 that he had no business in Russia — which by the way, Durham is reacting against; he’s trying to claim it was unreasonable for cybersecurity researchers to respond to that and say, that’s very alarming, which was very alarming. As soon as Trump made that comment, in July of 2016 (and he had made it a bunch of times before that), Russia knew that Michael Cohen and Donald Trump and a number of other people were lying, publicly, about this ridiculously lucrative deal that involved the Kremlin and involved a GRU officer. And so the Prague story is absolutely garbage. And that came from Olga Galkina, right?

Wemple: It did. Who’s a middle school friend of Danchenko

Wheeler: Right. She’s central to the Danchenko indictment. One of the things that Durham charges Danchenko with is trying to hide how obvious, how much Galkina knew about that. And he didn’t hide it at all. I think that allegation is completely, is completely easily debunked if you actually read the interview. But my point is that, in fact, Michael Cohen was covering up communications with the Kremlin and with a GRU officer. And Russia knew that. And if those Michael Cohen reports which, by January 2017, the FBI believed to be disinformation, so if those were disinformation, why did we get that form of disinformation, when in fact Michael Cohen — and if you read Danchenko, Galkina knew, right away, Michael Cohen’s name. She was ready for it, so those questions. If you want to talk about media accountability, those questions have to be asked as well.

The details of any disinformation in the dossier — the possibility that Russian intelligence deliberately planted false stories about secret communications Michael Cohen had with the Kremlin — are important because they may have served the overall Russian operation. In some cases, such as the claim that Carter Page was Paul Manafort’s purported go-between with Russia rather than Konstantin Kilimnik, might have provided cover. The claims that Russia had years old FSB intercepts of Hillary they planned to release as kompromat, rather than recently stolen emails from John Podesta, would similarly provide cover. In others, disinformation might have worked in the same way Oleg Deripaska’s double game did, increasing the vulnerability of Trump’s people even while making it more likely they’d do what Russia wanted.

I have argued in the past that the Trump Tower deal wasn’t important because it showed that Trump was pursuing a real estate deal while running for President. Rather, it was important to the success of the Russian operation because it gave Russia proof, before any hint of the Russian operation became public, that Donald Trump would be willing to work, in secret, with sanctioned banks and a GRU officer to make an impossibly lucrative real estate deal happen.

[T]here is a piece of the Cohen statement of the offense the significance of which hasn’t gotten sufficient attention. That’s the detail that Dmitry Peskov’s personal assistant took detailed notes from a 20-minute January 20, 2016 phone call with Cohen, which led to Putin’s office contacting Felix Sater the next day.

On or about January 16, 2016, COHEN emailed [Peskov]’s office again, said he was trying to reach another high-level Russian official, and asked for someone who spoke English to contact him.

On or about January 20, 2016 , COHEN received an email from the personal assistant to [Peskov] (“Assistant 1 “), stating that she had been trying to reach COHEN and requesting that he call her using a Moscow-based phone number she provided.

Shortly after receiving the email, COHEN called Assistant 1 and spoke to her for approximately 20 minutes. On that call, COHEN described his position at the Company and outlined the proposed Moscow Project, including the Russian development company with which the Company had partnered. COHEN requested assistance in moving the project forward, both in securing land to build the proposed tower and financing the construction. Assistant 1 asked detailed questions and took notes, stating that she would follow up with others in Russia.

The day after COHEN’s call with Assistant 1, [Sater] contacted him, asking for a call. Individual 2 wrote to COHEN, “It’s about [the President of Russia] they called today.”

Cohen had lied about this, claiming that he had emailed Peskov’s public comment line just once, but gotten no response.

This language is important not just because it shows that Cohen lied.  It’s important because of what Cohen would have said to Peskov’s assistant. And it’s important because a written record of what Cohen said got handed on to Putin’s office, if not Putin himself.

[snip]

[W]hen Cohen called Peskov’s assistant, he would have told her that he was speaking on behalf of Donald Trump, that Trump remained interested in a Trump Tower in Moscow (as he had been in 2013, the last time Putin had dangled a personal meeting with Trump), and that on Trump’s behalf Cohen was willing to discuss making a deal involving both a sanctioned bank (whichever one it was) and a former GRU officer.

The impossibly lucrative real estate deal was useful to the Russian operation because it ensured that, even before GRU hacked the DNC, Putin had collected receipts showing that Trump’s personal lawyer had secretly been in discussions about a deal brokered by a GRU officer and sanctioned banks for Trump’s benefit. Trump would want to (and in fact did) keep this fact from voters because it would have proven he was lying about having business interests in Russia. The attribution of the DNC hack to the GRU made Trump’s secret more inflammatory, because it meant Trump stood to benefit personally from the same people who hacked his opponent. Trump and Cohen couldn’t have known all that when Cohen called Peskov in January. But Russia did. Indeed, that may well have been the entire point.

The Cohen-in-Prague story includes outlines of Trump’s real secret: contact by Trump’s personal lawyer with the Kremlin and those who conducted the DNC hack. But the Cohen-in-Prague story displaced the key details of that secret, providing a place and personal details that would be even more damning, but also easier to debunk.

In fact, when Michael Cohen broke the law (by lying to Congress) to cover up this secret, when the Trump Organization withheld from Congress the most damning documents about it, when Trump told his most provable lie to Mueller about it, they (along with Felix Sater and others) used the Cohen-in-Prague story as an easy way to issue true denials while limiting admissions (and lying) about the extent of the Trump Tower deal. Here’s what I described, in August 2017, about the way Cohen used Prague denials to pre-empt his limited (and therefore false) admissions of his pursuit of the Trump Tower deal.

There are real, unanswered questions about the provenance of the document as leaked by BuzzFeed. Some of the circumstances surrounding its production — most notably its funders and their claimed goals, and Steele’s production of a final report, based off voluntarily provided information, for free — raise real questions about parts of the dossier. I think it quite likely some parts of the dossier, especially the last, most inflammatory report (which accuses Cohen of attending a meeting where payments from Trump to the hackers that targeted the Democrats were discussed), were disinformation fed by the Russians. I believe the Intelligence Community is almost certainly lying about what they knew about the dossier. I believe the Russians know precisely how the dossier got constructed (remember, a suspected source for it died in mysterious circumstances in December), and they expect the exposure of those details will discredit it.

So while I think there are truths in the dossier, I do think its current form includes rumor and even affirmative disinformation meant to discredit it.

With that said — and remembering all the time that shortly after this letter got written, documents were disclosed showing Cohen was involved in brokering a deal that Sater thought might get Trump elected — here’s my analysis of the document.

[Cohen’s letter to Congress] is pitched around the claim that HPSCI “included Mr. Cohen in its inquiry based solely upon certain sensational allegations contained” in the Steele dossier. “Absent those allegations,” the letter continues, “Mr. Cohen would not be involved in your investigation.” The idea — presented two weeks before disclosure of emails showing Cohen brokering a deal with Russians in early 2016 — is if Cohen can discredit the dossier, then he will have shown that there is no reason to investigate him or his role brokering deals with the Russians. Even the denial of any documents of interest is limited to the dossier: “We have not uncovered a single document that would in any way corroborate the Dossier’s allegations regarding Mr. Cohen, nor do we believe that any such document exists.”

With that, Cohen’s lawyers address the allegations in the dossier, one by one. As a result, the rebuttal reads kind of like this:

I Did Not Go to Prague I Did Not Go to Prague I Did Not Go to Prague I Did Not Go to Prague

Cohen literally denies that he ever traveled to Prague six times, as well as denying carefully worded, often quoted, versions of meeting with Russians in a European capital in 2016. Of course that formulation — He did not participate in meetings of any kind with Kremlin officials in Prague in August 2016 — stops well short of other potential ties to Russians. And two of his denials look very different given the emails disclosed two weeks later showing an attempt to broker a deal that Felix Sater thought might get Trump elected, including an email from him to one of the most trusted agents of the Kremlin.

Mr. Cohen is not aware of any “secret TRUMP campaign/Kremlin relationship.”

Mr. Cohen is not aware of any indirect communications between the “TRUMP team” and “trusted agents” of the Kremlin.

The Cohen-in-Prague story provided an easy way for Cohen to issue true denials. But it also magnified the risk of the secret — a secret Russia knew — they were keeping, because they committed crimes to keep the secret.

There can be little doubt that, if the Cohen-in-Prague story was deliberate disinformation, it was wildly successful. Indeed, most Trump supporters — including many of the people debunking the dossier full time — seemed to believe that if they could prove that Cohen never went to Prague, that by itself would amount to proof that Trump had no ties with Russia in 2016, a claim every bit as outlandish as the pee tape.

If the Cohen-in-Prague story was deliberate disinformation, it was spectacularly successful, both for obscuring the Trump Tower discussions and for creating an easily debunked stand-in for Trump’s real cooperation, distracting from Manafort’s role.

Years later, we now know there were reasons to think the Cohen-in-Prague story was deliberate disinformation from the start. A declassified DOJ IG footnote describes that, even before the Igor Danchenko interviews in January 2017, FBI had received intelligence suggesting that was the case.

In addition to the information in Steele’s Delta file documenting Steele’s frequent contacts with representatives for multiple Russian oligarchs, we identified reporting the Crossfire Hurricane team received from [redacted] indicating the potential for Russian disinformation influencing Steele’s election reporting. A January 12, 2017, report relayed information from [redacted] outlining an inaccuracy in a limited subset of Steele’s reporting about the activities of Michael Cohen. The [redacted] stated that it did not have high confidence in this subset of Steele’s reporting and assessed that the referenced subset was part of a Russian disinformation campaign to denigrate U.S. foreign relations. [italicized language declassified]

If it was disinformation, Danchenko’s source for it, his childhood friend Olga Galkina, seems to have been prepared. When Danchenko described the sourcing of the report, he explained that that Galkina was “almost immediately” familiar with Cohen when he asked.

[Danchenko] began his explanation of the Prague and Michael Cohen-related reports by stating that Christopher Steele had given him 4-5 names to research for the election-related tasking. He could only remember three of the names: Carter Page, Paul Manafort and Michael Cohen. When he talked to [Galkina] in the fall of 2016 — he believes it was a phone call — he rattled off these names and, out of them, he was surprised to hear that [Galkina] immediately [later [Danchenko] softened this to  “almost immediately”] recognized Cohen’s name.

[snip]

Danchenko believes he had 2, maybe even 3, conversations with [Galkina] on this topic later in October. Nothing on Prague and Cohen was collected during the [redacted] trip in [redacted]. The first conversation is the one during which he believes [Galkina] noted her recognition of Cohen’s name. The second conversation is the one in which she discussed Prague, the visit of Cohen plus three other individuals, and the meeting with the Russia side. There may have been a third conversation on the topic, but [Danchenko] could not recall exactly and said that they had also talked about “a private subject.”

Several details in the Danchenko indictment explain why Galkina might be prepared.

Charles Dolan, the PR Executive whom Danchenko introduced to Galkina that spring, had worked directly with Dmitry Peskov for years and remained in touch with Putin’s Press Secretary in conjunction with an event he was helping plan in October 2016. During the summer, Dolan recommended Galkina to Peskov for a job in the Presidential Administration.

[F]rom in or about 2006 through in or about 2014, the Russian Federation retained PR Executive-I and his then-employer to handle global public relations for the Russian government and a state-owned energy company. PR Executive-I served as a lead consultant during that project and frequently interacted with senior Russian Federation leadership whose names would later appear in the Company Reports, including the Press Secretary of the Russian Presidential Administration (“Russian Press Secretary-I”), the Deputy Press Secretary (“Russian Deputy Press Secretary-I”), and others in the Russian Presidential Press Department.

[snip]

In anticipation of the June 2016 Planning Trip to Moscow, PR Executive-I also communicated with Russian Press Secretary-I and Russian Deputy Press Secretary-I, both of whom worked in the Kremlin and, as noted above, also appeared in the Company Reports.

[snip]

Additionally, on or about July 13, 2016, Russian Sub-Source-I sent a message to a Russia-based associate and stated that PR Executive-I had written a letter to Russian Press Secretary-I in support of Russian-Sub-Source-I’s candidacy for a position in the Russian Presidential Administration.

As it was, Danchenko attributed of any mention of Peskov in the dossier to Galkina. But Galkina’s real ties to Peskov, the person who knew more about Michael Cohen and Trump’s secret than anyone else in Russia — who knew they were pursuing an impossibly lucrative real estate deal involving sanctioned banks and a retired GRU officer with Peskov’s help — had been enhanced in months leading up to that reporting. Galkina’s ties to Peskov would had been enhanced in a way that may have made her source relationship with Danchenko even more evident to Russian spooks (though it would always have been easy to discover).

That is, Dolan’s business relationships with the Russian government may not be important because Galkina appeared to share his enthusiasm for Hillary — the reason Durham included garden variety business networking in the midst of the Danchenko indictment. Rather, it may be important because it made her a much more lucrative target for disinformation.

Olga Galkina was in a position where, if Russia had wanted to tell the secret they knew Trump was keeping from voters, she might have learned the truth behind Cohen’s real, hidden communications with the Kremlin, a truth that voters had a right to know. Instead, she told a false story that mirrored certain aspects of the story that Cohen would do prison time in a failed attempt to hide, but which instead became an easily debunked stand-in for the real story of Trump’s enthusiasm for Russia’s efforts to tamper in America’s democracy.

If the dossier was significantly disinformation, then all Americans were victims of it. It turned a legitimate concern about real Russian interference into American elections into one of the biggest sources of political polarization in recent history. Like the social media trolling from Internet Research Agency, it stoked divisions, with the added benefit that it led significant numbers of Trump voters to trust the Russians who were feeding that disinformation more than they trust the current President. One viral Twitter thread earlier this year even claimed that the dossier (and therefore any Russian disinformation in it) led directly to and justified the attack on the Capitol on January 6. As such, disinformation injected into the dossier should increasingly be treated as a potential central part of the 2016 Russian influence operation — perhaps its most successful and lasting part.

Erik Wemple has spent a lot of time pushing CNN into committing the same reporting failures with the Danchenko indictment as they did on the dossier itself. But that has left largely unexamined the question of why the stories that did get told got told, which may be far more important to understanding how Russia was willing to screw both Paul Manafort and Hillary Clinton.

Danchenko posts

The Igor Danchenko Indictment: Structure

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

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

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

Source 6A: John Durham’s Twitter Charges

John Durham: Destroying the Purported Victims to Save Them

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

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

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

On CIPA and Sequestration: Durham’s Discovery Deadends

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

On CIPA and Sequestration: Durham’s Discovery Deadends

/18 Comments/in , , , /by

In this post, I laid out the range of highly classified or other potentially unavailable information that Igor Danchenko will be able to make a credible claim to need to defend himself against charges he knowingly lied to the FBI.

That list includes:

  • Details about a Section 702 directive targeting Danchenko’s friend, Olga Galkina
  • Extensive details about Sergei Millian’s Twitter account, including proof that Millian was always the person running it
  • Details of the counterintelligence investigation into Millian
  • Materials relating to Millian’s cultivation, in the same weeks as a contested phone call between Danchenko and Millian, of George Papadopoulos
  • Evidence about whether Oleg Deripaska was Christopher Steele’s client for a project targeting Paul Manafort before the DNC one
  • All known details of Deripaska’s role in injecting disinformation into the dossier, up through current day
  • Details of all communications between Deripaska and Millian
  • Details of the counterintelligence investigation into Carter Page
  • Both the FISA applications targeting Page and the underlying discussions about them
  • FISA-obtained collection that is helpful and material to Danchenko’s defense, including all substantive collection incriminating Page obtained before Danchenko’s January interviews, and all intelligence relating to the specific alleged lies in the indictment
  • Materials relating to FBI’s attempt to corroborate the dossier, including materials from Page’s FISA collection that either corroborated or undermined it

As I noted, I know of no prior case where a defendant has had notice of two separate FISA orders as well as a sensitive ongoing counterintelligence investigation and a credible claim to need that information to mount a defense. Durham has committed to potentially impossible discovery obligations, all to prosecute five (or maybe two) lies that aren’t even alleged to have willingly obstructed an investigation. For reasons I lay out below, Durham may not, legally, be able to do that.

To be quite clear: that Danchenko can make a credible claim to need this stuff doesn’t mean he’ll get it, much less be permitted to present it at trial. But, particularly given that the two FISA orders and the counterintelligence investigations have all been acknowledged, DOJ can’t simply pretend they don’t have the evidence. For perhaps the first time ever, DOJ doesn’t get to decide whether to rely on FISA information at trial, because the indictment was written to give the defense good cause to demand it.

Still, much of this stuff will be dealt with via the Classified Information Proecdures Act, CIPA. CIPA is a process that purports to give the government a way to try prosecutions involving classified information, balancing discovery obligations to a defendant with the government’s need to protect classified information. (Here’s another description of how it works.)

Effectively, Danchenko will come up with a list similar to the one above of classified information he believes exists that he needs to have to mount a defense. The government will likewise identify classified information that it believes Danchenko is entitled to under discovery rules. And then the judge — Anthony Trenga, in this case — decides what is material and helpful to Danchenko’s defense. Then the government has the ability to “substitute” language for anything too classified to publicly release, some of it before ever sharing with the defendant, the rest after a hearing including the defense attorneys about what an adequate substitution is.

Here’s a fragment of an exhibit from the Joshua Schulte case that shows the end product of the CIPA process: The CIA was able to replace the name of a vendor the CIA used (presumably as a cover) with the generic word, “vendor,” thereby preventing others from definitively attributing the cover with the CIA. It replaced the description of those who would use the hacking tool with “operators.” Elsewhere, the same exhibit replaced the name of one of Schulte’s colleagues. It redacted several other words entirely.

Here are some more exhibits — CIA Reports submitted at the Jeffrey Sterling trial — that show the outcome of the CIPA process.

On top of the fact that CIPA adds a way for the government to impose new roadblocks on discovery (and discovery only begins after a defendants’ attorneys are cleared), it can end up postponing the time when the defendant actually gets the evidence he will use at trial. So it generally sucks for defendants.

But the process is also onerous for the prosecutor. Basically, the prosecutor has to work with classification authorities from the agency or agencies that own particular classified information and cajole them to release enough information to get past the CIPA review. In my earlier post, I described that Patrick Fitzgerald had to do this with the Presidential Daily Briefs, and it took him several attempts before he had declassified enough information to satisfy Judge Reggie Walton that it provided Scooter Libby with the means to make his defense. If the agency involved in the CIPA process hasn’t totally bought off on the importance of the prosecution, they’re going to make the process harder. Often, the incentive for agencies to cooperate stems from the fact that the defendant is accused of leaking secrets that the agency in question wants to avenge.

Because the process is so onerous, DOJ works especially hard to get defendants to plead before the CIPA process, and often because the defendant is facing the kind of stiff sentence that comes with Espionage charges, CIPA makes it more likely they’ll plead short of trial.

Those two details already make Danchenko’s trial different from most CIPA cases. That’s true, first of all, because Danchenko never had any agency secrets, and prosecutors will be forced to persuade multiple agencies (at least the FBI and NSA, and possibly CIA and Treasury) to give a Russian national secrets even though his prosecution will set no example against leaking for the agencies. Indeed, the example Danchenko will be setting, instead, is that the FBI doesn’t honor its commitments to keep informant identities safe. Additionally, there’s little reason for Danchenko to plead guilty, as the punishment on five 18 USC 1001 charges would not be much different than one charge (remember, Kevin Clinesmith got probation for his 18 USC 1001 conviction), and Danchenko would still face deportation after he served any sentence, where he’s likely to face far greater retaliation than anything US prisons would pose. That will influence the CIPA process, too, as a successful prosecution would likely result in the Russian government coercing access to whatever secrets that intelligence agencies disclose to Danchenko during the prosecution.

CIPA always skews incentives, but this case skews incentives differently than other CIPA cases.

Add in that Judge Trenga, the judge in this case, has been pondering CIPA issues of late in the case of Bijan Kian, Mike Flynn’s former partner, who was prosecuted on Foreign Agent charges. Trenga was long unhappy with the way DOJ charged Kian’s case, and grew increasingly perturbed with DOJ’s attempts to salvage the case after Flynn reneged on his cooperation agreement. Trenga overturned the jury’s guilty verdict, but was subsequently reversed on that decision by the Fourth Circuit. Since then, Kian has been demanding two things: more access to classified materials underlying evidence he was given pursuant to the CIPA process right before trial showing previously undisclosed contacts between Flynn and Ekim Alptekin not involving Kian, and a new trial, partly based on late and inadequate disclosure of that CIPA information.

Following a series of ex parte hearings regarding classified evidence pursuant to the Confidential Information Procedures Act (“CIPA”), the government, on the eve of trial, handed Rafiekian a one-sentence summary, later introduced as Defendant’s Exhibit 66 (“DX66”), informing Rafiekian that the government was aware of classified evidence relating to interactions between Flynn and Alptekin that did not “refer[] to” Rafiekian. DX66.1 Following receipt of DX66, Rafiekian immediately sought access to the underlying information pursuant to CIPA because “[i]t goes right to the question of what happened and what he knew and what statements were made and who was making them,” and “[i]f Mr. Rafiekian is convicted without his counsel having access to this exculpatory evidence, we believe it will go right to the heart of his due process and confrontation rights.” Hr’g Tr. 31 (Jul. 12, 2019), ECF No. 309. The Court took the request under advisement, noting that it “underst[ood] the defense’s concern and w[ould] continue to consider whether additional disclosure of information” would be necessary as the case developed. Id. at 32. At trial, the government used DX66 in its rebuttal argument in closing to show that Rafiekian participated in the alleged conspiracy—“even though the information in that exhibit related solely to Flynn and explicitly excluded Rafiekian.” Rafiekian, 2019 WL 4647254, at *17.

1 DX66 provides in full: The United States is in possession of multiple, independent pieces of information relating to the Turkish government’s efforts to influence United States policy on Turkey and Fethullah Gulen, including information relating to communications, interactions, and a relationship between Ekim Alptekin and Michael Flynn, and Ekim Alptekin’s engagement of Michael Flynn because of Michael Flynn’s relationship with an ongoing presidential campaign, without any reference to the defendant or FIG.

With regards to the first request, Trenga has ruled that Kian can’t have the underlying classified information, because (under CIPA’s guidelines) the judge determined that, “the summary set forth in DX Exhibit 66 provides the Defendant with substantially the same ability to make his defense as would disclosure of the specific classified information.” But his decision on the second issue is still pending and Trenga seems quite open to Kian’s request for a new trial. So Danchenko and Durham begin this CIPA process years into Trenga’s consideration about how CIPA affects due process in the Kian case. I don’t otherwise expect Trenga to be all that sympathetic to Danchenko, but if Trenga grants Kian a new trial because of the way prosecutors gained an unfair advantage with the CIPA process (by delaying disclosure of a key fact), it will be a precedent for and hang over the CIPA process in the Danchenko case.

Then there are unique challenges Durham will face even finding everything he has to provide Danchenko under Brady. In the Michael Sussmann case, I’ve seen reason to believe Durham doesn’t understand the full scope of where he needs to look to find evidence relevant to that case. But given the centrality of investigative decisions in the Danchenko case — and so the Mueller investigation — to Durham’s materiality claims, Durham will need to make sure he finds everything pertaining to Millian, Papadopoulos, and Kiliminik and Deripaska arising out of the Mueller case. In the case of Steve Calk, that turned out to be more difficult than prosecutors initially imagined.

But all of these things — the multiple sensitive investigations relevant to Danchenko’s defense, normal CIPA difficulties, unique CIPA difficulties, and the challenges of understanding the full scope of the Mueller investigation — exist on top of another potential problem: DOJ doesn’t control access to some of the most important evidence in this case.

As I noted in my earlier post, there are multiple things FBI obtained by targeting Carter Page that Danchenko will be able to demand to defend himself against Durham’s materiality claims. For example, FBI obtained information under FISA that seems to undercut Page’s claims that he didn’t meet with Igor Diveykin, a claim Danchenko sourced to Olga Galkina, who is central to Durham’s materiality claims.

If this information really does show that Page was lying about his activities in Russia, it would provide proof that after the initial FISA order, FBI had independent reason to target Page.

Similarly, FBI believed that Page’s explanation for how he destroyed the phone he was using in Fall 2016 was an excuse made up after he knew he was being investigated; that belief seems to be based, in part, on information obtained under FISA.

The FBI’s suspicions about that broken phone seem to be related to their interest in collecting on an encrypted messaging app Page used, one of the two reasons why FBI sought reauthorization to target Page in June 2017. Danchenko will need this information to prove that the June 2017 reauthorization was driven entirely by a desire to get certain financial and encrypted communication evidence, and so could not have been affected by Danchenko’s May and June 2017 interviews.

Information obtained from targeting Page under FISA will similarly be central to Danchenko’s defense against Durham’s claims that his alleged lies prevented FBI from vetting the dossier. That’s because the spreadsheet that FBI used to vet the dossier repeatedly relied on FISA-collected information to confirm or rebut the dossier. Some of that pertains to whether Page met with Igor Diveykin, an allegation Danchenko sourced to Olga Galkina, making it central to his defense in this case.

Other FISA-collected material was used to vet the Sergei Millian claim, which Durham charged in four of five counts.

Some of this may not be exculpatory (though some of it clearly would be). But it is still central to the case against Danchenko.

The thing is, Durham may not be legally able to use this information in Danchenko’s prosecution, and even if he is, it will further complicate the CIPA process.

Back on January 7, 2020, James Boasberg — acting in his role as the then-presiding FISA Judge — ordered that the FBI adopt limits on the use of any information obtained via the four Carter Page FISA orders. Such orders are one of the only tools that the FISA Court has to prohibit the use of information that the Executive collects but later determines did not comply with FISA (the government only retracted the probable cause claims for the third and fourth FISA orders targeting Page, but agreed to sequester all of it). A subsequent government filing belatedly obtaining permission to use material obtained via those FISA orders in conjunction with Carter Page’s lawsuit laid out the terms of that sequester. It revealed that, according to a June 25, 2020 FISA order, the government can only legally use material obtained under those FISA orders for the following purposes:

  1. Certain identified ongoing third-party litigation pursuant to the Freedom of Information Act (FOIA)
  2. Ongoing and anticipated FOIA and civil litigation with Page
  3. FBI review of the conduct of its personnel involved in the Page investigation
  4. DOJ OIG monitoring of the implementation of one of the recommendations stemming from the OIG Report
  5. The review of the conduct of Government personnel in the Page and broader Crossfire Hurricane investigations [my emphasis]

On November 23, 2020, Boasberg issued a follow-up order in response to learning, on October 21, 2020, that DOJ had already shared sequestered FISA information with the US Attorney for Eastern Missouri (the Jeffrey Jensen review), the US Attorney for DC (possibly, though not certainly, the Durham case), and the Senate Judiciary Committee (FISC may have learned of the latter release when the vetting spreadsheet was publicly released days before DOJ informed FISC of that fact). Effectively, Bill Barr’s DOJ had confessed to the FISA Court that it had violated FISA by disseminating FISA-collected information later deemed to lack probable cause without first getting FISC approval. Boasberg ordered DOJ to “dispossess” the MOE USAO and DC USAO of the sequestered information and further ordered that those US Attorneys, “shall not access materials returned to the FBI … without the prior approval of the Court.”

There’s no evidence that Durham obtained approval to access this information (though DOJ applications to FISC often don’t get declassified, so it’s not clear it would show up in the docket). And when I asked DOJ whether Durham had obtained prior approval to access this sequestered information even for his own review, much less for use in a prosecution, I got no response. While accessing the sequestered material for review of the conduct of Government personnel is among those permitted by the original order (bolded above), using it to review the conduct of non-governmental sources like Danchenko was not, to say nothing of prosecuting such non-governmental sources. To get approval to use sequestered information in the Danchenko case, Durham would have to convince FISC to let Durham share such information with a foreign national whose prosecution would lead to his deportation to Russia. And if he shared the information without FISC approval, then Durham himself would be violating FISA.

To be sure, it would be the most unbelievable kind of malpractice to charge the Danchenko case without, first, ascertaining how Durham was going to get this sequestered information. I’d be shocked if Durham hadn’t gotten approval first. But then, I was shocked that when Durham charged Kevin Clinesmith, he didn’t know what crimes FBI investigated Page for. I am shocked that Durham used Sergei Millian’s Twitter feed to substantiate a factual claim that Millian didn’t speak with Danchenko. So who knows? Maybe Durham has not yet read this evidence, to say nothing of ensuring he can share it with a Russian national in discovery. It would shock me, but I’m growing used to being shocked by Durham’s recklessness.

In any case, depending on what the FISC has decided about disseminating — and making public — this sequestered information, it will, at the very least, create additional challenges for Durham. Durham couldn’t just assert that DOJ IG had determined that the this information was not incriminating to Page and therefore not helpful to Danchenko to avoid sharing the sequestered FISA information. Under CIPA, Judge Trenga would need to review the information himself and assess whether information obtained under Page’s FISA was material and helpful to Danchenko’s defense. If he decided that Danchenko was entitled to it in his defense, then Durham might have to fight not just with FBI and NSA to determine an adequate substitution for that information, but also FISC itself.

CIPA assumes that the Executive owns the classification decisions regarding any information to be presented at trial, and therefore the Executive gets to balance the value of the prosecution against the damage declassifying the information would do. Here, as with Fitzgerald, a Special Counsel will be making those decisions, setting up a potential conflict with all the agencies that may object. But here, FISC has far more interest in the FISA information than it would if (say) it were just approving the use of FISA-obtained material to prosecute the person targeted by that FISA.

Again, John Durham is going to have to declassify a whole bunch of sensitive information, including information sequestered to protect Carter Page, to give it to a foreign national who never had those secrets such that, if Durham succeeds at trial, it may lead inevitably to Russia obtaining that sensitive information. All that for five shoddily-charged false statements charges. This is the kind of challenge that a prosecutor exercising discretion would not take on.

But Durham doesn’t seem to care that he’s going to damage all the people he imagines are victims as well as national security by bringing this case to trial.

Danchenko posts

The Igor Danchenko Indictment: Structure

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

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

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

Source 6A: John Durham’s Twitter Charges

John Durham: Destroying the Purported Victims to Save Them

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

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

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

On CIPA and Sequestration: Durham’s Discovery Deadends

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

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

/20 Comments/in , , /by

Deep in a CNN report purporting to “reckon” with the Steele dossier, Marshall Cohen claims that “The Mueller report said there wasn’t evidence of a criminal conspiracy to collude.”

This thirteen word sentence has a number of errors. Mueller explicitly noted that “collusion is not a specific offense or theory of liability found in the United States Code, nor is it a term of art in federal criminal law,” so it would be impossible to engage in a criminal conspiracy to collude. The Mueller Report further noted that, “A statement that the investigation did not establish particular facts” — such as the finding that, “the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities” — “does not mean there was no evidence of those facts.” The actual crimes for which there was evidence, but insufficient to prove beyond a reasonable doubt, were:

  • Serving as an unregistered foreign agent of Russia
  • Criminal campaign finance violation
  • Conspiring in the hack-and-leak operation
  • Conspiring to obstruct a lawful government function

In fact, a footnote declassified days before the 2020 election revealed that, “some of the factual uncertainties,” about whether Roger Stone participated in the hacking conspiracy, “are the subject of ongoing investigations that have been referred by this Office to the D.C. U.S. Attorney’s Office,” meaning that the investigation into whether Stone conspired with Russia in 2016 remained ongoing after Mueller finished work.

Additionally, the declinations section specifically says that multiple individuals told lies that obstructed the investigation into whether the contacts between the campaign and Russia violated criminal law. If George Papadopoulos hadn’t lied about telling the campaign about the Russian help, if Michael Cohen hadn’t lied about an impossibly lucrative real estate deal in Moscow, if Roger Stone hadn’t lied about how he optimized the email release (and how many times he spoke to Trump about it), if Paul Manafort hadn’t lied about swapping campaign strategy for $19 million in debt relief, and if Mike Flynn hadn’t lied about undermining sanctions, Mueller might have obtained evidence to prove a conspiracy beyond a reasonable doubt.

Mistaking not having enough evidence to prove a conspiracy beyond a reasonable doubt and not having evidence at all is a common error, though more typical coming from those who publish fawning interviews with Konstantin Kilimnik repeating his assurances he’s not a Russian spy.

But it matters in this piece for the way Cohen airs insinuations that John Durham made for which Durham doesn’t, apparently, have enough evidence to prove something beyond a reasonable doubt (and which probably wouldn’t even be crimes).

Cohen starts by asserting, as fact, that “Democratic involvement in Steele’s work was much deeper than previously known,” in the same paragraph where he notes that Charles Dolan has been accused of no crime.

But Democratic involvement in Steele’s work was much deeper than previously known. Court filings from the Durham inquiry recently revealed that some information in the dossier originated from Charles Dolan, 71, a public relations executive with expertise in Russian affairs who had a decades-long political relationship with the Clinton family. He has not been accused of any crimes. [my emphasis]

Cohen continues to describe Dolan’s involvement in four more ways that don’t involve any crime by Dolan: That Dolan was in regular contact with Danchenko (which Danchenko didn’t deny), that Dolan was “indirectly connected” to the pee tape, and that “Dolan was also indirectly linked” to a claim about a Russian diplomat being reassigned, and that Dolan lied to Danchenko — about his source for a true report — at a time Dolan knew nothing of the specifics of the Steele project.

Federal prosecutors said Dolan was in regular contact in 2016 with Steele’s primary source Igor Danchenko, 49, a Russian citizen and foreign policy analyst who lives in Virginia. Danchenko was indicted on November 4 for allegedly lying to the FBI about his dealings with Dolan and a fellow Soviet-born expat that he claimed was one of his sources.

Danchenko pleaded not guilty last week. In a statement to CNN, his defense attorney Mark Schamel said Durham is pushing a “false narrative designed to humiliate and slander a renowned expert in business intelligence for political gain.” Schamel also accused Durham of including legally unnecessary information in the 39-page indictment to smear Danchenko.

“For the past five years, those with an agenda have sought to expose Mr. Danchenko’s identity and tarnish his reputation while undermining U.S. National Security,” Schamel said. “…This latest injustice will not stand. We will expose how Mr. Danchenko has been unfairly maligned by these false allegations.”

The indictment indirectly connected Dolan to the infamous claim that Russia possessed a compromising tape of Trump with prostitutes in Moscow, which became known as the “pee tape.” (Trump and Russia both denied the allegations.) According to the Danchenko indictment, in June 2016, Dolan toured the Ritz-Carlton suite where the alleged liaison occurred, and discussed Trump’s 2013 visit with hotel staff, but wasn’t told about any sexual escapades. It’s still unclear where those salacious details that ended up in the dossier came from.

Dolan was also indirectly linked in the indictment to still-unverified claims about Russian officials who were allegedly part of the election meddling. The indictment also suggested that Steele’s memos exaggerated what Dolan had passed along to Danchenko.

The indictment also says the dossier contained a relatively mundane item about Trump campaign infighting that Dolan later told the FBI he actually gleaned from news articles. Prosecutors say Dolan even lied to Danchenko about where he got the gossip, by attributing it to a “GOP friend” who was “a close associate of Trump.” [my emphasis]

Importantly, for only the last of these dossier reports is Dolan specifically alleged to be a source in the dossier (and, again, Dolan credibly claimed not to know why Danchenko was asking for dirt on Trump). The rest are introduced into the indictment in part by claiming Danchenko — who admitted he and Dolan “talked about … related issues” — lied in part to hide that Dolan, “was otherwise involved in the events and information described in the reports.”

But the two examples that Cohen treats as news — the pee tape and the reassigned diplomat (there’s a third included involving Sergei Ivanov’s removal) — are laid out in the indictment as materiality arguments, not accused crimes that Durham thinks he can prove beyond a reasonable doubt. They’re the things Durham claims Danchenko hid by purportedly lying about whether he had done more than speak to Dolan about related topics. There’s no reason to believe that FBI — which had 702 collection showing extensive ties between Dolan and Danchenko’s Russian source Olga Galkina, undoubtedly including some of the communications Durham relies on in the indictment — ever asked Danchenko whether Dolan was the source for the one report Durham claims Dolan was the source for, much less the three where Durham imagines he had some other kind of role in. (I have noted that Durham appears to have misrepresented the question that led into this answer; it seems to have been whether Dolan served as a source for Steele, not Danchenko.) Durham presents the damage from Danchenko’s claimed lie in terms of questions that the FBI, even sitting on those communications, might have asked, but did not.

Here’s how it looks on the pee tape.

Based on the foregoing, DANCHENKO’s lies to the FBI denying that he had communicated with PR Executive-I regarding information in the Company Reports were highly material. Had DANCHENKO accurately disclosed to FBI agents that PR Executive-I was a source for specific information in the aforementioned Company Reports regarding Campaign Manager-1 ‘s departure from the Trump campaign, see Paragraphs 45-57, supra, the FBI might have taken further investigative steps to, among other things, interview PR Executive-I about (i) the June 2016 Planning Trip, (ii) whether PR Executive-I spoke with DANCHENKO about Trump’s stay and alleged activity in the Presidential Suite of the Moscow Hotel, and (iii) PR Executive-1 ‘s interactions with General Manager-I and other Moscow Hotel staff. In sum, given that PR Executive-I was present at places and events where DANCHENKO collected information for the Company Reports, DANCHENKO’s subsequent lie about PR Executive-1 ‘s connection to the Company Reports was highly material to the FBI’ s investigation of these matters.

As I’ve noted, one likely, and damning, scenario (Durham presents no evidence that he knows what actually did happen) is that Danchenko used the details Dolan told him about the Ritz tour to flesh out the pee tape rumor he attributed to Sergey Abyshev, with whom he met and drank on the same day, using the names of the Ritz staffers without interviewing them. But even if that’s what happened, there’s no hint that Dolan provided this information wittingly as part of an effort to hurt Trump (and even if it was gossip about Trump, it would not be a crime).

Effectively, Durham is arguing it is more important for the FBI to find out if unwitting Democrats provided information for the dossier — and Durham’s fleshed out his claims that Dolan played a role in several of the other reports precisely based on the accuracy of what Dolan had learned from high ranking Russians, not on any claim he was making rumors up — than Russians with ties to the intelligence services feeding deliberate disinformation. If Dolan’s involvement was unwitting, there could be no conspiracy to defraud the government, not even if Danchenko knew his reports were being shared with the FBI, which Durham doesn’t claim he did.

Again, this entire indictment treats unwitting Democrats as more dangerous adversaries than Russians deliberately trying to intervene in America’s election.

By presenting his other Dolan claims as materiality arguments, then, Durham manages to insinuate things — things that aren’t even crimes — without having solid evidence behind them. And he does so in an indictment that doesn’t cut-and-paste quotations faithfully and relies on Sergei Millian’s Twitter feed for a key claim of fact.

And Cohen allows himself — in a piece talking about how foolish it was for the press to repeat the sloppy insinuations from the dossier — to serve as a mouthpiece for Durham’s unsubstantiated insinuations.

There are other errors in this piece. One that bears notice — because it’s another case where Cohen got fooled — is where he claims that Galkina disclaimed being a source for a claim that was attributed to her.

Another Russian who Danchenko told the FBI was one of his sources said in a sworn affidavit in a civil case that she wasn’t the source for at least one claim that was attributed to her. The woman, publicist Olga Galkina, said she believes Danchenko told the FBI she was his source “to create more authoritativeness for his work,” according to court filings.

That’s false. The only thing that Galkina disclaimed being a source for in her declaration was the Alfa Bank story. As I laid out here, in his public interview report, Danchenko associates that report, but does not attribute it, to his drinking buddy, Sergey Abyshev. The declarations from Danchenko’s other sources in that docket, including Galkina’s, were just legal smoke and mirrors (and a way to get those names before Durham and frothy right wingers). The fact that Galkina stated that, “Mr. Danchenko and I did not discuss anything related to the Dossier or its contents during,” a March 2016 meeting in the US where Danchenko introduced her to Dolan, a meeting which preceded the dossier project by months, is a glaring sign that this declaration is a non-denial denial. So, too, is her suggestion that she could only have shared information face to face when Danchenko told the FBI he sourced his stories to her over phone calls.

The dossier has been shown to be full of unsubstantiated insinuations. And Marshall Cohen’s approach to reckoning with CNN’s past magnification of those unsubstantiated insinuations was to treat ones Durham included in the Danchenko indictment just as credulously.

Danchenko posts

The Igor Danchenko Indictment: Structure

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

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

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

Source 6A: John Durham’s Twitter Charges

John Durham: Destroying the Purported Victims to Save Them

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

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

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

On CIPA and Sequestration: Durham’s Discovery Deadends

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

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

/11 Comments/in , /by

As Josh Gerstein reports, one of the Russians who has used the Steele dossier way as a way to engage in protracted, embarrassing lawfare, Aleksej Gubarev, has dropped his lawsuit.

A Russian internet entrepreneur has dropped a four-year legal battle against BuzzFeed over its publication of the so-called Steele dossier, a politically charged compendium produced during the 2016 presidential campaign that contained allegations about ties between then-candidate Donald Trump and Russia.

BuzzFeed put the document online in unedited form in January 2017, citing the interest in informing the public of the dossier’s role in Congressional and FBI investigations. The posting prompted a lawsuit from Russian Aleksej Gubarev, who contended that he was libeled by the dossier’s claims about his involvement in the hacking of Democratic Party officials in 2016.

BuzzFeed later redacted Gubarev’s name from the version of the dossier posted on the news outlet’s website and apologized for leaving it in at the outset.

A federal judge in Miami tossed out the lawsuit in late 2018, ruling that BuzzFeed’s publication of the dossier was legally privileged because of the role the compilation played in ongoing federal investigations, even though the dossier was never formally released by the government.

Gubarev appealed that decision to the Atlanta-based 11th Circuit Court of Appeals, but on Wednesday the Russian businessman and BuzzFeed announced that the appeal was being dropped.

“Mr. Gubarev has decided to end his litigation against BuzzFeed over its publication of the dossier in January 2017. The federal court ruled that BuzzFeed had a right to publish the dossier because it was part of a government investigation, and Mr. Gubarev accepts that judgment,“ Gubarev and BuzzFeed said in a joint statement.

The move comes in the wake of the Igor Danchenko indictment that describes that both Gubarev’s PR person, Olga Galkina, and his US PR consultant, Charles Dolan, were sources in the dossier (though the latter claim remains only an allegation). In an FBI interview report released last year, Danchenko had named Galkina as his source for the December 2016 report that Gubarev sued over.

Galkina had described her position at XBT in a filing submitted in an Alfa Bank lawsuit, the parallel lawfare to Gubarev’s. She also described being introduced to Dolan (though her denial of discussing subjects in the dossier, both generally and with Dolan, amount to non-denial denials sharply limited in time and subject).

My background is in journalism and public relations. I now work as a communications advisor. Previously, I held a number of positions in public relations and government, including head of the Governor’s Press Service in the Saratov Region (2005–2006); deputy head of the city administration in Saratov (2006–2007); and public relations advisor at Servers.com, a part of the XBT Holding group of companies that includes Webzilla (2015–2016).

[snip]

Mr. Danchenko and I met once in 2016. In connection with my job at Servers.com, I traveled to the United States in the spring of 2016 to participate in the Game Developers Conference event and investigate the prospects of running a public relations campaign for the company in the United States. I asked Mr. Danchenko to assist those efforts, and he introduced me to a third party, Charles Dolan, whom he thought could help. Mr. Danchenko and I did not discuss anything related to the Dossier or its contents during this meeting.

Indeed, Durham notes that Galkina’s employer appears in the dossier.

In or about early 2016, Russian Sub-Source-I began working at a business based in Country-I (“Business-I”) that was owned by a Russian national and would later appear in the Company Reports. Russian Sub-Source-I conducted public relations and communications work for Business-I .

Durham further describes that Danchenko let Dolan know that Galkina was looking for a PR firm, which led to Dolan being hired by Gubarev’s company.

In or about March 2016, and prior to the June 2016 Planning Trip, DANCHENKO learned from Russian Sub-Source-I that Business-I was interested in retaining a U.S.-based public relations firm to assist with Business-1 ‘sentry into the U.S. market. DANCHENKO brokered a meeting between PR Executive-I and Russian Sub-Source-I to discuss a potential business relationship. Thereafter, PR Firm-I and Business-I entered a contractual relationship.

Durham even quoted Dolan making all these connections.

[] I’ve been interviewed by the Washington Post and the London Times – three times over the last two days over the [Foreign Intelligence Service-I] Dossier on Trump and I know the Russian agent who made the report (He used to work for me). My client in [Country-I] [Business-I] has been accused of being the party that organized the hacking. Presently speaking with the barrister in London who is filing a brief against Former British [Government Employee] [U.K. Person-1] has been unmasked as the man behind an explosive dossier about US president-elect Donald Trump. Also in conversation with former British Ambassador who knows [U.K. Person-I]. Quite right – Oh what a boring life. [underline Dolan’s, bold Durham’s]

Had this lawsuit continued, BuzzFeed might have had the opportunity to turn the tables on Gubarev, to inquire whether he had a role in the report he was suing over, or perhaps had asked Galkina to give Danchenko a collection tasking after the dossier came out. It might have invited further scrutiny into how Galkina hired Dolan in the first place.

Indeed, had the lawsuit continued, BuzzFeed might have had the opportunity to do some new reporting on the extent to which the dossier — Galkina’s reports were the most quickly debunked Michael Cohen reports — was intentional disinformation.

Before such an opportunity presented, it seems, Gubarev has decided the suit has achieved its goals.

Update: This settlement has been in the works for some time–though it is not clear whether those discussions precede the Galkina declaration that would have IDed her ties to Gubarev and Dolan.

Danchenko posts

The Igor Danchenko Indictment: Structure

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

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

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

Source 6A: John Durham’s Twitter Charges

John Durham: Destroying the Purported Victims to Save Them

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

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

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

On CIPA and Sequestration: Durham’s Discovery Deadends

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