The Recruitment of Jared Kushner

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The other day, DOJ provided its sixth installment of Mueller 302s in response to BuzzFeed and CNN’s FOIAs. The batch includes files that have previously been referred to other agencies, such as multiple pages from Steve Bannon’s February 14, 2018 interview that were sent to DOD, which has determined they must be protected under b5 (deliberative) and one b4 (trade secrets) exemption.

A whole set of previously referred interview reports pertain to Russian outreach to Jared Kushner. These reports include:

In addition, the 302 of Richard Burt and some other people from Center for National Interest — Simes’ think tank — were released.

As a reminder, CNI served as the host for Trump’s first foreign policy speech on April 27, 2016. There were allegations that CNI provided feedback on the speech and questions about whom Sergey Kislyak spoke with at the speech. Simes continued to advise Kushner on policy pertaining to Russia throughout the campaign. When Kushner wanted to vet an email from Vladimir Putin immediately after the election, he reached out to Simes for Kislyak’s contact information. Then, a series of meetings arranged via Kislyak during the Transition, during one of which Kushner asked for a back channel, resulted in a meeting with the head of sanctioned bank, Vnesheconombank, Sergei Gorkov.

Parallel to the Kislyak-led effort, Russia made three other attempts to establish a back channel during the Transition. One, via Robert Foresman reaching out to Mike Flynn, one via CNI Board Member and Alfa Bank board member Richard Burt through Simes, and a third — the most successful — in which Kirill Dmitriev reached out first via George Nader and then through Kushner’s college buddy Rick Gerson.

None of these newly released interview reports have exemption markings akin to the ones on Bannon’s reprocessed pages describing which agency they had been referred to (which may suggest they were reviewed by CIA), but they seem to pertain to the cultivation of the President’s son-in-law.

To be very clear: while Dmitriev, using Gerson, succeeded in setting the agenda for the first phone call between Putin and Trump, the Mueller Report found no evidence that Russia succeeded in using CNI has a back channel.

The investigation did not identify evidence that the Campaign passed or received any messages to or from the Russian government through CNI or Simes.

That said, all of this remains appears to remain under active investigation. Between Simes’ first and second interviews, over 200 redactions cite a b7A exemption for an ongoing investigation; many of those also cite b3, which may indicate classified information. 25 redactions in Burt’s interview cite b7A and there are a number of b3 exemptions. Four paragraphs in what may be a continuation of the Simes discussion in Kushner’s interview include b7A redactions. There are also b7A redactions (some also marked b3) in the interview reports of fellow CNI employees, Jacob Heilbrunn and Paul Saunders.

And while the available reports suggest Kushner was just an easy mark in all of this (as he likely is for all the foreign countries he negotiates with — there’s nothing unique about Russia here), there are a few details about how this got written up in the Mueller Report worth noting. For example, the Mueller Report describes Kushner reaching out to Simes because they had so little support from experienced foreign policy people.

Kushner told the Office that the event came at a time when the Trump Campaign was having trouble securing support from experienced foreign policy professionals and that, as a result, he decided to seek Simes’s assistance during the March 14 event.

The underlying 302 report describes Kushner “admitt[ing] to ‘pursuing’ SIMES.”

A paragraph in the Mueller Report describing Kushner’s periodic contact with Simes during the campaign depicts Kushner as the passive recipient of Simes’ attention.

Between the April 2016 speech at the Mayflower Hotel and the presidential election, Jared Kushner had periodic contacts with Simes.648 Those contacts consisted of both in-person meetings and phone conversations, which concerned how to address issues relating to Russia in the Campaign and how to move forward with the advisory group of foreign policy experts that Simes had proposed.649 Simes recalled that he, not Kushner, initiated all conversations about Russia, and that Kushner never asked him to set up back-channel conversations with Russians.650 According to Simes, after the Mayflower speech in late April, Simes raised the issue of Russian contacts with Kushner, advised that it was bad optics for the Campaign to develop hidden Russian contacts, and told Kushner both that the Campaign should not highlight Russia as an issue and should handle any contacts with Russians with care.651 Kushner generally provided a similar account of his interactions with Simes.652

648 Simes 3/8/18 302, at 27.

649 Simes 3/8/18 302, at 27.

650 Simes 3/8/18 302, at 27.

651 Simes 3/8/18 302, at 27. During this period of time, the Campaign received a request for a high-level Campaign official to meet with an officer at a Russian state-owned bank “to discuss an offer [that officer] claims to be canying from President Putin to meet with” candidate Trump. NOSC00005653 (5/17/16 Email, Dearborn to Kushner (8: 12 a.m.)). Copying Manafort and Gates, Kushner responded, “Pass on this. A lot of people come claiming to carry messages. Very few are able to verify. For now I think we decline such meetings. Most likely these people go back home and claim they have special access to gain importance for themselves. Be careful.” NOSC00005653 (5/17/16 Email, Kushner to Dearborn).

652 Kushner 4/11 /18 302, at 11-13.

But the unredacted details in Kushner’s 302 are of interest. They describe Simes sending Kushner a “memo on what Mr. Trump may want to say about Russia.” And in his interview, Kushner described never receiving information from Simes that could be “operationalized” (this passage appears before a description of Simes floating dirt on Clinton).

Similarly, the Mueller Report does not include something that appears in Kushner’s 302 describing the President’s son-in-law asking for a back channel, that Kushner asked to be connected with people “who can make decisions.” Days later, of course, Kislyak started to set up the meeting with Sergei Gorkov.

The Report notes that these meetings took place in either Kushner’s office or that of Colony Capital (Tom Barrack’s office). But the passage from Kushner’s 302 which the Report cites for the location of the Gorkov meeting (page 19) remains redacted.

The one-on-one meeting took place the next day, December 13, 2016, at the Colony Capital building in Manhattan, where Kushner had previously scheduled meetings. 1152

1152 Kushner 4/11/18 302, at 19; NOSC00000130-135 (12/12/16 Email, Kushner to Berkowitz).

And there’s a detail made public since the Mueller Report that suggests Kushner may not have been entirely candid in his interview: in testimony before Congress last year, Rex Tillerson disputed a key detail from Kushner’s testimony — that he had passed along a document from Dmitriev shared via Rick Gerson. There’s no record Mueller interviewed Tillerson.

To be fair, DOJ has released two details not included in the Mueller Report, which by the standards of this FOIA release is generous. Yet Jared also happens to be a top Trump advisor — the beneficiary of absurd levels of nepotism — involved in every aspect of foreign policy. He could not obtain security clearance on his own. And the details of these FOIA releases suggest that’s because it’s not yet clear what happened with Russian efforts to cultivate him during the election.

Given how the Mueller Report leaves out key details of Kushner’s vulnerability to such cultivation, DOJ should be forced to release more of this 302.

Roger Stone Accuses Jerome Corsi of Lying When He Testified Stone’s Cover Story Was a Cover Story

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In a conflict between some of the worst people in the world, Roger Stone, Jerome Corsi, and Larry Klayman have all been in the news of late. That’s because on February 12 and 13, Klayman deposed Stone in lawsuits he and Corsi filed against Stone for defamation — basically, for tarnishing their reputation with the frothy right. I tweeted out some of the highlights of the painful deposition here. Politico edited some highlights of the video for this story. Then last night, Judge Timothy Kelly dismissed Corsi’s suit without prejudice, finding venue improper (meaning Corsi can refile it in Florida).

On top of some crazy, bitter exchanges there are some interesting details, such as that Jack Posobiec is the person who introduced Cassandra Fairbanks to Stone during the 2016 campaign, though Stone claims not to remember when that happened. There are also some curious claims (such as, at February 12 16:10 and following, that Stone has rarely deleted any comms); during Stone’s trial, an FBI agent testified they had never obtained any texts Stone sent from roughly November 2016 to November 2017, though Klayman asked Stone whether he had lost or replaced a phone that might address that, except he focused on just the last two years. There’s some debate over how to pronounce “Judas Iscariot” and “Nevada.” There’s a lot of potty mouth. There are claims Stone made — under oath, days before being sentenced for lying to Congress — that probably wouldn’t stand up to the scrutiny of a prosecutor with a grand jury.

But I wanted to examine a key issue behind the dispute. In his lawsuit, Corsi alleged that Stone defamed him by falsely accusing him of lying about writing a report that would serve as a cover story for his August 21, 2016 tweet about John Podesta.

18. At 2:27 in the InfoWars Video, Defendant Stone falsely and misleadingly publishes that, “He (Corsi) was perfectly willing to lie, to perjure himself saying that a memo that he had wrote me was written on the 30th for the purposes of cover-up…. which is further proof that Jerry lied under oath.”

19. At 2:55 in the InfoWars Video, Defendant Stone falsely and misleadingly publishes, “and then states that I knew about John Podesta’s emails being stolen in advance, the only proof of that is Jerry’s feeble alcohol affected memory – it’s a lie….”

20. At 3:35 in the InfoWars Video, Defendant Stone falsely and misleadingly publishes that “Jerry was prepared to stab a principle Trump supporter in the back, he was perfectly prepared to bear false witness against me, even though I had done nothing in my entire life other than help him.”

That is, Corsi’s lawsuit claims that Stone falsely accused him of perjuring himself when he gave damning testimony about Stone to Mueller’s prosecutors; that false accusation, Corsi argues, has damaged his reputation with the frothy right.

The dispute pertains to a report Corsi wrote — which Stone submitted (PDF 39) as part of the materials he shared with the House Intelligence Committee, and which is dated August 31, 2016, not August 30 — explaining why he and Corsi had been focused on Podesta on August 21 when Stone tweeted that it would soon be Podestas’ time in the barrel.

Here’s how Corsi explained that report in his book.

In my late evening telephone call with Stone on August 30, 2016, I suggested Stone could use me as an excuse, claiming my research on Podesta and Russia was the basis for Stone’s prediction that Podesta would soon be in the pickle barrel. I knew this was a cover-story, in effect not true, since I recalled telling Stone earlier in August that Assange had Podesta emails that he planned to drop as the “October Surprise,” calculated by Assange to deliver a knock-out blow to Hillary Clinton’s presidential aspirations.

On my birthday, August 31, 2016, I emailed to stone at 4:49 p.m. EST a nine page background memorandum on John Podesta that I had written that day at Stone’s request. I couched the Podesta background paper as a rejoinder Stone could use to counter a report CNN published August 15, 2016, entitled “Manafort named in Ukrainian probe into millions in secret cash.”30 The CNN article highlighted the FBI had begun an investigation of former Trump campaign chairman Paul Manafort for his financial dealings regarding the consulting he had conducted for former Ukraine president Victor Yanukovych.

At Roger’s request, after a telephone conversation in March 2017 that I vaguely recall from memory—I have no recording or notes from the conversation—Roger asked me to write an article how he got his information for his Twitter post on August 21, 2016. Roger and I agreed once again that the Tweet was unspecific as to why Stone believed Podesta would be in the pickle barrel. That allowed us once again to roll out the cover-story that Stone based his comment on background information I provided Stone from public source materials on Podesta’s financial dealings in Russia while Hillary was secretary of state.

[snip]

Stone used the cover-story excuse again when he testified under oath to the House Intelligence Committee on September 26, 2017. In that testimony, Stone claimed his “pickle barrel” Tweet was based on “a comprehensive, early August opposition research briefing provided to me by investigative journalist, Dr. Jerome Corsi, which I then asked him to memorialize in a memo that he sent me on August 31st, all of which was culled from public records.” To stress the point, Stone attached to his testimony a copy of my background research memorandum on Podesta.

In the deposition (at February 12 at 13:14 and following) Stone defended against those claims by affirming under oath that Corsi’s testimony to Mueller’s prosecutors and the grand jury was false.

Klayman: What statement did Dr. Corsi ever make that stabbed you in the back?

Stone: The previous one that you just stated, for example. Regarding a memo that he incorrectly said that he wrote to give me a cover story at a time that I needed no cover story because the controversy regarding John Podesta’s emails, which was never mentioned in the indictment whatsoever, would not happen until six weeks after he had written said memo. So it’s just patently false.

Klayman: But you were not indicted by the Special Counsel for a cover story. You were indicted because you testified falsely to Congress, correct?

Robert Buschel (Stone’s attorney): Let’s not get into the indictments and the whole trial thing. The answer to your question, um, you know what he was indicted for.

Klayman: I’ll ask the question a different way. There’s no aspect of your indictment that deals with a cover story by Doctor Corsi on your behalf.

Buschel: It calls for a legal opinion.

Stone: No. But he certainly said that on numerous interviews and in public. So I certainly have the right to respond to it. It’s not true.

Stone makes similar comments after 16:05.

It did get quite a bit of press. As you recall Mr. Corsi went out and did a press tour in which he claimed that he had created some memo as a cover story. I suspect that that was suggested to him because it just wasn’t true.

[snip]

He portrayed a number of falsehoods in those interviews, which is certainly reason to believe that somebody had suggested this falsehood to him, since it is chronologically impossible for him to have created a memo as a cover story because there was nothing to cover.

Ultimately, we’ve got a rat-fucker and a hoaxster, arguing about which one of them perjured themselves (Corsi in the Mueller grand jury or Stone in this sworn deposition) regarding this report.

The record, though, backs Corsi’s story. Even though prosecutors presented little evidence involving Corsi at trial (both sides subpoenaed Corsi but neither side put him on the stand), the exhibits did include several pieces that suggest something substantive did occur on August 15, the date Corsi’s alleged cover story would explain away, and the first time Stone ever mentioned Podesta in a tweet.

  • July 25, 2016 Stone email to Corsi telling him to “Get to Assange” at the embassy to “get the pending wikileaks emails”
  • July 31, 2016 Stone email to Corsi telling him to call MON (August 1) and that Malloch should see Assange
  • August 2, 2016 Corsi email to Stone explaining “word is friend in embassy plans 2 more dumps. One shortly after I’m back. 2nd in Oct. … Time to let more than Podesta to be exposed as in bed with enemy if they are not ready to drop HRC.”
  • August 13, 2016 Corsi text to Stone directing, “I’m now back from Italy. Give me a call when you can.”
  • August 15, 2016 Corsi text to Stone directing, “Give me a call today if you can. Despite MSM drumroll that HRC is already elected, it’s not over yet. More to come than anyone realizes.”
  • August 15, 2016 Corsi email to Stone repeating the same message he had texted, “Give me a call today if you can. Despite MSM drumroll that HRC is already elected, it’s not over yet. More to come than anyone realizes.”

In addition, there were exhibits that made it clear Corsi was aware that Stone was covering things up:

  • March 24, 2017 email from Stone to Corsi (and Gloria Borger) forwarding the letter Robert Buschel sent to HPSCI; Buschel sent this letter two days after Corsi and Stone spoke about publishing the cover story and the day after Corsi did so
  • November 30, 2017 email thread between Corsi and Stone, in which Corsi responded to Stone’s request that Corsi write about Stone’s claim that Credico was his back channel by advising, “Are you sure you want to make something out of this now? … You may be defending ourself too much–raising new questions that will fuel new inquiries. This may be a time to say less, not more.”
  • April 3, 2018 email from Stone lawyer Grant Smith to Stone and cc’ing Corsi explaining that “At Roger’s request” he was forwarding “the only 2 emails on the subject between the two of you;” the subject line was “Emails about Finding information,” attached the July 25 and July 31, 2016 emails, and were sent in the wake of a surprised Ted Malloch interview and one day before Stone insisted to Credico he was the source of everything Stone learned about the WikiLeaks disclosures

Prosecutors would also have had an email Stone sent Corsi on August 30, 2016, record of Corsi’s call in response, and Corsi’s Google searches showing that he didn’t start the research for the report until after that exchange. So contrary to later claims from Corsi, prosecutors had proof that he didn’t start the report until after Stone’s August 21, 2016 tweet. Plus, before the WikiLeaks files were released in October 2016, Corsi seemed to know what they’d contain. Corsi and Stone would use that August 2016 report twice more to try to explain away Stone’s seeming advance knowledge.

Perhaps most interesting, however, is Corsi’s Mueller testimony on November 1, 2018 (PDF 34) that a column he wrote on October 6, 2016 — seemingly anticipating that WikiLeaks would soon dump emails including details about John Podesta’s ties to Joule holdings — was an attempt to force Assange to publish the emails he had not released on October 4, 2016.

Corsi published the August 31, 2016 memo on October 6, 2016. At that time, he still held himself out as the connection to WikiLeaks. The trigger for the release of the article was the publication of an article about [Paul] Manafort and [Viktor] Yanukovych. Corsi wanted to counter it with a story about Podesta, but he really wanted to provide stimulus to Assange to release whatever he had on Podesta. Corsi was angry with Assange for not releasing emails on October 4, 2016.

This was a column that got sent to the campaign between the time it was posted and when WikiLeaks dumped the emails. Posting a story on Podesta wouldn’t really “provide stimulus to Assange to release whatever he had on Podesta” unless Corsi knew that what he had pertained to Podesta.

Two of the most shameless right wing liars are in a nasty fight that — in another world — could have real legal consequences over what the two agreed to cover up with a series of lies told over three years ago.

Jack Burkman and Jacob Wohl’s Pathetic Disinformation May Finally Matter

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Yesterday, Jack Burkman (he of the press conference with his fly down) and Jacob Wohl (he of the precocious financial fraud) had a press conference at CPAC yesterday to spew disinformation.

Again.

They claimed they were releasing all sealed documents from the Roger Stone trial, not just juror questionnaires, but also grand jury testimony. Their statements were inconsistent about whether, by “sealed documents,” they meant everything that had been loaded onto the docket (which might include just Steve Bannon and Randy Credico’s grand jury transcript, both of which were litigated before the trial), or everything released in discovery to Stone.

They purported to be journalists exposing a miscarriage of justice of an American hero, by which they meant Roger Stone.

They were given to us, they did not come from Roger Stone, they did not come from anyone on his defense team, we’ve never met Roger Stone. … What happened was court packing.

They claimed they had a journalistic duty to release these documents to show a systematic conspiracy, led by Judge Amy Berman Jackson, against Stone, to pack the jury. They claimed, “Not a single juror” on Stone’s trial, “watches Fox News,” that they are instead “religious Rachel Maddow viewers.” They also claimed one could never have a lawyer on a jury.

The documents released (which I won’t link) demonstrated, once again, that their implementation was embarrassingly shoddy and their claims were false. All they released were juror questionnaires, and they didn’t release the questionnaires all 12 jurors. They uploaded the questionnaire of one juror twice (making ten total). Those jurors described their media diet this way:

  • occasionally a CNN headline
  • DC Fox 5 News
  • Fox 5 News
  • New York Times, established news sources that appear in my Google Feed (WSJ, Washington Post, etc.)
  • Wall Street Journal
  • NYT, Washington Post, NPR
  • Washington Post, NPR
  • Washington Post, Facebook, Twitter
  • Washington Post, PBS Newswire, NPR
  • Washington Post, Apple News Service, Twitter, Facebook, New York Times, CNN, Politico, The Hill, CBS News, “not regularly, but CNN Shows (Anderson Cooper), MSNBC — Rachel Maddow/Chris Hayes

Admittedly, local Fox News is not the same thing as Fox News Channel, but at least two of the jurors listed it as their primary news diet, a refutation of Wohl and Burkman’s entire premise.

The last bullet — the only one specifically naming Rachel Maddow — is from the foreperson, the woman on whose selection Stone based his bid for a new trial (and for more juror information on which Mike Cernovich is attempting to intervene in Stone’s case). But all the foreperson’s questionnaire shows is that Stone had notice of her liberal news watching diet during voir dire, and his team didn’t choose to disqualify her. That is, they are to blame for her presence on the jury, not ABJ or the DC District Court or anyone but Stone.

Likewise, just four or five jurors said they had heard anything about Stone’s case.  Three who had seen coverage of Stone had generally remembered his arrest (which, given the right wing propaganda suggesting he was ill-treated, would have been helpful to Stone). Again, the foreperson is the one person who commented negatively, describing that he “is accused of inappropriate contact Russian officials in the effort of helping Mr. Trump’s campaign for President.” She is also the person who had the most family members — a niece and a brother — who had been prosecuted for a crime.

Wohl and Burkman claimed that the jury was packed with CIA people and lawyers. In reality, that consisted of two people (including the foreperson) who each said they had a single friend who worked for the FBI, one person whose father had worked for CIA for 2-3 years in the 1960s before the juror was born, and one person whose son is in the Coast Guard.

This is the frothy right’s idea of a Deep State plot against Roger Stone.

Wohl and Burkman did not mention that the juror with the most direct, high level current political connection has a spouse who appears to work for a conservative Republican Senator.

In short, like all their hoaxes, this one was badly executed and based on lies.

But the poor execution may be the downfall. The released documents don’t actually reveal anything beyond what had already been identified during the initial frenzy against he foreperson (and since the foreperson gave credible responses in the hearing, backed by the testimony of two other jurors who said she was one of the last jurors to vote to convict). But Wohl and Burkman failed to redact the handwritten notes about a potential juror on one of the questionnaires.

This is going to make it easier to identify the potential sources for this document, something that ABJ was already trying to do in the hearing earlier this week.

There is a concerted effort on the part of the frothy right to violate every single norm of jury service, all to discredit a slam-dunk case against Roger Stone that even Bill Barr said was righteous. And for once these shithole hoaxsters may have done some good — in the form of helping the FBI figure out who’s behind it all.

The Carter Page Clauses in the FISA Reform Bill Wouldn’t Help Carter Page

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The House Judiciary Committee has released a mark-up for a bill that would reauthorize Section 215 and make some improvements. It’s not a bad bill. It would:

  • End the Call Detail Record program and prohibit prospective call record collection
  • Include notice for 215 collection
  • End FBI’s exemption for reporting requirements
  • Improve the FISA amicus
  • Impose deadlines for releasing FISA orders

But the bill almost certainly doesn’t accomplish the things it first set out to do, to provide added protections for someone like Carter Page. It does this in two ways.

First, it requires the Privacy and Civil Liberties Oversight Board to complete a report on how much First Amendment activities or race, ethnicity, national origin, religion, or sex are used in targeting decisions under FISA.

SEC. 303. REPORT ON USE OF FISA AUTHORITIES REGARDING PROTECTED ACTIVITIES AND PROTECTED CLASSES.

(a) REPORT.—Not later than one year after the date of the enactment of this Act, the Privacy and Civil Liberties Oversight Board shall make publicly available, to the extent practicable, a report on—

(1) the extent to which the activities and protected classes described in subsection (b) are used to support targeting decisions in the use of authorities pursuant to the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.); and

(2) the impact of the use of such authorities on such activities and protected classes.

(b) ACTIVITIES AND PROTECTED CLASSES DESCRIBED.—The activities and protected classes described in this subsection are the following:

(1) Activities and expression protected by the First Amendment to the Constitution of the United States.

(2) Race, ethnicity, national origin, religious affiliation, sex, and any other protected characteristic determined appropriate by the Board.

(c) FORM.—In addition to the report made publicly available under subsection (a), the Board may submit to the appropriate congressional committees a classified annex.

One would imagine that Carter Page, whom the Republicans think was targeted because he volunteered for the Trump campaign, would be among the people bill drafters had in mind for First Amendment protect activities.

Except he wouldn’t be included, for two reasons.

First, PCLOB’s mandate is limited to counterterrorism programs. That didn’t matter for their very good Section 215 report, because they were examining only the CDR program, which itself was limited to terrorism (and Iran).

But it did matter for the Section 702 report. In fact, PCLOB ignored some of the most problematic practices under Section 702, conducted under the guise of cybersecurity, because that’s outside their mandate! It also didn’t explore the impact of NSA’s too-broad definition of targeting under the Foreign Government certificate.

In this case, unless you expand the scope of PCLOB, then this report would only report on the targets of terrorism FISA activity, not foreign intelligence FISA activity, and so not people like Carter Page.

Carter Page would also not be covered under this and a clause attempting to ensure the FISA amicus reviews applications with any First Amendment component.

(a) EXPANSION OF APPOINTMENT AUTHORITY.— Subparagraph (A) of section 103(i)(2) (50 U.S.C. 1803(i)(2)) is amended to read as follows:

‘‘(A) shall appoint an individual who has been designated under paragraph (1) to serve as amicus curiae to assist such court in the consideration of any application for an order or review that, in the opinion of the court—

‘‘(i) presents a novel or significant interpretation of the law, unless the court issues a finding that such appointment is 16 not appropriate; or

‘‘(ii) presents significant concerns with respect to the activities of a United States person that are protected by the first amendment to the Constitution, unless the court issues a finding that such appointment is not appropriate; and’’.

Here, the problem has to do with the investigation into Carter Page, and the way I understand FISA was written originally.

As I note in this post, DOJ IG didn’t figure out until 11 days after it published the Carter Page IG Report that the FBI used (and may still use) the same investigative code for both FARA — which by definition has a political component — and 18 USC 951 — which doesn’t need to have. The report as a whole had a long discussion of the standard to get beyond First Amendment considerations, as if all four Trump flunkies targeted under Crossfire Hurricane would qualify.

FISA provides that a U.S. person may not be found to be a foreign power or an agent of a foreign power solely upon the basis of activities protected by the First Amendment. 129 Congress added this language to reinforce that lawful political activities may not serve as the only basis for a probable cause finding, recognizing that “there may often be a narrow line between covert action and lawful activities undertaken by Americans in the exercise of the [F]irst [A]mendment rights,” particularly between legitimate political activity and “other clandestine intelligence activities. “130 The Report by SSCI accompanying the passage of FISA states that there must be “willful” deception about the origin or intent of political activity to support a finding that it constitutes “other clandestine intelligence activities”:

If…foreign intelligence services hide behind the cover of some person or organization in order to influence American political events and deceive Americans into believing that the opinions or influence are of domestic origin and initiative and such deception is willfully maintained in violation of the Foreign Agents Registration Act, then electronic surveillance might be justified under [“other clandestine intelligence activities”] if all the other criteria of [FISA] were met. 131

129 See 50 U.S.C. §§ 1805(a)(2)(A), 1824(a)(2)(A).

130 H. Rep. 95-1283 at 41, 79-80; FISA guidance at 7-8; see also Rosen, 447 F. Supp. 2d at 547-48 (probable cause finding may be based partly on First Amendment protected activity).

131 See S. Rep. 95-701 at 24-25. The Foreign Agents Registration Act, 22 U.S.C. § 611 et seq., is a disclosure statute that requires persons acting as agents of foreign principals such as a foreign government or foreign political party in a political or quasi-political capacity to make periodic public disclosure of their relationship with the foreign principal, as well as activities, receipts and disbursements in support of those activities.

Except it miscited the reference to the Senate Report. The citation, as written, goes to a passage of the Senate Report that says that if a potential target is acting under the direction of an intelligence service of a foreign power, they can be targeted even for their political activities.

It is the intent of this requirement that even if there is some substantial contact between domestic groups or individual citizens and a foreign power, as defined in this bill, no electronic surveillance wider this subparagraph may be authorized unless the American is acting under the direction of an intelligence service of a foreign power.

The investigation into Carter Page started because he kept sharing non-public economic information with people he knew to be Russian intelligence officers (it was probably started as some kind of economic espionage case).

That is, even before he joined the campaign, FBI had gotten beyond the bar that would treat Page’s targeting as a First Amendment concern, because the entire suspicion stemmed from Page’s explicit willingness to act at the direction of Russia’s intelligence service.

Don’t get me wrong. These are both improvements, with the amicus review for First Amendment activities especially (indeed, I suspect that’s what some of the applications that FBI withdrew in recent years pertained to).

But to do what this bill wants to do on the PCLOB report, you’d have to expand the mandate of PCLOB to cover hacking and spying — something that should happen in any case. That’s especially crucial in this case, given that one of the ethnicities most affected by FISA are Chinese Americans, but as suspected spies, not as suspected terrorists.

And if you want Carter Page to get these enhanced protections, you’d need to change how working for a foreign country affects the First Amendment calculation on FISA.

A Discussion of a Pardon for Assange Is Why Stone’s Threats against Credico Worked

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Given events of the last several days, I want to return to an exchange from Roger Stone trial. It came during Aaron Zelinksy’s questioning of Randy Credico. The exchange started with a discussion of a May 21, 2018 email exchange between Stone and Credico.

It started when Credico told Stone “you should have just been honest with the house intel committee… you opened yourself up to perjury charges like an idiot…”

Stone responded by threatening Margaret Kunstler.

You are so full of shit. You got nothing. Keep running your mouth and I’ll file a bar complaint against your friend Margaret.

Without any more context, Credico responded,

Go right ahead she’s no Assange lawyer never has been…

Several months earlier, Stone had threatened to expose that, in September 2016, Credico had forwarded a Stone request to find out of Assange had any emails relating to Libya and R.K. Paul to Kunstler.

But the questioning in the trial suggested this May 2018 threat related to something else. After getting Credico to read through the May 2018 email, Zelisnky immediately pivoted to something else: how Credico put Stone in touch with Kunstler in 2016 to discuss a pardon for Assange.

Q. What did you write to Mr. Stone on May 21st, 2018?

A. “Go right ahead. She’s not Assange’s lawyer.”

Q. I’m sorry. Below that. Let’s start at the first message, “You should have.” All the way at the bottom.

A. Where? Where am I? Here, “You should have.”

“You should have just been honest with the House Intel Committee. You’ve opened yourself up to perjury charges like an idiot. You have different versions. Maybe you need to get into rehab and get that memory straight.”

Q. What did Mr. Stone respond?

A. I don’t see it here.

Q. Just above that, do you see —

A. Oh, yes. “You are so full of S-H-I-T. You got nothing. Keep running your mouth and I’ll file a bar complaint against your friend Margaret.”

Q. And when he says “your friend Margaret,” who is he referring to?

A. Margaret Ratner Kunstler.

Q. Had you put Mr. Stone directly in touch with Ms. Kunstler after the election?

A. Yes, I did.

Q. And why had you done that?

A. Well, sometime after the election, he wanted me to contact Mrs. Kunstler. He called me up and said that he had spoken to Judge Napolitano about getting Julian Assange a pardon and needed to talk to Mrs. Kunstler about it. So I said, Okay. And I sat on it. And I told her–I told her–she didn’t act on it. And then, eventually, she did, and they had a conversation.

Q. And at this time period, in May of 2018, how did you feel about having put Ms. Kunstler directly in touch with Mr. Stone?

A. I was — I was ashamed of myself that I had done that. I should have never done that, you know. I don’t blame him; I blame me for doing that.

Q. For the remainder of 2018, did you continue to be concerned about Mr. Stone?

A. Remainder of 2018?

Q. Yes, sir.

A. Well, yes, I did.

Q. Why were you concerned about Mr. Stone?

A. Well, this is it, right here. This is the crux of it, is bringing Margaret into this, Mrs. Kunstler into it. That was the crux of it.

The suggestion — at least in the context of this particularly threat — is that it was the late 2016 contact, not the September 2016 one, that Credico primarily worried about.

For what it’s worth, this is not the only time Credico denied that Kunstler was Assange’s lawyer (even though he bragged about that colloquially during the election). During cross-examination from Robert Buschel, Credico dodged mightily, even claiming — in a statement that might put complaints about surveillance of Assange at the Ecuadorian embassy in a different light — that Assange has “about 1,000 lawyers.” Though ultimately Credico said that Kunstler represented Sarah Harrison, not Assange.

Q. Margaret Kunstler is one of WikiLeaks’s lawyers?

A. You’ll let — she’s going to have to describe her role as a — what her role is with WikiLeaks. You know, I don’t — he has — Julian Assange has about 1,000 lawyers. You know, Michael Ratner was one of his lawyers. Alan Dershowitz was one of his lawyers.

Q. Thank you.

A. There are a lot of lawyers. All right? But, that — you know, who’s a lawyer —

THE COURT: The question is, do you know —

THE WITNESS: I don’t consider —

THE COURT: — do you have personal —

THE WITNESS: — her to be his lawyer. I consider her to be — to know people, be part of a team.

BY MR. BUSCHEL: Q. That was —

A. Yes.

Q. — giving legal advice to WikiLeaks?

A. I don’t know if they gave to WikiLeaks or somebody else. I think it was somebody else, Sarah Harrison, maybe, but not — I don’t think she was giving legal advice.

That’s consistent with what Kunstler herself testified, though she also said that she “sometimes represented WikiLeaks.”

Q. Who have you represented who is connected to WikiLeaks?

A. I have represented Sarah Harrison. I still represent Sarah Harrison. She was — did work at WikiLeaks, but she no longer does.

Q. How long had you represented her?

A. For about four and a half years.

Q. How did Ms. Harrison become your client?

A. She became my client because the lawyers representing Mr. Assange decided that it would be helpful to have a second lawyer for Ms. Harrison, and I was asked to do that.

Q. Do you know who the founder of WikiLeaks is?

A. Yes.

Q. Who is it?

A. Julian Assange.

Q. Have you, as an attorney, ever represented Mr. Assange?

A. Only to the extent that I sometimes represented WikiLeaks, so it kind of overlaps. But technically, I don’t know.

Q. Have you ever spoken with Mr. Assange?

A. Yes.

Q. How often have you spoken with him?

A. I think about a total of under ten times.

Q. When is the last time that you have spoken with Mr. Assange, if you can remember?

A. Probably the end of 1918.

Q. I’m sorry, do you mean 2018?

A. Yes, I’m sorry, 2018.

So something about what happened in late 2016 served as a point of leverage over Credico.

As I have noted, Stone used Credico’s shared support for a pardon for Assange as leverage through early January 2018, by which point Stone’s buddy’s government had charged Assange as part of a bid to stave off an Ecuadorian-Russian exfiltration attempt.

Right in the middle of Credico’s claims about what WikiLeaks was up to in early October 2016, for example, on October 3, he pushed Stone to get Trump to back asylum for Assange.

Then there are the exchanges on the topic that MoJo reported on a year ago from early January 2018.

In the wake of Stone’s successful effort to get Credico to plead the Fifth, the President’s rat-fucker suggested that if Credico publicly revealed that he couldn’t be Stone’s back channel, it might screw up efforts he claimed he was making to get Assange a pardon.

They resumed the discussion about a pardon several days later, when Stone sent Credico Jerome Corsi’s story on Ecuador’s grant of a diplomatic passport to Assange.

Remarkably, given what has transpired since, Credico informed Stone that the British government was not honoring the diplomatic passport, observed that “Infowars ” — which in this case would be Corsi — “doesn’t know what they’re talking about,” then taunted, ‘Maybe your back Channel knows more than I do.”

The current operative story, of course, is that Corsi was the backchannel, though Credico wouldn’t have known that at the time.

It’s certainly possible that Stone was blowing smoke, raising something he knew Credico cared deeply about, pardoning Assange, to get him to toe the line. It’s likely, too, he was just taking reporting on efforts made in late 2017 to liberate Assange and claiming credit for it.

But at the very least, it shows that Stone used a pardon for Assange — something Credico still spends a lot of time pushing — as leverage to try to get Credico to sustain his cover story. It doesn’t explain why that point of leverage was so effective, though.

The Frothy Right Is Complaining that Amy Berman Jackson Sentenced Roger Stone to 57% of Lower Guidelines

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In the aftermath of the news of Roger Stone’s sentence yesterday, some of DOJ’s beat journalists are doing irresponsible pieces giving Bill Barr’s close associates anonymity to lie, with no pushback, about what happened.

Another Justice Department official called Stone’s sentence a “vindication” of the attorney general’s decision last week to insert himself into the process, calling for a revised sentencing memorandum that undercut the line prosecutors’ prior recommendation of seven to nine years in prison. Four prosecutors quit the Stone case over the disagreement, and current and former Justice Department officials grew alarmed Trump was short-circuiting the law enforcement agency’s traditional independence. More than 2,600 former employees have signed onto a letter calling on Barr to resign over his handling of the matter.

Judge Amy Berman Jackson in no way vindicated Bill Barr’s intervention, and any experienced DOJ reporter passing on the claim unchallenged is doing their readers a gross disservice.

Worse still, confusion about what happened yesterday has permitted the frothy right to attack ABJ for what was a lenient sentence.

So I’d like to show how ABJ came up with her sentence. It shows that ABJ sentenced Stone to 57% of the sentence she judged the guidelines call for.

Probation Recommendation: 70-87 months

Between the original sentencing memo and Stone’s own memo, we can obtain what probation initially recommended. It started with a base offense level for Stone’s Obstruction, False Statements, and Witness Tampering of 14 (which would result in a 15 to 21 month guidelines sentence). Then it added four enhancements (Stone even cites the paragraphs of the presentencing report where Probation recommended these enhancements). First, it called for an 8-level enhancement under U.S.S.G. §2J1.2(b)(1)(B), which reads (PDF 243):

If the offense involved causing or threatening to cause physical injury to a person, or property damage, in order to obstruct the administration of justice, increase by 8 levels.

Next, it called for a 3-level enhancement for substantial interference with the administration of justice under U.S.S.G. §2J1.2(b)(1)(2) (meaning, the obstruction worked):

If the offense resulted in substantial interference with the administration of justice, increase by 3 levels.

Probation called for a 2-level enhancement under U.S.S.G. §2J1.2(b)(3)(C) for the extensive nature of Stone’s obstruction:

If the offense … (C) was otherwise extensive in scope, planning, or preparation, increase by 2 levels.

Given a footnote in Stone’s memo (and something ABJ said in the hearing yesterday), it appears that the government objected to the original January 16 recommendation from the Probation office and convinced them to apply this enhancement.

Obstruction of Justice 2 U.S.S.G. §2J1.2(b)(3)(C) 2 level increase ¶77

2 Government’s Objection to Presentence Investigation Report, dated January 30, 2020.

Finally, it called for a 2-level enhancement U.S.S.G. §3C1.1 2 for obstruction of this proceeding (meaning, his prosecution for the original obstruction charge; this is at PDF 367).

If (1) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (2) the obstructive conduct related to (A) the defendant’s offense of conviction and any relevant conduct; or (B) a closely related offense, increase the offense level by 2 levels.

The sentencing table can be found at PDF 415. It provides a range of 87 to 108 months for a first time offender, as Stone is.

According to the transcript, however, the final recommendation did not apply the 2-level enhancement for the extensive obstruction. That provides a range for 70-87 months.

Prosecution Recommendation: 87-108 months

In May 2017, Jeff Sessions issued an order stating that “prosecutors should charge and pursue the most serious, readily provable offense,” which are, “by definition … those that carry the most substantial guidelines sentence.” It also stated that, “In most cases, recommending a sentence within the advisory guideline range will be appropriate.”

ABJ noted this policy yesterday in the sentencing hearing.

And that’s what the prosecution team did — recommend the same 87 to 108 months the Probation Office came up with. They justified each of the enhancements in their sentencing memo.

They argued the witness tampering enhancement was justified — even in spite of Randy Credico’s letter asking for leniency — because Credico still expressed fear that Stone’s associates might respond to his threats by attacking him, and because the threat itself triggers the enhancement.

Pursuant to U.S.S.G. § 2J1.2(b)(1)(B), eight levels are added because the offense “involved causing or threatening to cause physical injury to a person, or property damage, in order to obstruct the administration of justice.” As detailed above, as part of Stone’s campaign to keep Credico silent, Stone told Credico in writing, “Prepare to die, cocksucker.” Stone also threatened (again in writing) to “take that dog away from you.” Stone may point to the letter submitted by Credico and argue that he did not have a serious plan to harm Credico or that Credico did not seriously believe that Stone would follow through on his threats. But Credico testified that Stone’s threats concerned him because he was worried that Stone’s words, if repeated in public, might make “other people get ideas.” Tr. 11/8/19, at 795.

In any event, it is the threat itself, not the likelihood of carrying out the threat, that triggers the enhancement. Endeavoring to tamper with a witness can involve a wide range of conduct. This enhancement recognizes that when the conduct involves threats of injury or property damage, rather than simple persuasion for example, the base offense level does not accurately capture the seriousness of the crime. To apply the enhancement, there is no “additional ‘seriousness’ requirement beyond the fact of a violent threat.” See United States v. Plumley, 207 F.3d 1086, 1089-1091 (8th Cir. 2000) (applying § 2J1.2(b)(1)(B) to a defendant who told coconspirators to “‘keep our mouth shut,’ because if anyone cooperated with the police he would ‘kick our ass’”); United States v. Bakhtairi, 714 F.3d 1057, 1061 (8th Cir. 2013) (holding there was no seriousness requirement and applying § 2J1.2(b)(1) to a defendant who wrote a menacing email, displayed a loaded rifle to a law partner, and doctored photographs of witnesses children to “add . . . crosshairs”); United States v. Smith, 387 F.3d 826, (9th Cir. 2004) (applying § 2J1.2(b)(1)(B) to a defendant who threatened to kill a witness and “kick [her] ass,” and noting that § 2J1.2(b)(1) does not contain a “seriousness requirement”).

Prosecutors argued the 3-level enhancement for substantial interference was justified because Stone’s obstruction led HPSCI not to call Jerome Corsi and not to subpoena Corsi and Credico for documents, both of which led to errors in the HPSCI report.

Pursuant to U.S.S.G. § 2J1.2(b)(2), three levels are added because the offense resulted in substantial interference with the administration of justice. Because of Stone’s conduct, the House Intelligence Committee never received important documents, never heard from Credico (who pled the Fifth), and never heard from Corsi (who was never identified to the Committee as the real “back-channel” that Stone had referenced in August 2016). The Committee’s report even wrongly stated that there was no evidence contradicting Stone’s claim that all his information about WikiLeaks was from publicly available sources.

Prosecutors argued that the multi-year effort Stone engaged in merited the 2-level enhancement because of his obstruction’s extensive scope.

Pursuant to U.S.S.G. § 2B1.2(b)(3)(C), two levels are added because the offense was otherwise extensive in scope, planning, or preparation. Stone engaged in a multi-year scheme involving (1) false statements in sworn testimony; (2) the concealment of important documentary evidence; (3) further lies in a written submission to Congress; and (4) a relentless and elaborate campaign to silence Credico that involved cajoling, flattering, crafting forged documents, badgering, and threatening Credico’s reputation, friend, life, and dog. Stone’s efforts were as extensive, if not more extensive, than those of other defendants who received this two-level enhancement at sentencing. See, e.g., United States v. Petruk, 836 F.3d 974 (8th Cir. 2016) (enlisting a friend to create a false alibi and scripting a false confession); United States v. Jensen, 248 Fed. Appx. 849 (10th Cir. 2007) (giving advance notice of testing and falsifying results of tests).

Finally, prosecutors argued for a 2-level enhancement for all the violations of ABJ’s orders during the trial, notably his implicit threat against her.

Finally, pursuant to U.S.S.G. § 3C1.1, two levels are added because the defendant “willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the prosecution of the instant offense of conviction.” Shortly after the case was indicted, Stone posted an image of the presiding judge with a crosshair next to her head. In a hearing to address, among other things, Stone’s ongoing pretrial release, Stone gave sworn testimony about this matter that was not credible. Stone then repeatedly violated a more specific court order by posting messages on social media about matters related to the case.

This enhancement is warranted based on that conduct. See U.S.S.G. § 3C1.C Cmt. 4(F) (“providing materially false information to a magistrate or judge”); see, e.g., United States v. Lassequ, 806 F.3d 618, 625 (1st Cir. 2015) (“Providing false information to a judge in the course of a bail hearing can serve as a basis for the obstruction of justice enhancement.”); United States v. Jones, 911 F. Supp. 54 (S.D.N.Y. 1996) (applying §3C1.1 enhancement to a defendant who submitted false information at hearing on modifying defendant’s conditions of release).

Prosecutors then showed how, under the guidelines, this adds up to an 87 to 108 month sentence.

Accordingly, Stone’s total offense level is 29 (14 + 8 + 3 + 2 + 2), and his Criminal History Category is I. His Guidelines Range is therefore 87-108 months.

Barr Recommendation: 30-46 months

In addition to violating DOJ policy of not deviating downwards from the Probation recommendation, the memo submitted under John Crabb Jr’s name (which his statements yesterday strongly indicate he did not write) offered little justification for why it was deviating from the Probation Office recommendation and never ultimately made a recommendation. But the memo suggested two of the enhancements — the 8-level enhancement for making a threat, and the 2-level enhancement for threatening ABJ — should not apply.

The memo suggested the 8-level enhancement shouldn’t apply, first, because doing so would double Stone’s exposure.

Notably, however, the Sentencing Guidelines enhancements in this case—while perhaps technically applicable— more than double the defendant’s total offense level and, as a result, disproportionately escalate the defendant’s sentencing exposure to an offense level of 29, which typically applies in cases involving violent offenses, such as armed robbery, not obstruction cases. Cf. U.S.S.G. § 2B3.1(a)-(b). As explained below, removing these enhancements would have a significant effect on the defendant’s Guidelines range. For example, if the Court were not to apply the eight-level enhancement for threatening a witness with physical injury, it would result in the defendant receiving an advisory Guidelines range of 37 to 46 months, which as explained below is more in line with the typical sentences imposed in obstruction cases.

It pointed to Credico’s letter to justify ignoring it.

First, as noted above, the most serious sentencing enhancement in this case—the eightlevel enhancement under Section 2J1.2(b)(1)(B) for “threatening to cause physical injury”—has been disputed by the victim of that threat, Randy Credico, who asserts that he did not perceive a genuine threat from the defendant but rather stated that “I never in any way felt that Stone himself posed a direct physical threat to me or my dog.” (ECF No. 273). While Mr. Credico’s subjective beliefs are not dispositive as to this enhancement, the Court may consider them when assessing the impact of applying the enhancement – particularly given the significant impact that the enhancement has on the defendant’s total Guidelines range.

Then, Barr’s memo argued (and this is the truly outrageous argument) that Stone’s attempts to obstruct his own prosecution overlapped with his efforts to obstruct the HPSCI investigation.

Second, the two-level enhancement for obstruction of justice (§ 3C1.1) overlaps to a degree with the offense conduct in this case. Moreover, it is unclear to what extent the Second, the two-level enhancement for obstruction of justice (§ 3C1.1) overlaps to a degree with the offense conduct in this case. Moreover, it is unclear to what extent the

Effectively, this language treated threats against a judge as unworthy of enhancement.

Probably the only part of this memo that really affected ABJ’s sentence was a discussion of avoiding disparities in sentencing, where it mentions Scooter Libby’s 30 month sentence (and Manafort’s obstruction-related sentence, by ABJ, which was just one part of her 7.5 year sentence of him).

Third, the Court must “avoid unwarranted sentencing disparities.” See 18 U.S.C. § 3553(a)(6). In its prior filing, the Government directed the Court’s attention to a non-exhaustive list of witness tampering, false statement, and obstruction of justice cases that resulted in sentences of thirty months (Libby), thirteen months (Manafort), six months (Lavelle), twelve months (Hansen), and thirty-five months (Solofa). While these cases involved lesser offense conduct, the sentences imposed constituted a fraction of the penalty suggested by the advisory Guidelines in this case.

In comments to Lindsey Graham, Bill Barr said he thought the guidelines should say 3.5-4.5 years, slightly more than the guidelines if the witness tampering were removed, but if you eliminate both the witness tampering and obstruction of proceedings enhancement the range would be 30-47 months.

ABJ Guidelines Calculation: 70-87 months

In court yesterday, ABJ started by going through the recommended sentence. Ultimately, she did the following with the guidelines (h/t Andrew Prokop for his great live tweeting):

  • Accepted the 8-level enhancement for witness tampering, but said she’d take Credico’s comments into account
  • Accepted the 3-level enhancement for substantial interference, noting that HPSCI was totally diverted by focusing on Credico
  • Rejected the 2-level enhancement for the extensive nature of Stone’s obstruction (thereby agreeing with the original Probation office recommendation)
  • Accepted the 2-level enhancement for Stone’s obstruction in this prosecution

That works out to a base level of 14 + 8 for the witness tampering threat + 3 for substantial interference + 2 for his obstruction in this prosecution. As ABJ calculated in court yesterday, that amounts to a guidelines offense level of 27, or a guidelines range of 70 to 87 months.

Importantly, these decisions mean ABJ disagreed with both the recommendations made in the Barr memo that she throw out the witness tampering threat and Stone’s interference in this trial (which included the threat against her).

Contrary to what the WaPo lets DOJ claim under cover of anonymity, this in no way vindicates Barr. Rather, it rebukes him, stating that neither of his interventions are valid.

ABJ Sentence: 40 months

Nevertheless, ABJ came up with a sentence of 40 months, a sentence that’s solidly in the range of what Barr wanted (and therefore a sentence he’s on the record as saying is just for Stone’s crimes).

ABJ got there, in part, by taking Credico’s comments into consideration, while still treating Stone’s threat as real. She got there in part by arguing that the sentencing guidelines are “inflated” — something anathema to Bill Barr’s policies at DOJ, and a stance that would say all defendants should be sentenced more leniently, not just Trump’s rat-fucker.

In her sentence, she explicitly said she was ignoring Trump’s comments and comments from the left asking for harsh punishment.

Ultimately, ABJ calculated the guidelines — which she said were inflated (and would be for all defendants) — at 70-87 months. She then sentenced Stone to 57% of the lower end of those guidelines.

And that is what has the frothy right in a tizzy — that she extended Roger Stone the same leniency that she would extend to other defendants, in defiance of Bill Barr’s demands that every defendant not covering up for the President be sentenced harshly.

This is in no way a vindication of Bill Barr. It is also, in no way, abusive.

Update: This has been updated to reflect what the transcript says about the final probation recommendation.

Four Ways Bill Barr Fucked Up the Roger Stone Cover-Up

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Let me say at the outset that I’m not imagining, with this post, that Bill Barr won’t succeed in helping Trump to bury the Russian investigation. The power of the President is breathtaking, Trump will still be able to commute Roger Stone’s sentence, and neither Barr nor Trump have any compunction about abusing power.

Still, Bill Barr really fucked up the cover-up for Roger Stone. He did so in at least four ways:

  • He intervened after prosecutors advised a guidelines sentence (of 7-9 years) when Judge Amy Berman Jackson was never likely to impose that. She ultimately sentenced Stone to 40 months, solidly within the sentence Barr demanded after the fact. In other words, he intervened when he didn’t have to, but by doing so he put himself on the record stating that 40 months was a just sentence.
  • He personally intervened. At the sentencing hearing, ABJ asked John Crabb Jr, the prosecutors whose name was on the revised sentencing memo, what happened. He made it clear that US Attorney Timothy Shea had bought off on the harsher sentence, and said the Attorney General was personally involved. Among other things, this led ABJ to note that it is “unprecedented” for DOJ not to request a guidelines sentence. Crabb also declined to say whether he wrote the revised sentencing memo or not, establishing cause to demand those details.
  • After prosecutors withdrew in response to Barr’s intervention, he went on TV to try to contain the damage. In that appearance, he stated quite clearly that this was a “righteous” prosecution.

BARR: Well, as you know, the Stone case was prosecuted while I was attorney general. And I supported it. I think it was established, he was convicted of obstructing Congress and witness tampering. And I thought that was a righteous prosecution. And I was happy that he was convicted.

  • The whole scandal probably led ABJ to tailor her comments to address it. On top of making clear how outrageous Stone’s obstruction was, she also alluded to the tweets of the President. She ended her statements by saying, “He was not prosecuted, as some have claimed, for standing up for the president. He was prosecuted for covering up for the president.” She backed that by noting Stone’s comment to Randy Credico that he, Stone, couldn’t take the Fifth because it would hurt the President. This establishes a legal record that Stone is going to prison to protect Trump — far stronger than what went in for Scooter Libby, who was also going to prison to protect his superiors.

Add that to Barr’s statements during confirmation that pardoning someone because of their false testimony is obstruction, and when the eventual commutation does come, the record will already be developed that Trump is engaging in obstruction by doing so.

Again, this is not to say that Barr won’t still succeed with this cover-up. But along the way, he did a number of things that will significantly raise the cost of it.

Bill Barr’s Past Statements Say Pardoning Roger Stone Would Be Obstruction

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In a piece on Roger Stone’s sentence today, Politico questions how Bill Barr would regard a Trump pardon for Roger Stone.

How Barr would come down on a Stone pardon remains unclear. He’s a staunch defender of executive power and during his first stint as attorney general under President George H.W. Bush advocated for clemency on behalf of several Reagan-era officials caught up in the Iran-Contra scandal. He ultimately pushed for more pardons than the one Bush handed out to former Defense Secretary Casper Weinberger.

“There were some people arguing just for Weinberger, and I said, ‘No, in for a penny, in for a pound,” Barr said in an oral history to the University of Virginia.

The piece doesn’t examine Barr’s past claimed beliefs, though. And if Barr had a shred of intellectual consistency, he would view a pardon as a crime.

Start with the three times, in his confirmation hearing, where Barr said offering a pardon for false testimony would be obstruction.

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

Barr: No, that would be a crime.

[snip]

Klobuchar: You wrote on page one that a President persuading a person to commit perjury would be obstruction. Is that right?

Barr: [Pause] Yes. Any person who persuades another —

Klobuchar: Okay. You also said that a President or any person convincing a witness to change testimony would be obstruction. Is that right?

Barr: Yes.

[snip]

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

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

Obviously, Barr already reneged on this view when, after reviewing the facts presented in the Mueller Report — which showed Trump’s team coaching witnesses to hew the party line in the context of pardons. It even showed Trump’s own lawyer, Jay Sekulow, helping to write Michael Cohen’s congressional testimony.

Perhaps Barr imagined that because Mike Flynn ended up cooperating with prosecutors, because Mueller didn’t use the word “directed” with Cohen, because a judge only found Paul Manafort lied while he was pretending to cooperate by a preponderance of the evidence standard, those wouldn’t count if and when Trump pardons them. Maybe he believes that because the investigation started in July 2016 was unfair, it’s no biggie if Trump pardons the people first investigated during the election, Flynn and Manafort.

Two things distinguish Stone, though. First, at a moment when he needed to pretend to care about the legitimacy of his intervention, he fully owned this prosecution.

BARR: Well, as you know, the Stone case was prosecuted while I was attorney general. And I supported it. I think it was established, he was convicted of obstructing Congress and witness tampering. And I thought that was a righteous prosecution. And I was happy that he was convicted.

Barr thought this prosecution, for obstruction and false statements, was righteous. It happened under him, not under Mueller. To say this, he buys off on the premise that Stone indeed did obstruct with his lies.

And, of course, Stone lied specifically to protect the president, to avoid explaining all those calls with Trump about WikiLeaks, to avoid describing what role Trump had in any success Stone had in optimizing the release of the John Podesta emails. He even told Randy Credico that he had to plead the Fifth because Stone couldn’t, because of his ties to Trump.

And perhaps still more significant, Roger Stone altered his testimony, in the form of his opening argument at trial, even after the Mueller Report came out to make it consistent with information Jerome Corsi made available while still protecting the secrets that would most implicate him and Trump. To HPSCI, Stone claimed he had one intermediary, who was Credico, at trial, his lawyers claimed he had two, but they both fooled the old rat-fucker about their ties to WikiLeaks.

Neither of those stories are true, they’re both crafted to protect Trump, Stone made the second lies after an extended discussion of how pardons equate to obstruction, and Barr has said Stone’s conviction for telling the lies is righteous.

Mind you, none of that is going to change the fact that Trump will extend clemency to Stone. It probably just means that Barr will invite some journalist he has known for decades and talk about tweets to distract from the fact that Barr is already on the record saying that what comes next is a crime.

DOJ Is Withholding the Mike Flynn 302 Describing How the Campaign Considered Reaching Out to Julian Assange after the Podesta Leaks

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As DOJ continues to respond to the BuzzFeed/CNN Mueller FOIAs by releasing big swaths of 302s (FBI interview reports) almost entirely redacted under b5 (deliberative) exemptions, there are a number of issues on which it is withholding information that are utterly critical to current debates.

For example, Trump renewed his claim the other day that Robert Mueller had interviewed for the FBI job before being named Special Counsel, which he claims presented a conflict. According to the Mueller Report, Steve Bannon, Don McGahn, and Reince Priebus all rebutted that claim, either on the facts or whether it presented a conflict. But Bill Barr’s DOJ has withheld all of McGahn’s 302s, as well as the Bannon one (from October 26, 2018) cited in the Mueller Report on this topic. And DOJ redacted all the substantial discussion of what Reince Priebus told the President about this purported conflict in his.

Plus there’s substantially redacted material in the Rod Rosenstein 302 that pertains to this topic (and possibly also in Jody Hunt’s 302). Which is to say that DOJ is letting the President make repeated assertions about this topic, while withholding the counter-evidence under claims of privilege.

A more glaring example, however, involves Mike Flynn. In response to the FOIA, DOJ has only released the same January 24, 2017 302 that got released as part of Flynn’s sentencing. Even as Barr has planted outside reviewers in the DC US Attorney’s office to second-guess Flynn’s prosecution, DOJ is withholding 302s that — the government has suggested — show that Flynn wasn’t even all that forthcoming after he was purportedly cooperating with Mueller.

Based on filings and assertions made by the defendant’s new counsel, the government anticipates that the defendant’s cooperation and candor with the government will be contested issues for the Court to consider at sentencing. Accordingly, the government will provide the defendant with the reports of his post-January 24, 2017 interviews. The government notes that the defendant had counsel present at all such interviews.

Even Flynn himself released a sworn declaration revealing that his Covington lawyers told him his first interview with Mueller, on November 16, 2017, “did not go well.”

More urgent, given today’s news that Julian Assange’s lawyers will claim that when Dana Rohrabacher met with Assange in August 2017 about trading a pardon for disinformation about Russia’s involvement in the 2016 operation, DOJ is withholding details about conversations Flynn participated in during the campaign about WikiLeaks, including a possible effort to reach out to them after the John Podesta release.

The defendant also provided useful information concerning discussions within the campaign about WikiLeaks’ release of emails. WikiLeaks is an important subject of the SCO’s investigation because a Russian intelligence service used WikiLeaks to release emails the intelligence service stole during the 2016 presidential campaign. On July 22, 2016, WikiLeaks released emails stolen from the Democratic National Committee. Beginning on October 7, 2016, WikiLeaks released emails stolen from John Podesta, the chairman of Hillary Clinton’s 2016 presidential campaign. The defendant relayed to the government statements made in 2016 by senior campaign officials about WikiLeaks to which only a select few people were privy. For example, the defendant recalled conversations with senior campaign officials after the release of the Podesta emails, during which the prospect of reaching out to WikiLeaks was discussed.

Assange has created a firestorm with the mere allegation — one already reported in great depth in real time — that Trump was involved in the 2017 Rohrabacher effort.

Except Mike Flynn’s 302s report something potentially more inflammatory: that the campaign started pursuing this effort in October 2016.

Back Channel: How Sean Hannity Came to Believe “Every Word [Assange] Says”

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In a pre-hearing hearing in London today, a lawyer for Julian Assange said they’d call a witness who would testify that Julian Assange was offered a pardon if he would say that Russia wasn’t behind the 2016 hack.

This has led to people discovering for the first time the abundant evidence that Assange and the Trump Administration were discussing pardons in a bunch of different contexts. They weren’t all, at all, an exchange for Assange’s false testimony about his ties to Russia. That’s just the only legally convenient one Assange can mention, because the others involve extortion (either a quid pro quo for the initial campaign dirt, or an offer to limit the damage of the Vault 7 leak in exchange for immunity) that would easily reach the bar for extradition.

As I’ve noted repeatedly, one of the most interesting questions Robert Mueller failed to get Trump to answer in good faith pertained to pardon discussions starting even before the inauguration.

Did you have any discussions prior to January 20, 2017, regarding a potential pardon or other action to benefit Julian Assange? If yes, describe who you had the discussion(s) with, when, and the content of the discussion(s).

Trump’s answer did not cover the transition, when — testimony from his trial made clear — Roger Stone was already working on a pardon.

I do not recall having had any discussion during the campaign regarding a pardon or action to benefit Julian Assange.

The record shows that discussions of an Assange pardon — for any of a variety of reasons — continued from late 2016 through early 2018.

But now that Assange is preparing to unpack one point of blackmail he has against Trump — and given the abundant effort we’ve seen that various people (including but not limited to Paul Manafort) use Sean Hannity as a back channel to the President — it’s time for folks to reconsider the Sean Hannity interview of Julian Assange from early January, 2017, just days after Roger Stone was known to be pursuing a pardon for Assange.