The Suspected 2019 Exposure of Johnathan Buma’s Source

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One of several reasons why I’ve been cautious about FBI counterintelligence agent Johnathan Buma’s claims of whistleblower retaliation is how little care he has shown to protect his former informants.

Since the summer, multiple outlets have reported on Buma’s story, most focusing on Buma’s claim that his supervisors are retaliating because he shared source reporting with the FBI implicating Rudy Giuliani. After a right winger posted his statement, Insider did a story, followed by New Yorker, then MoJo, followed by an on-screen interview with Insider. The other day, MoJo reported that the FBI had searched his home for classified documents.

Buma submitted two complaints to Congress: A shorter one to Jim Jordan’s weaponization committee, and a more detailed one — which was released in redacted form in Insider’s first story on Buma — to the Senate Judiciary Committee. Between the two of them and a follow-up report from Insider, the reporting on Buma described six informants:

  • Dynamo: A US-based businessman with close ties to Ukraine and Russia and, seemingly, a real gripe with Pavel Fuks
  • Rollie: A former KGB agent who evolved into a clandestine operative in the Security Bureau of Ukraine (SBU) after the Soviet Union collapsed and then started a successful real estate business and a foundation that promotes the rule of law in society with stated purpose that includes holding criminal oligarchs accountable or pilfering Ukrainian state funds
  • The Economist: A highly educated academic with expertise in international business and economics who consulted with Ukraine’s Prosecutor General’s Office and Rollie’s foundation
  • Mr. X: A foreign informant with information about specific money laundering transactions pertaining to Ihor Kolomoyskyi
  • Genius: Chuck Johnson, whom Buma had recruited in 2020
  • Peter Thiel

At least four of these informants have been shut down.

Buma describes that his managers shut down Johnson as a source — for what Buma attributes to Johnson’s expression of white supremacist views on social media — in 2021, while the FBI agent was on vacation. Buma dismissed those far right postings as Johnson’s means to retain his credibility among other white supremacists. But Buma doesn’t mention any of the other fifty or so reasons why Johnson was totally inappropriate to be an FBI source, nor does he describe the larger context of FBI’s recognition, after January 6, that they had made a number of key members of militia groups informants to report on topics other than those militia groups. Buma’s treatment of Johnson seriously discredits his claims as it is, but that shocking lapse of judgement is not the point of this post.

Buma described that Rollie and The Economist were only briefly FBI informants in early 2019. He makes it clear they were fairly quickly identified to be part of the larger information operation targeting Joe Biden. While Buma acknowledges that they were part of an info op, he nevertheless claims that information they shared on Hunter Biden was the primary reason the Delaware investigation turned to examine influence peddling and tax crimes. Buma’s claims about the Hunter Biden investigation are among those that don’t match the public record (but which would be interesting, if true, because it might suggest Bill Barr funneled that report to Delaware like he funneled other dodgy allegations).

By contrast, Buma boasts of Dynamo’s productivity, crediting him with a range of critical reporting on organized crime and money laundering. He specifically cites Dynamo’s import in subsequent legal action against Ihor Kolomoyskyi and Serhiy Kurchenko and what he describes to be largely unresolved reporting on Fuks. Buma doesn’t describe Dynamo providing any reporting on Andrii Derkach; indeed, he blames Fuks for Andriy Telizhenko’s information op, not Derkach. Nor does Buma describe Dynamo reporting on Mykola Zlochevsky or which Ukrainians and Russians Dynamo reported on in conjunction with the Mueller investigation.

Buma attributes some reporting Dynamo did, in 2020, on Rudy Giuliani’s fundraising for his Hunter Biden movie as the source of his troubles with his supervisors. While that’s a credible claim, given Barr’s known interference in investigations into Rudy in 2020, Buma’s description of the complexities of DOJ’s interest in Rudy similarly does not match the public record.

As Buma describes it, the Foreign Influence Task Force first recommended he shut down Dynamo after Rollie and the Economist were determined to be an information operation, which he dates to around June 2019. He fought that recommendation successfully. But then following Russia’s invasion of Ukraine in 2022, FITF renewed the recommendation and won that battle. Buma complains that one of his best sources was shut down in spite of his continued productivity.

I don’t doubt there’s some real retaliation against Buma going on. His description of being moved to a surveillance crew on the other side of Los Angeles is the kind of petty thing vindictive bosses do. We will have to wait and see what predicated the search from earlier this week.

But what I don’t get is how Buma ignores the exposure of his sources in all this. Whether or not Dynamo was part of Rollie and the Economist’s information operation (or, as seems likely, Dynamo had started handling Buma to accomplish his own objectives, something that makes Buma’s reported use of his own phone and car to work sources a bigger problem), he would have been burned by his contact with it.

As Buma describes it, Rollie and the Economist came to LA in January 2019 and, thanks to the intervention of Dynamo, presented their claims at the US Attorney’s Office. If that weren’t already enough for a former KGB agent like Rollie to figure out that Dynamo might be an informant, Dynamo’s ties to Rollie led the White House to ask for background information on Dynamo in June 2019.

On June 26, 2019, I recieved request for any/all known information related to the true name of my most sensitive confidential source, DYNAMO. This request for information originated from the White House/Special Events/Intelligence Agencies national name check program, which was sent to me through the FBI New York Field Office (NYFO). Ostensibly, the purpose or this request was to vet DYNAMO’s attendance at special event, To me this appeared to be an attempt to discover if DYNAMO was an FB recruited source. This was deep concern for me, since DYNAMO had direct access to and had reported on individuals connected to the White House related to the Special Counsel investigation. I later learned DYNAMO had taken ROLLIE and THE ECONOMIST to a special event, during which time ROLLIE gave the same thumb drive with derogatory information on it concerning Burisma to Secretary of State Mike Pompeo (Pompeo).

It makes perfect sense that FITF recommended the FBI shut down Dynamo at that point, because from that point forward, the FBI would have had to assume Russia was tracking everything Dynamo was doing and using him to plant disinformation.

But it’s Buma’s carelessness about Dynamo — and all his other sources, even including Chuck Johnson — that I find especially suspect.

As part of his complaint against the FBI, Buma sat down and catalogued a bunch of recent investigations in which he says Dynamo played an instrumental role, I guess in an effort to show how stupid the FBI was to shut him down. By his description, Dynamo has informed on all manner of organized crime, money launderers, and foreign spies. And while Insider made a big show of redacting some of the sensitive references in Buma’s more detailed statement, unsurprisingly — given that Buma shared it with a committee with a few notorious right wing Senators willing to burn anything down — it has circulated in unredacted form freely.

I’m no expert but I’ve got some guesses as to who Dynamo, Rollie, and the Economist are. Even casual members of the Ukrainian exile community in the US no doubt know exactly who they are (the New Yorker spoke with Dynamo for its story, describing him as “a businessman well connected in both Eastern European and American political circles”). Russian spooks are going to know even more.

FBI handling agents don’t do that kind of thing. It’s the kind of thing that can get someone killed.

If Dynamo really had been as valuable as Buma says he was, I can’t imagine Buma would put all this in one report, not even one sent securely to the Intelligence Committees, much less a noted fountain of leaks like SJC. It’s not a question of classified information or not (Buma’s attorney has told the press that the statement, which was seized in the search, did not include classified information). Indeed, the initial right wing blog post, about a different topic entirely, seems just like the kind of vehicle to leak such a document. If Buma believed what he says about Dynamo, his actions seem inexplicable to me.

There’s plenty that is dodgy about the FBI’s own conduct, at least as described. But there are big holes in Buma’s story, starting with his seeming lack of concern for Dynamo’s confidentiality.

Update: Corrected misspelling of Buma’s first name.

In His House Judiciary Committee Testimony, John Durham Confessed that Michael Horowitz Was Right

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Given all the discussion of Trump ordering prosecutors to go after his political enemies, I want to go back — way back — to comment on something John Durham said at his House Judiciary Committee testimony in June.

Adam Schiff observed that Durham violated DOJ policy when, in December 2019, he publicly disagreed with the conclusion DOJ’s Inspector General had made in the Carter Page investigation.

Schiff: Mr. Durham, DOJ policy provides that you don’t speak about a pending investigation, and yet you did, didn’t you?

Durham: Um, I’m not exactly sure what–

Schiff: When the Inspector General issued a report saying that the investigation was properly predicated, you spoke out, in violation of Department of Justice, Department of Justice policy, to criticze the Inspector General’s conclusions, didn’t you?

Durham: I issued a public statement. I didn’t do it anonymously, I didn’t do it through third persons, there were —

Schiff: Nonetheless, you violated Department policy by issuing a statement while your investigation was ongoing, didn’t you?

Durham: I don’t know that. If I did, then I did. But I was not aware that I was violating some policy.

Schiff: And you also sought to get the Inspector General to change his conclusion, did you not, when he was concluding that the investigation was properly predicated. Did you privately seek to intervene to change that conclusion?

Durham: This is outside the scope of the report but if you want to go there, we asked the Inspector General to take a look at the intelligence that’s included in the classified appendix that you looked at, and said that that ought to affect portions of his report.

The classified appendix, recall, pertained to what Durham called the “Clinton Plan,” details Dutch intelligence found in purportedly hacked materials at GRU. That included documents purportedly stolen from a top Hillary Foreign Policy Advisor, on which a Russian intelligence product based a claim that,

Hillary Clinton had approved a campaign plan to stir up a scandal against U.S. Presidential candidate Donald Trump by tying him to Putin and the Russians’ hacking of the Democratic National Committee.

From that allegation, Durham appears to have simply made up out of thin air a claim that Hillary planned to fabricate things to tie Trump to Russia, rather than just point to him begging Russia to hack the United States.

First, the Clinton Plan intelligence itself and on its face arguably suggested that private actors affiliated with the Clinton campaign were seeking in 2016 to promote a false or exaggerated narrative to the public and to U.S. government agencies about Trump’s possible ties to Russia. [my emphasis]

In another exchange with Schiff at the hearing, Durham professed to be utterly ignorant of all the things confirmed in the Mueller investigation that provided abundant reason to tie Trump to Russia. There was no need to invent anything.

In any case, what Durham revealed in his testimony is that he shared this information with Michael Horowitz, expecting it would change his mind about the predication of Crossfire Hurricane.

That’s not all that surprising. After all, Durham described as the first mandate of his investigation to determine whether any personnel at the FBI violated federal law by not fully considering potential Russian disinformation before opening an investigation into Trump.

[D]id the FBI properly consider other highly significant intelligence it received at virtually the same time as that used to predicate Crossfire Hurricane, but which related not to the Trump campaign, but rather to a purported Clinton campaign plan “to vilify Donald Trump by stirring up a scandal claiming interference by Russian security services,” which might have shed light on some of the Russia information the FBI was receiving from third parties, including the Steele Dossier, the Alfa Bank allegations and confidential human source (“CHS”) reporting? If not, were any provable federal crimes committed in failing to do so?

To put it bluntly, Bill Barr told John Durham to figure out whether he could charge Peter Strzok (and presumably, Jim Comey and Bill Priestap) for not letting a Russian intelligence report dictate American investigative decisions. And either in an attempt to preempt Horowitz’ conclusion that the investigation was legally predicated or in an attempt to stave off any determination on criminality, Durham pitched him on this theory before publicly attacking his conclusion.

And Durham did so even though — accepting all his conspiracy theories about inventing false claims about Trump were true — that theory never made sense. As Phil Bump (one, two) and Dan Friedman showed when the report came out, Hillary’s concerns about Trump couldn’t have been the cause of the investigation into Trump. By the time (a Russian intelligence product claimed) that Hillary approved a plan to tie Trump to Russia on July 26, 2016, the events that would lead FBI to open an investigation were already in place. Here’s Friedman:

This isn’t just false. It would require time travel. Durham himself confirms that the FBI launched its investigation into Trump and Russia based on events that occurred months prior to Clinton’s alleged July 26 approval of the plan. In April 2016, George Papadopoulos, a foreign policy adviser to the Trump campaign, met with a professor with Kremlin ties, who informed him that Russia “had obtained ‘dirt’ on…Clinton in the form of thousands of emails,” as Robert Mueller’s final report noted.  A week later, according to Mueller, Papadopoulos “suggested to a representative of a foreign government that the Trump Campaign had received indications from the Russian government that it could assist the Campaign through the anonymous release” of damaging material. When hacked Democratic emails were indeed published—by WikiLeaks on July 22—this foreign diplomat alerted US officials about what Papadopoulos had said. The FBI quickly launched an official investigation into the Trump campaign’s Russia ties in response to that tip, Durham notes, while arguing they should have begun only a “preliminary investigation.”

It was the same Russian hack, not Hillary Clinton, that drove media attention, even before the documents were leaked to the public.

There’s another problem with telling Horowitz that his Clinton conspiracy theory should have changed Horowitz’ conclusions. At the earliest, analysts and Priestap only became aware of the intelligence (though probably without Durham’s spin on it) on September 2, well after the opening of Crossfire Hurricane.

When interviewed by the Office, Auten recalled that on September 2, 2016 – approximately ten days after Headquarters Analyst-2’s email – the official responsible for overseeing the Fusion Cell briefed Auten, Moffa, and other FBI personnel at FBI Headquarters regarding the Clinton Plan intelligence. 411 Auten did not recall any FBI “operational” personnel (i.e., Crossfire Hurricane Agents) being present at the meeting. 412 The official verbally briefed the individuals regarding information that the CIA planned to send to the FBI in a written investigative referral, including the Clinton Plan intelligence information. 413

[snip]

Separate and apart from this meeting, FBI records reflect that by no later than that same date (September 2, 2016), then-FBI Assistant Director for Counterintelligence Bill Priestap was also aware of the specifics of the Clinton Plan intelligence as evidenced by his hand-written notes from an early morning meeting with Moffa, DAD Dina Corsi and Acting AD for Cyber Eric Sporre. 415

And despite looking for four years, Durham never confirmed that CIA’s formal referral memo got shared with Peter Strzok, to whom it was addressed.

In spite of never acquiring such proof, not even after four years of searching, recently confirmed Connecticut Supreme Court Justice Nora Dannehy has confirmed that Barr pushed Durham to release an interim report on those claims. NYT described that plan this way:

By summer 2020, with Election Day approaching, Mr. Barr pressed Mr. Durham to draft a potential interim report centered on the Clinton campaign and F.B.I. gullibility or willful blindness.

On Sept. 10, 2020, Ms. Dannehy discovered that other members of the team had written a draft report that Mr. Durham had not told her about, according to people briefed on their ensuing argument.

Ms. Dannehy erupted, according to people familiar with the matter. She told Mr. Durham that no report should be issued before the investigation was complete and especially not just before an election — and denounced the draft for taking disputed information at face value. She sent colleagues a memo detailing those concerns and resigned.

By that point, Durham hadn’t yet interviewed Priestap and others who might inform him of what they actually learned.

From the start, Durham was pursuing this conspiracy theory. He tried to forestall the damning but inconvenient conclusions of the Horowitz report to sustain his conspiracy theory. And he tried to interfere with the 2020 election with his physics-defying conspiracy theory.

Bill Barr didn’t just order John Durham to investigate Hillary Clinton and all the FBI agents who had deigned to investigate Trump’s ties to Russia. He did so based on a conspiracy theory rooted in Russian intelligence.

Gary Shapley’s Handlers Revisit Past Leak Investigations into Chuck Grassley’s Staff

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According to a press release on the website for Empower Oversight–the group handling Gary Shapley’s now-debunked media tour–Empower’s founder, Jason Foster, was the subject of an FBI subpoena to Google in 2017.

Google first alerted Foster to the September 12, 2017 subpoena on October 19, 2023. That’s one of the reasons I find this FOIA so interesting. The notice came more than six years after the subpoena, suggesting FBI likely continued to investigate someone tied to the investigation for at least a year longer than statutes of limitation would normally extend.

Empower seems to suggest there’s a tie between the subpoena and one served on Google pertaining to Kash Patel’s personal email two months later, on November 20, 2017, as does Margot “Federalist Faceplant” Cleveland in this propaganda piece reporting on the subpoenas. While Empower says that this subpoena asked for information on other staffers, it only cites Kash to substantiate its claim that other staffers had also gotten notice of a past subpoena (Cleveland does report that a HPSCI staffer was also included).

Empower Oversight has information indicating that the other accounts listed in the subpoena belonged to other staffers, both Republicans and Democrats, for U.S. House and Senate committees also engaged in oversight investigations of the Justice Department at the time pursuant to their authorities under the U.S. Constitution.

[snip]

Other former staffers have publicly referenced receiving similar notices, including former U.S. House of Representatives Permanent Select Committee on Intelligence (“HPSCI”) staffer Kashyap Patel.

They’re from the same grand jury (16-3). But they not only have different file numbers, but the one on Kash’s subpoena — that is, the later subpoena, by two months — has a lower file number, 2017R01887, as compared to 2017R01896.

Kash is suing roughly the same people over his subpoena as Empower is FOIAing: Empower is asking about former DC US Attorney Jessie Liu, Rod Rosenstein, his one-time Principal Associate Robert Hur (currently the Special Counsel investigating Joe Biden’s classified documents), and Ed O’Callaghan, who replaced Hur, along with then DOJ Spox Sarah Isgur. Kash is suing Liu, Rosenstein, Hur, and O’Callahan, plus FBI Director Chris Wray and the two AUSAs behind the subpoena.

There are problems with both of their target sets. For example, Liu wasn’t even sworn in as US Attorney until September 25, 2017 — after the Foster subpoena (though before the Kash one). So Empower’s suggestion that Liu had some influence on the subpoena on him is nonsense. Rosenstein wasn’t sworn in until April 26, 2017, almost five months after the request for conversations with the press starts.

Similarly, Ed O’Callaghan, whom Kash describes as, “the Principal Associate Deputy Attorney General for Mr. Rosenstein at the time in question,” didn’t move from the National Security Division to Rosenstein’s office until April 2018, after Hur was confirmed as US Attorney for Maryland and long after both the subpoena implicating Kash and his blow-up with Rosenstein. Though if these were really sensitive leak investigations, NSD may have had a role in them. (Empower includes NSD within its FOIA.)

Those details don’t seem to matter for their projects: both men appear to be using the subpoenas as an excuse to settle scores.

Kash, ever the conspiracy theorist, brought a Bivens claim insinuating that Rosenstein and others violated Kash’s Fourth Amendment rights because DOJ served a subpoena — something not requiring probable cause under the Fourth Amendment — to obtain the subscriber information for a list of around 14 identifiers, of which his personal email was just one. There’s nothing on the face of the subpoena to suggest that DOJ knew his email was tied to someone who was a Congressional staffer at the time of the subpoena (though again, Federalist Faceplant seems to know at least one other person listed was a staffer). In fact, the subpoena asked for contact information going back to April 2016, a year before Kash moved from DOJ to HPSCI, so it could have pertained to a leak internal to DOJ.

Nevertheless, Kash spins a tale where the November 2017 subpoena is in some way connected with what he claims is Rosenstein’s threat, over a month later, to subpoena HPSCI staffers.

5. The illegitimate grounds for the subpoena were made clear when, shortly after the FBI and DOJ previewed what would become the “Nunes Memo,” which outlined significant issues with FBI’s and the DOJ’s manner of opening and conducting the Crossfire Hurricane investigation, then-Deputy Attorney General Rod Rosenstein (“DAG Rosenstein”) threatened to subpoena the records of the House Permanent Select Intelligence Committee staff, including Mr. Patel, during a closed-door meeting about producing documents requested by the Committee for their investigation into DOJ’s and the FBI’s, its subagency, conduct in the Crossfire Hurricane investigation.

6. The Department of Justice attempted to defend against the allegation of this threat to Legislative Branch employees, but admitted, at a minimum, that DAG Rosenstein did threaten to subpoena records of Congressional staff in contempt proceedings over the DOJ’s noncompliance with multiple subpoenas. Regardless, this characterization was disputed by multiple Committee staffers, and the matter was referred to the House General Counsel and Speaker of the House as a threat to subpoena records of staffers to halt their investigation.

7. DAG Rosenstein made this threat in January of 2018, approximately one month after his Department of Justice had already subpoenaed Mr. Patel’s email records from Google. This confrontation establishes that DAG Rosenstein and other Defendants were searching for a reason to subpoena Mr. Patel’s official accounts as well as the personal ones that DOJ was already improperly pursuing.

Contrary to Kash’s claim, DOJ didn’t concede Rosenstein threatened to subpoena the HPSCI records. According to a Fox News article Kash himself cites in his suit, DOJ said that Rosenstein was advising staffers to retain their emails so he could use them to defend against any accusation of contempt. Though Rosenstein did threaten to ask the House General Counsel to investigate Kash and whoever else was involved.

A DOJ official told Fox News that Rosenstein “never threatened anyone in the room with a criminal investigation.” The official said the department and bureau officials in the room “are all quite clear that the characterization of events laid out here is false,” adding that Rosenstein was responding to a threat of contempt.

“The Deputy Attorney General was making the point—after being threatened with contempt — that as an American citizen charged with the offense of contempt of Congress, he would have the right to defend himself, including requesting production of relevant emails and text messages and calling them as witnesses to demonstrate that their allegations are false,” the official said. “That is why he put them on notice to retain relevant emails and text messages, and he hopes they did so. (We have no process to obtain such records without congressional approval.)”

Further, the official said that when Rosenstein returns to the United States from a work trip, “he will request that the House General counsel conduct an internal investigation of these Congressional staffers’ conduct.”

This all seems like a retroactive attempt to politicize the investigation into some contact Kash had, potentially even before he joined HPSCI with a lawsuit claiming a violation of the Fourth Amendment under Bivens for a subpoena for toll records that a former DOJ prosecutor, especially, should know are not entitled to any expectation of privacy.

Foster’s claim, which is only a FOIA, not a lawsuit, is a bit less ridiculous (so long as you ignore his demand for communications involving Liu before she started as US Attorney and Rosenstein before he was DAG).

He seems certain that the subpoena for his phone (which he says was used by his spouse) pertained to a leak investigation. He’s filing it to find out if Rosenstein’s office ever got the same scrutiny in leak investigations that (he seems sure) some Congressional staffers got in 2017.

It begs the question of whether DOJ was equally zealous in seeking the communication records of its own employees with access to any leaked information.

[snip]

(5) All communications exchanged between members of the press and DAG Rosenstein, Robert Hur, Edward O’Callaghan, Sarah Isgur, aka Sarah Isgur Flores, and/or Jessie Liu for the period from December 1, 2016 to September 26, 2017, regarding (a) communications between Michael Flynn and Sergey Kislyak, (b) Carter Page, (c) Joe Pientka, (d) Bill Priestap, (e) congressional oversight requests, (f) Senator Charles Grassley, (g) Jason Foster, and/or (h) the Crossfire Hurricane investigation.

(6)All grand jury subpoenas issued for personal communications of DAG Rosenstein, Robert Hur, Edward O’Callaghan, and/or Jessie Liu between May 1, 2017 and May 1, 2018.

(7) All communications exchanged between the U.S. Attorney’s Office for the District of Columbia, the National Security Division, the Deputy Attorney General’s Office and/or the FBI and Verizon between March 15, 2016, and the present regarding obtaining communications data associated with devices that Verizon serviced for U.S. House Representatives or U.S. Senate. [my emphasis]

The time range of the Foster subpoena, December 1, 2016 to May 1, 2017, covers the period of the known leaks about Mike Flynn and Carter Page — the former, especially, one of the leaks Republicans have never stopped bitching because it wasn’t charged. Yet here, a key Republican is complaining there was “no legitimate predicate” in investigating people who were briefed on information that subsequently got leaked.

There appears to have been an extensive and far-reaching effort to use grand jury subpoenas and perhaps other means to gather the personal communications records of innocent congressional staffers and their families with little or no legitimate predicate.

Empower’s mention of Carter Page also situates the subpoena temporally. The subpoena that included a number associated with Foster was served in precisely the same time period that — the Statement of the Offense and sentencing memo for James Wolfe case show — FBI was investigating the leak of the Carter Page FISA. DOJ opened that investigation in April 2017. They had shown enough probable cause against Wolfe to obtain a warrant to covertly image his cell phone by October 2017. No one complained that Wolfe was prosecuted for his presumed role in leaking some of these stories, and his prosecution alone shows that the subpoena had predicate.

Foster may have other specific stories in mind too: In addition to the leaked stories about Flynn undermining US foreign policy with the Russian Ambassador, the FOIA asks about other Russian investigation stories, including Joe Pientka, whose role in briefing Mike Flynn Grassley made into a personal crusade.

Curiously, the Steele dossier is not on here, even though that was another personal crusade of Chuck Grassley.

All that said, the timeline included in the FOIA is broader than that. Here’s how the various timelines overlap, or don’t:

  • Scope of Foster subpoena: December 1, 2016 through May 1, 2017
  • Rosenstein sworn in as DAG: April 26, 2017
  • Date of Foster subpoena: September 12, 2017
  • Jessie Liu sworn in as US Attorney: September 25, 2017
  • Scope of Foster’s FOIA for DAG communications with the press: December 1, 2016 through September 26, 2017
  • Date of Kash subpoena: November 20, 2017
  • Scope of Kash subpoena: May 1, 2016 through November 20, 2017
  • Scope of Foster’s FOIA for grand jury subpoenas targeting DAG: May 1, 2017 through May 1, 2018
  • Scope of Foster’s FOIA for Verizon records of Congressional staffers March 15, 2016 through October 24, 2023

Foster is FOIAing Rosenstein’s office, first, for conversations with the press — including about him — starting on December 1, 2016, before Trump was inaugurated and months before Rosenstein was sworn in on April 26, 2017. He is FOIAing conversations with the press that continue through the day after Liu was sworn in September 2017, still months before O’Callaghan was part of DAG.

Then he’s asking for any grand jury subpoenas (which he knows would be protected under grand jury secrecy rules and so won’t get) from the end date of the subpoena targeting him, after which point both the Flynn and Page investigations were underway, until May 1, 2018 — still four months before Legistorm shows Foster leaving his SJC job on September 4, 2018, but perhaps not coincidentally ending before the time when the Mueller investigation started to more closely probe fellow SJC staffer Barbara Ledeen’s role in Mike Flynn’s 2016 rat-fucking and two weeks shy of an interview when Mueller asked Flynn about Ledeen’s investigation of the investigation. A September 17, 2018 interview asked very specific questions about people leaking claimed details of the investigation to Flynn, as well as Flynn’s contacts with unidentified Congressional staffers.

Again, this request is a test about whether Rosenstein’s office was targeted for leaks, but the leaks that Foster suggest this subpoena pertains to — Mike Flynn’s contacts with Sergey Kislyak and Carter Page’s FISA — happened before any of these people were in DAG. Foster seems interested in leaks about leak investigations, not the leaks themselves.

It’s the final bullet I find the most interesting though. None of the subpoenas he raises in his FOIA — not the subpoena of Kash’s personal email, not the subpoena of his own Google voice phone, and not the subpoena to Apple targeting HPSCI members — target official phone records. But Foster FOIAs for official records as well: All communications between DC USAO, NSD, DAG, and FBI with Verizon — communications that might be something other than a grand jury subpoena — about obtaining phone records for the Congressional devices serviced by Verizon. He’s asking for a much broader period of time, too: March 15, 2016 — early enough to include the start date of Kash’s subpoena, but also to include some of Barbara Ledeen’s rat-fucking with Mike Flynn — through the present, late enough to include any contacts in which Chuck Grassley staffers used their official devices to share information about the Hunter Biden investigation with the press.

This last request is not about Rosenstein; Rosenstein was only DAG for two of the seven and a half years covered by this part of the FOIA.

This FOIA is, on its face, totally uncontroversial (though it attempts to do with a FOIA what DOJ IG is already doing, which it notes). It purports to test whether Rod Rosenstein exempted his own top deputies from the kind of investigative scrutiny to which Rosenstein — always a leak hawk — subjected Congressional staffers. Hell, I’m fairly certain Rosenstein and his top deputies were key undisclosed sources for a bunch of bullshit comments (though most of them were false, and therefore not criminal leaks). Some of those anonymous comments were to the same stable of journalists who also happen to serve as mouthpieces for Chuck Grassley propaganda (and as such, Foster may have specific reason to believe that Rosenstein teed up journalists’ questions to or about him).

And the FOIA for contacts with Verizon gets at important separation of powers issues: under what terms the Executive Branch can investigate the official business of the Legislative Branch, including times when the Legislative Branch is screaming for investigations into leaks that probably (and provably, in the case of Carter Page) include Legislative Branch staffers.

But it also serves as a fishing expedition, by the entity that championed the now debunked claims of Gary Shapley, into potential investigations into transparent ongoing efforts by Chuck Grassley to release details of criminal investigations in the guise of oversight.

In a meeting agenda sent September 3, 2020, Joseph Ziegler included the Senate investigation led by Chuck Grassley and Ron Johnson among topics for discussion.

No later than December 2020, a document shared by Empower Oversight client Gary Shapley reveals, the IRS agents running this investigation cared more about catering to demands from Congress, including from Chuck Grassley, than preserving the investigation.

The USAO and FBI received congressional inquiries concerning this investigation and have repeatedly ignored their requests, openly mocking the members of congress who made the request.

Another document shared by Empower Oversight client Gary Shapley shows that, in May 2021, the IRS agents running the investigation continued to be aware of — and interested in catering to — requests from Congress.

The USAO and FBI received congressional inquiries concerning this investigation and it’s believed they have ignored their requests.

A document released by Empower Oversight client Gary Shapley reflecting a January 6, 2023 call with IRS’ Deputy Field Officer Michael Batdorf alerting him — among other things — that he expected the Delaware US Attorney to make “nefarious” allegations against him, also recorded that by the time, two days after he notified IRS and DOJ IG Inspectors General he was seeking formal whistleblower status which happens to have happened on the day the GOP took the House, his attorney had already, “participated in calls and/or meetings” with “the Congressional Judiciary committees.”

DFO asked about the process and Shapley responded that the Congressional Judiciary committees, OSC, IRS OGC and TIGTA have been notified and have participated in calls and/or meetings with my counsel.

Yet when one of Shapley’s attorneys, Mark Lytle, formally contacted the Chairs and Ranking Members of those same “Congressional Judiciary committees,” the Chairs and Ranking Members of the relevant finance committees, along with Chuck Grassley on April 19, 2023, he did not treat those contacts with the judiciary committees as protected disclosures. The letter mentions that Grassley is a member of the Finance Committee, but doesn’t mention that Grassley is a member and former Chair of the Judiciary Committee.

That was the first moment, publicly at least, that Empower Oversight client Gary Shapley sought protection to share IRS protected information with Congress. That is, even according to Lytle, if Shapley shared any IRS protected information — to say nothing of grand jury protected information — prior to that, by the plain terms of his letter it was not under a grant of protection.

A month after Gary Shapley’s claims — facilitated by Empower Oversight — were soundly debunked by his own documentation and his colleagues, Empower Oversight filed a FOIA that would, among other things, attempt to learn whether the FBI was conducting any investigation of leaks to the press from Chuck Grassley’s staffers, covering the period in 2016 when a Chuck Grassley staffer attempted to reach out to hostile intelligence services to find dirt on Hillary Clinton, the period when a Grassley staffer was seeding press stories — some that were fabrications — about the Russian investigation, and the period of time when those investigating Hunter Biden were more solicitous of requests from members of Congress like Chuck Grassley than they were in protecting the ongoing investigation.

Donald Trump Raises Conflict Concerns about His Mike Flynn Pardon

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The data mules for Trump’s latest tirade seem to think his claims that Sidney Powell was never his lawyer are all an attempt to deny he ever took legal advice from Powell in the wake of her plea deal in Georgia.

But the substance of his tirade is far more interesting than that.

Trump doesn’t just claim that Sidney Powell was never his attorney — a claim that conflicts with claims Trump made in real time.

He says she would have been conflicted.

Immediately after Trump claims Sidney Powell would have been conflicted (because of what? Trump doesn’t say), the former President turns to the Thanksgiving pardon he gave to confessed agent of Turkey, Mike Flynn.

Trump implies he gave Flynn a pardon because, “He was an innocent man, much like many other innocent people who are being persecuted by this now Fascist government of ours.” But as we’ve just reviewed thanks to Flynn’s stupid lawsuit against DOJ, the pardon itself did not make that claim. Only a White House press release about the pardon did.

Plus, the pardon couldn’t have been based on innocence, not entirely, anyway, because Flynn made false statements in the process of reneging off his prior guilty plea to making false statements. It is quite literally impossible for Flynn to have been innocent of making any unlawful false statements, because the things he said in the process of reneging on his plea deal completely contradicted things he had said under oath earlier. The Flynn pardon was easily the most expansive of any pardons Trump gave (perhaps save the clemency for Roger Stone found in Trump’s desk drawer, which could pardon Stone for murdering someone on Fifth Avenue for all we know). It had to be written that broadly to prevent Judge Sullivan from referring Flynn for perjury before his court. The pardon covered not just the lies Flynn told the FBI on January 24, 2017, it also covered claims Flynn made before an EDVA grand jury and in plea colloquies before Sullivan.

So here we are, just days after DOJ submitted a response to Trump’s claim of absolute immunity that argued — among other things — that a presidential pardon given as part of a quid pro quo would be unlawful, and Trump is offering up not just that Sidney Powell wasn’t his attorney in November 2020 when he claimed she was, but that she would have been conflicted — apparently because of her representation of Mike Flynn! — from being his attorney.

In real time, I addressed the possibility that Trump’s public claims about whether Sidney Powell was or was not his attorney may have been an attempt to eliminate the conflict problem with Flynn’s pardon.

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

On November 15, Trump explicitly named Powell as part of his team. On November [19], Powell appeared at Rudy the Dripper’s press conference. On November 22, Rudy and Jenna Ellis made a show of cutting ties with her.

Sidney Powell is practice law on her own. She is not a member of the Trump Legal Team. She is also not a lawyer for the President in his personal capacity.

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

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

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

That was the publicly available timeline (and Maggie Haberman’s public explanation) when I wrote the post on November 27, 2020, just two days after the pardon.

But Trump’s January 6 indictment adds a few details to that timeline in the single solitary paragraph addressing Powell’s overt acts, which happens to be tucked away in the section on Georgia, the state where Powell just pled guilty.

On November 16, 2020, on the Defendant’s behalf, his executive assistant sent CoConspirator 3 and others a document containing bullet points critical of a certain voting machine company, writing, “See attached – Please include as is, or almost as is, in lawsuit.” CoConspirator 3 responded nine minutes later, writing, “IT MUST GO IN ALL SUITS IN GA AND PA IMMEDIATELY WITH A FRAUD CLAIM THAT REQUIRES THE ENTIRE ELECTION TO BE SET ASIDE in those states and machines impounded for non-partisan professional inspection.” On November 25, Co-Conspirator 3 filed a lawsuit against the Governor of Georgia falsely alleging “massive election fraud” accomplished through the voting machine company’s election software and hardware. Before the lawsuit was even filed, the Defendant retweeted a post promoting it. The Defendant did this despite the fact that when he had discussed CoConspirator 3’s far-fetched public claims regarding the voting machine company in private with advisors, the Defendant had conceded that they were unsupported and that Co-Conspirator 3 sounded “crazy.” Co-Conspirator 3’s Georgia lawsuit was dismissed on December 7.

Here’s how the timeline looks with the details from the indictment added in:

  • November 15: Trump says publicly Powell was part of his team
  • November 16: Nine minutes after Trump demanded lawsuits include attacks on Dominion, Powell orders that all forthcoming lawsuits include it: “IT MUST GO IN ALL SUITS IN GA AND PA IMMEDIATELY WITH A FRAUD CLAIM THAT REQUIRES THE ENTIRE ELECTION TO BE SET ASIDE”
  • November 19: Powell appears at the Rudy the Dripper press conference, looking far less embarrassing than the President’s lawyer, which didn’t stop Maggie Haberman from claiming that Powell’s appearance was the reason Trump was cutting Powell from his legal team
  • November 22: Jenna Ellis and Rudy make a big show of cutting ties with Powell
  • November 25: Having ordered that all lawsuits include the Dominion attack Trump ordered, Sidney Powell then files the first lawsuit including such an attack; on the very same day, Trump pardons her client and then starts disseminating her bullshit attacks on Dominion

At least according to the indictment, it all happens on the same day: The lawsuit attacking Dominion, the pardon, Trump’s celebration of the lawsuit attacking Dominion.

The indictment focuses on Trump’s claims that Powell was crazy — and up until now I have believed that’s in there as a guaranteed way to show that Trump was pushing lies he had disavowed.

But with Trump ranting about cooperating witness Sidney Powell’s conflicts, I’m no longer so sure.

Update: Fixed date of hair dye presser, h/t critter.

Buried in DOJ’s Absolute Immunity Response, a Comment on Trump’s Suspected Zenith Crimes

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Earlier this month, Trump’s DC team filed a motion to dismiss his January 6 indictment based on a claim of absolute immunity, an argument that Presidents cannot be prosecuted for things they did while President.

To get a sense of how shoddy Trump’s argument was, you need only compare the number of citations to these cases:

  • Nixon v. Fitzgerald, which found Presidents had absolute immunity against civil lawsuits for things that fall within their official duties
  • US v. Nixon, which found that the same President who had absolute immunity from civil suit could not use Executive Privilege to withhold evidence from a criminal prosecution
  • Trump v. Vance, which held that Trump, while still President, was not immune from a criminal subpoena
  • Thompson v. Trump, in which SCOTUS upheld a DC Circuit Opinion that upheld a Tanya Chutkan opinion that the events of January 6 overcame any Executive Privilege claim Trump might make to withhold documents from Congress, a far higher bar than withholding them from the FBI

Trump’s absolute immunity claim was a shoddy argument, but you never know what this SCOTUS would rubber stamp, even considering its cert denial in Thompson v. Trump and questions about whether Clarence Thomas (who did not recuse in that case, but did in John Eastman’s appeal of a crime-fraud ruling against him) would be shamed into recusing in this one.

Shoddy argument and all, there was never going to be a way to carry out the first-ever prosecution of a former President without defeating an absolute immunity claim.

In general, DOJ’s response is much more adequate than Trump’s motion to the task of laying out one side of an argument that will ultimately be decided by a very partisan Supreme Court. But it is written as the first response in what will be, whatever the outcome, a historic ruling.

Before it spends ten pages addressing Trump’s application of Nixon v. Fitzgerald, it spends ten pages laying out the constitutional framework in question. In a section addressing Trump’s claim that his impeachment acquittal on January 6 charges meant he could not be charged for related crimes, DOJ notes that Trump argued at the time, that as a former President, the Senate no longer had jurisdiction to hold an impeachment trial. Then it cites the many Republican Senators who used that stance to justify their own acquittal votes. It notes that the Nixon pardon and the Clinton settlement both presumed potential exposure to prosecution once they became former Presidents.

Out of necessity, the Fitzgerald section adopts an analogy from that precedent to this one: In the same way that Fitzgerald likened the President to prosecutors and judges who enjoy immunity for their official acts, Fitzgerald did not immunize those same prosecutors and judges from other crimes. At a time of increased focus on undeclared gifts that Clarence Thomas has accepted from people with matters before the court and after a Sam Alito interview — with someone who has matters before the court — in which he claimed separation of powers prohibited Congress from weighing in on SCOTUS ethics, DOJ cited the 11th Circuit opinion holding that then-Judge Alcee Hastings could be prosecuted. That is, whatever the outcome of this dispute, it may have implications for judges just as it will for Presidents.

Only after those lengthy sections does DOJ get into the specifics of this case, arguing:

  • By misrepresenting the indictment in a bid to repackage it as acts that fit within the President’s official duties, Trump has not treated the allegations as true, as Motions To Dismiss must do
  • Trump’s use of the Take Care Clause to claim the President’s official duties extend to Congress and the states is not backed by statute
  • Because Trump is accused of conspiring with people outside of the government — unsurprisingly, DOJ ignores the Jeffrey Clark allegations in this passage (CC4), but while it invokes Rudy Giuliani (CC1), John Eastman (CC2), Kenneth Chesebro (CC5), and Boris Epshteyn (CC6), it is curiously silent about the allegations pertaining to Sidney Powell (CC3) — the case as a whole should not be dismissed

In total, DOJ’s more specific arguments take up just six pages of the response. I fear it does not do as much as it could do in distinguishing between the role of President and political candidate, something that will come before SCOTUS — and could get there first — in the civil suits against Trump.

And its commentary on Trump’s attempt to use the Take Care Clause to extend the President’s authority into areas reserved to the states and Congress is, in my opinion, too cursory.

The principal case on which the defendant relies (Mot. 35-36, 38, 43-44) for his expansive conception of the Take Care Clause, In re Neagle, 135 U.S. 1 (1890), cannot bear the weight of his arguments. In Neagle, the Supreme Court held that the Take Care Clause authorized the appointment of a deputy marshal to protect a Supreme Court Justice while traveling on circuit even in the absence of congressional authorization. Id. at 67-68; see Logan v. United States, 144 U.S. 263, 294 (1892) (describing Neagle’s holding); Youngstown Sheet & Tube, 343 U.S. at 661 n.3 (Clark, J., concurring) (same). Before reaching that conclusion, the Court in Neagle posed as a rhetorical question—which the defendant cites several times (Mot. 35, 38, 43, 44)—whether the president’s duty under the Take Care Clause is “limited to the enforcement of acts of congress or of treaties of the United States according to their express terms; or does it include the rights, duties, and obligations growing out of the constitution itself, our international relations, and all the protection implied by the nature of the government under the constitution?” 135 U.S. at 64. From the undisputed proposition that the president’s powers under Article II are not limited only to laws and treaties, it does not follow, as the defendant seems to imply, that every “right, duty, or obligation[]” under the Constitution is necessarily coterminous with the president’s powers under the Take Care Clause. Under that theory, for example, the president could superintend Congress’s constitutional obligation to keep a journal of its proceedings, U.S. Const. art. I, § 5, cl. 3, or the judiciary’s duty to adjudicate cases and controversies, U.S. Const. art. III, § 2, cl. 1.

The 11th Circuit and then SCOTUS will be facing a similar, albeit better argued, Take Care Clause argument when they review Mark Meadows’ bid to remove his Georgia prosecution. You’d think DOJ could do better — or at the very least note that Trump abdicated all premise of upholding the Take Care Clause during a crucial 187 minutes when his mob was attacking the Capitol.

All that said, I’m as interested in this response for the associated arguments — the seemingly hypothetical ones — such as the one (already noted) that in weighing this argument, the Supreme Court may also have to consider, again, whether they themselves are immune from prosecution for bribery.

It’s not just Clarence Thomas whose actions this fight could implicate.

In two places, DOJ uses hypotheticals to talk about other Presidential actions that might be crimes, rather than focus on the specifics of the case before Judge Chutkan.

For example, DOJ points to the possibility that a President might trade a pardon — a thing of value — as part of a quid pro quo to obtain false testimony or prevent true testimony.

For example, where a statute prohibits engaging in certain conduct for a corrupt purpose, the statute’s mens rea requirement tends to align, rather than conflict, with the president’s Article II duty to “take Care that the Laws be faithfully executed,” U.S. Const. art. II, § 3, which would weigh heavily against the need for immunity. To illustrate, although the president’s power to grant pardons is exclusive and not subject to congressional regulation, see United States v. Klein, 80 U.S. (13 Wall.) 128, 147-48 (1872), criminal immunity should not shield the corrupt use of a presidential pardon—which plainly constitutes “anything of value” for purposes of the federal bribery statute, see 18 U.S.C. § 201(b)(3)—to induce another person to testify falsely or not to testify at all in a judicial, congressional, or agency proceeding.

Less than five years ago, of course, Roger Stone was telegraphing that prosecutors had offered him leniency if he would testify about dozens of conversations that he had with Trump during the 2016 election. Less than five years ago, the newly cooperative Sidney Powell first asked Trump to hold off on pardoning Mike Flynn, only to welcome a Trump pardon of Flynn while Powell and Flynn plotted ways to steal the election. Less than five years ago, Trump gave a last minute pardon to Steve Bannon, who currently faces four months of prison time because he refused to testify to Congress.

I’m not saying DOJ will revisit these pardons, all of which fit squarely within such a quid pro quo description. I’m noting that if the argument as a whole survives, this part of it may also survive.

The same is true of an even splashier passage. A paragraph describing the implications of Trump’s claim to absolute immunity lays out what some commentators have taken as hyperbolic scenarios of presidential corruption.

The implications of the defendant’s unbounded immunity theory are startling. It would grant absolute immunity from criminal prosecution to a president who accepts a bribe in exchange for a lucrative government contract for a family member; a president who instructs his FBI Director to plant incriminating evidence on a political enemy; a president who orders the National Guard to murder his most prominent critics; or a president who sells nuclear secrets to a foreign adversary. After all, in each of these scenarios, the president could assert that he was simply executing the laws; or communicating with the Department of Justice; or discharging his powers as commander-in-chief; or engaging in foreign diplomacy—and his felonious purposes and motives, as the defendant repeatedly insists, would be completely irrelevant and could never even be aired at trial. In addition to the profoundly troubling implications for the rule of law and the inconsistency with the fundamental principle that no man is above the law, that novel approach to immunity in the criminal context, as explained above, has no basis in law or history.

These seemingly extreme cases of crimes a President might commit, crimes that everyone should agree would face prosecution, include (these are out of order):

  • A President ordering the National Guard to murder his critics
  • A President ordering an FBI agent to plant evidence on his political enemy
  • A bribe paid in exchange for a family member getting a lucrative contract
  • A President selling nuclear secrets to America’s adversaries

Like the pardon discussion above, these hypotheticals — as Commander-in-Chief, with the conduct of foreign policy, with the treatment of classified materials — invoke actions where DOJ typically argues that the President is at the zenith of his power.

We have no reason to believe that Trump ordered the National Guard, specifically, to murder his critics. But we do know that on January 3, 2021, Trump proposed calling out 10,000 members of the National Guard to “protect” his people and facilitate his own march on the Capitol.

And he just cut me off, and he goes, well, we should call in the National Guard.

And then I think it was Max who said something to the effect of, Well, we should only call in the Guard if we expect a problem. And then the President says, no, we should call in the Guard so that there aren’t – so that there isn’t a problem. You know, we need to make sure people are protected.

And he said – he looked over at Max, and I don’t know if somebody was standing behind him or not. He just looked the other way from me and says, you know,  want to call in 10,000 National Guard. And then  opened my folder and wrote down 10,000 National Guard, closed my folder again.

We know that days later Mark Meadows believed the Guard would be present and Proud Boy Charles Donohoe seemed to expect such protection.

Similarly, we don’t know of a specific instance where Trump ordered an FBI agent to plant information on his political enemy. But we do know that as part of a Bill Barr-directed effort to reverse the Mike Flynn prosecution in 2020, misleading dates got added to the notes of Trump’s political enemies, Peter Strzok and Andrew McCabe.

Days after those misleading dates were made public via Sidney Powell, Trump used the misleading dates in a packaged debate attack on Joe Biden.

President Donald J. Trump: (01:02:22)
We’ve caught them all. We’ve got it all on tape. We’ve caught them all. And by the way, you gave the idea for the Logan Act against General Flynn. You better take a look at that, because we caught you in a sense, and President Obama was sitting in the office.

We know of no instance where Trump accepted a bribe in response to which a family member got a US government contract. We do, however, know of an instance where the Trump Administration gave the Saudis something of value — at the least, cover for the execution of Jamal Khashoggi — which everyone seems to believe has a tie to Jared’s lucrative $2 billion contract with the Saudi government.

As to selling nuclear secrets to a foreign adversary? Well, we know Trump had some number of nuclear secrets in his gaudy bathroom and then in his leatherbound box. We have no fucking clue what happened to the secrets that Walt Nauta allegedly withheld from Evan Corcoran’s review that got flown to Bedminster just before a Saudi golf tournament, never to be seen again.

All of which is to say that these edge cases — examples of Presidential misconduct that some commentators have treated as strictly hypothetical — all have near analogues in Trump’s record.

This response is a response about a very specific indictment, an indictment that describes actions Trump took as a candidate, often with those outside government, in ways that usurped the authorities reserved to states and Congress.

But in several points in the filing, DOJ invites review of other potential crimes, crimes conducted at the zenith of Presidential power, but crimes that may — must — otherwise be illegal, if no man is above the law.

Mike Flynn Invites DOJ to Review Judge Emmet Sullivan’s Non-Exoneration

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I’ve been missing out on some fun.

When Mike Flynn sued DOJ in Florida for malicious prosecution (docket, complaint, amended complaint, response to MTD), I set an alert but figured it would be too stupid to follow along closely and so haven’t been following closely until something led me to peek this morning.

It is stupid.

But it has, nevertheless, elicited some interesting arguments on the part of DOJ (motion to dismiss, motion to dismiss amended complaint). That’s because it has forced DOJ to engage with Bill Barr’s corrupt attempt to dismiss Flynn’s prosecution in 2020 (the second of these MTDs, which I treat here, was filed in mid-September).

DOJ argues the DC standard for malicious prosecution applies here. If it does, it means that Flynn has to prove that:

  1. The criminal prosecution was procured by investigative or law enforcement officers (as opposed to prosecutors)
  2. There was no probable cause to support the charges even though Flynn pled guilty to them, twice
  3. The criminal prosecution terminated in Plaintiff’s favor

Flynn unsurprisingly bases his claims substantially on texts Peter Strzok sent Lisa Page and even DOJ’s improperly released letter from David Bowdich dismissing Strzok (currently the subject of a lawsuit in which Trump was deposed four days ago).

It also relies heavily on — but does not submit as evidence — the testimony of Bill Barnett. Barnett is pro-Trump FBI agent who, unlike Strzok, remained on the case when Flynn was actually charged. As part of an election stunt, Barr released an interview with Barnett that wildly contradicted his own past actions and redacted all mention of Brandon Van Grack, about whom Barnett had favorable things to say.

You can see the problem here.

Flynn tried, but cannot argue, that Jeannie Rhee and Robert Mueller procured a malicious prosecution of him (for some reason — possibly because the Barnett report describes what a nice guy Van Grack was — Flynn removed Van Grack from his amended complaint).

To win this case, Flynn has to show that an FBI agent did mean things to him. But the FBI agent on the case when he was charged was Barnett, not Strzok. To argue that earlier investigative steps amount to mean things, Flynn has to argue that an agent who reportedly sent pro-Trump texts on his FBI phone filed malicious National Security Letters targeting him.

Since that argument is such a loser, Flynn has substantially attempted to argue that because the FBI did mean things to Carter Page, it equates to mean things against him too.

As DOJ notes, even Carter Page’s lawsuit failed.

Flynn also has to explain away why he twice pled guilty to the charges against him if there was no probable cause to justify the investigation in the first place.

Here, there can be no dispute that there was probable cause for the United States to file the criminal information because Plaintiff had already agreed to plead guilty to the charge at the time it was filed. See Criminal Case, ECF No. 3 (plea agreement with Plaintiff’s signature dated November 30, 2017), Criminal Case, ECF No. 154 (describing exchange of plea documents in days prior to the filing of the criminal information). Plaintiff’s plea agreement expressly states that Plaintiff is entering the plea “voluntarily and of [his] own free will,” after having discussed the plea with his attorneys, because he is “in fact guilty of the offense.” Criminal Case, ECF No. 3 at 10. In connection with the plea, Plaintiff also signed, under penalty of perjury, a “Statement of the Offense,” which set forth the factual predicate for his guilty plea. Criminal Case, ECF No. 4. In the Statement of the Offense, Plaintiff expressly stipulated and agreed that “[Plaintiff’s] false statements and omissions impeded and otherwise had a material impact on the FBI’s ongoing investigation into the existence of any links or coordination between individuals with the [Trump] Campaign and Russia’s efforts to interfere with the 2016 presidential election.” Id. at ¶ 1-2. Subsequently, Plaintiff twice affirmed, under oath, in open court that he was pleading guilty—not based upon any threats or promises but—because he was, in fact, guilty of the offense charged. See Criminal Case, ECF Nos. 16, 103.

Plaintiff’s own agreement to plead guilty to the criminal information conclusively establishes that there were “reasonable grounds”—i.e., probable cause—for the United States to institute the criminal charges. Indeed, numerous courts have held that a guilty plea “conclusively establishes that probable cause existed.” Cuellar v. Love, No. 11-CV-3632 NSR, 2014 WL 1486458, at *5 (S.D.N.Y. Apr. 11, 2014) (collecting cases); see also Walker v. Clearfield Cnty. Dist. Att’y, 413 F. App’x 481, 483 (3d Cir. 2011) (concluding “that a guilty plea—even one for a lesser offense—does not permit a later assertion of no probable cause”); Morrison v. Vine, No. 17-CV-996-LJV-HBS, 2021 WL 1229558, at *3 (W.D.N.Y. Feb. 25, 2021) (collecting cases for proposition that “guilty plea established probable cause for his criminal prosecution”), report and recommendation adopted, 2021 WL 1226446 (W.D.N.Y. Mar. 31, 2021). Plaintiff’s guilty plea thus “establishes probable cause for commencing the proceeding against him and therefore serves as an absolute defense to the malicious prosecution claim.”

Flynn claims he pled guilty (at least the first time) because DOJ threatened to prosecute his son.

The Amended Complaint alleges that Plaintiff “entered into a plea agreement, not because he thought he had done something wrong—he hadn’t—but because SCO had threatened his son with prosecution.” ECF No. 34 ¶ 128; see also id. at ¶ 136 (alleging that “SCO was aware that it had coerced the guilty plea”). Plaintiff’s allegation is totally devoid of supporting factual allegations regarding the alleged threat—such as what specific threat was made, who allegedly made the threat, or when the threat was made. Plaintiff’s threadbare allegation of coercion is insufficient to overcome the presumption established by Plaintiff’s guilty plea.

As DOJ notes, Flynn doesn’t even try to substantiate this claim. That’s probably because if he did, it’d lead right back to Van Grack and Barnett, not Strzok.

Since Flynn can’t prove either that an FBI agent caused charges to be filed against him or that there was no probable cause justifying it, this suit should not succeed.

But things get interesting on the third prong.

That’s because DOJ points to Judge Emmet Sullivan’s refusal to dismiss Flynn’s prosecution in the face of Barr’s attempts to do so to show that the case did not affirm Flynn’s innocence.

In or around February 2020, then-Attorney General William Barr appointed several prosecutors to review the Criminal Case, and, at the conclusion of their review, they recommended dismissal of the Criminal Case against Plaintiff. ECF No. 34. ¶¶ 147-48. On May 7, 2020, then-United States Attorney for the District of Columbia, Timothy Shea, who had not previously appeared in the case, moved to dismiss the criminal information. Id. ¶¶ 148, 151; ECF No. 34-4; Criminal Case, ECF No. 198. U.S. Attorney Shea argued that dismissal was warranted because the Government believed it could not prove “to a jury beyond a reasonable doubt” that: (1) Plaintiff’s false statements to FBI agents were “material” to any FBI investigation; and (2) Plaintiff knowingly and willfully made false statements during the interview. ECF 34-4 at 17-18. U.S. District Court Judge Emmet Sullivan did not immediately grant the motion and, instead, on May 13, 2020, appointed an amicus curiae “to present arguments in opposition to the government’s Motion to Dismiss.” Criminal Case, ECF No. 205 at 1; see also ECF No. 34 ¶ 162.

On November 25, 2020, prior to Judge Sullivan ruling on the motion to withdraw and motion to dismiss, President Trump granted Plaintiff a pardon. The presidential pardon provided Plaintiff “a full and unconditional pardon” for the charge of making false statements to federal investigators, as charged in the criminal information, and all possible offenses within the investigatory authority or jurisdiction of Special Counsel Mueller. Criminal Case, ECF No. 308-1. On the same day the pardon was issued, the White House Press Secretary released a statement addressing the pardon, stating that Plaintiff “should not require a pardon [because h]e is an innocent man.” ECF No. 34 ¶ 163.7 However, the text of the executive pardon did not indicate that the pardon was based on innocence. See Criminal Case, ECF No. 308-1.

On November 30, 2020, the United States Attorney’s Office filed a notice of the executive pardon and consent motion to dismiss, arguing that the Criminal Case was moot due to Plaintiff’s acceptance of the pardon. Criminal Case, ECF No. 308. On December 8, 2020, Judge Sullivan issued an opinion dismissing the Criminal Case as moot. Criminal Case, ECF No. 311.8 In doing so, Judge Sullivan addressed the arguments for dismissal raised in the still pending motion to dismiss filed by U.S. Attorney Shea. Id. at 28-40. Judge Sullivan first stated that the motion to dismiss appeared pretextual given the surrounding circumstances, including Plaintiff’s prior position as an advisor to President Trump and President Trump’s continued interest in the criminal case. Id. at 28-29. Judge Sullivan then commented that the motion to dismiss relied upon a new, “more circumscribed” definition of “materiality,” without offering any comprehensible reasoning for shifting to the “highly-constrained interpretation of materiality.” Id. at 30, 32. Judge Sullivan then reviewed the record evidence and found the motion to dismiss did not undertake “a considered judgment” when determining that “falsity” could not be proven beyond a reasonable doubt. Id. at 38. Judge Sullivan thus suggested that the motion to dismiss “present[ed] a close question,” but refrained from ruling on the merits and denied the motion as moot “in view of the President’s decision to pardon” Plaintiff and Plaintiff’s acceptance of the pardon. Id. at 38

7 See Statement from the Press Secretary Regarding Executive Grant of Clemency for General Michael T. Flynn (Nov. 25, 2020), available at https://trumpwhitehouse.archives.gov/briefings-statements/statement-press-secretaryregarding-executive-grant-clemency-general-michael-t-flynn/.

8 Because Judge Sullivan’s opinion is referenced in—and central to—Plaintiff’s Amended Complaint, ECF No. 34 ¶¶ 165-67, it may be considered by the Court in resolving this motion to dismiss. See Hodge v. Orlando Utilities Comm’n, No. 609-CV-1059- ORL-19DAB, 2009 WL 5067758, at *3 (M.D. Fla. Dec. 15, 2009); infra Argument, § I.

Much later, the motion to dismiss gets into a legalistic argument about whether accepting a pardon is recognition of guilt. Ultimately, though, DOJ notes that those legalistic arguments aren’t at issue here, because Sullivan so clearly laid out that he was dismissing the case only because the pardon — a pardon that Trump did not claim arose from innocence — mooted his authority to decide on Flynn’s innocence or guilt.

22 Although Plaintiff alleges that several independent prosecutors recommended dismissal of the Criminal Case and that, in response, U.S. Attorney Shea, on behalf of the government, moved to dismiss the criminal information, ECF No. 34 ¶ 148, Plaintiff acknowledges that Judge Sullivan “refused to approve the DOJ’s dismissal of its prosecution” and ultimately dismissed the case only “after [Plaintiff] received a full presidential pardon,” id. at ¶¶ 162, 167. In his Opinion addressing dismissal, Judge Sullivan expressed concerns about the merits of U.S. Attorney Shea’s motion and noted that the facts presented “a close question” regarding whether the court should defer to the prosecutor’s discretion to dismiss the charges but refrained from resolving that question in light of Plaintiff’s acceptance of the pardon. Criminal Case, ECF No. 311 at 38.

23 Although “[s]ome courts . . . have considered whether a plaintiff has identified facts surrounding the dismissal . . . that, if proven, would demonstrate that the termination of the criminal case tended to show the plaintiff’s innocence,” Clark v. D.C., 241 F. Supp. 3d 24, 34 (D.D.C. 2017), those cases are inapposite. Here, there is no ambiguity with regard to whether the court’s dismissal order tended to show Plaintiff’s innocence, because the order explained that the termination of the case was not based upon Plaintiff’s potential innocence but instead the case was dismissed as moot in light of Plaintiff’s acceptance of a pardon. Criminal Case, ECF No. 311; Cf. Clark, 241 F. Supp. 3d at 34 (finding allegations of favorable termination sufficient where court granted government’s motion to dismiss without prejudice where neither the motion nor the order offered any information on the basis for dismissal).

In 2020, Judge Sullivan went to a great deal of effort to thread a very fine needle, using Trump’s corrupt pardon as a way to avoid any reversible error even while stopping well short of declaring Flynn innocent. I wrote then that,

it is not relevant to Trump’s pardon of Mike Flynn. But one thing Sullivan did in his opinion was to reject Billy Barr’s new reality in a way that may be invoked for any related matters before DC District courts.

That’s what I find so interesting about this motion to dismiss: DOJ has (quietly) used the reality of Sullivan’s carefully crafted opinion to dismiss Barr’s corrupt attempt to reverse the prosecution and Flynn’s fantasies of innocence.

It’s a rare DOJ rebuke of DOJ. And it’s one entirely enabled by that Sullivan opinion.

Nora Dannehy Confirms that Bill Barr Attempted to Sway 2020 Election with Dubious Interim Report

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As AP first reported, in response to several questions in a hearing on her nomination to the Connecticut Supreme Court, Nora Dannehy provided details about why she resigned from the Durham investigation. In response to the first, she described that Bill Barr seemed intent on issuing an interim report before the 2020 election, the conclusion with which she “strongly” disagreed.

In the spring and summer of 2020, I had growing concerns that this Russia investigation was not being conducted in that way [independent of political influence]. Attorney General Barr began to speak more publicly, and specifically, about the ongoing criminal investigation. I thought these public comments violated DOJ guidelines. In late summer 2020, just months before the 2020 Presidential election, he wanted a report written about our ongoing investigation. Publicly, he would not rule out releasing that report before the Presidential election. I had never been asked to write a report about an investigation that was not yet complete. I then saw a version of a draft report, the conclusions of which I strongly disagreed with. Writing a report — and particularly the draft I saw — violated long-standing principles of the Department of Justice. Furthermore, the Department of Justice has a long-standing policy of not taking any public actions in the time leading up to an election that might influence that election. I simply couldn’t be part of it, so I resigned.

It was the most difficult personal and professional decision I’ve had to make.

This tracks reporting from the NYT that describes Dannehy erupting on September 10, the day before she resigned, when she read the draft report that had been written (Charlie Savage linked this video testimony).

So does something Dannehy said later in the hearing.

What I was involved in involved classified — highly classified — information and I really can’t get into what happened when I was there because I likely would, or potentially could, get into an area that I can’t speak about.

NYT reported that the report came after Durham bypassed Beryl Howell to obtained records he used to attempt to corroborate potential disinformation associated with Guccifer 2.0.

By summer 2020, with Election Day approaching, Mr. Barr pressed Mr. Durham to draft a potential interim report centered on the Clinton campaign and F.B.I. gullibility or willful blindness.

On Sept. 10, 2020, Ms. Dannehy discovered that other members of the team had written a draft report that Mr. Durham had not told her about, according to people briefed on their ensuing argument.

The reference to the Clinton campaign appears to reference Durham’s conspiracy theories about a plan that Clinton planned to frame Donald Trump. But that Durham theory was based on his own fabrication about what the intelligence said, even assuming the intelligence was true and not itself disinformation.

This confirms that Durham twice doubled down on this conspiracy theory about Hillary Clinton, first when he contested Michael Horowitz’s conclusion on the Carter Page investigation, and then when he endorsed this draft report. In the end, his report never substantiated his own conspiracy theory.

Dannehy assiduously avoids blaming her old friend John Durham for this corruption. But long after Barr left office, Durham pursued this conspiracy theory relentlessly, going so far as misrepresenting his own investigation to avoid admitting he proved himself wrong.

Trump’s People: The Prettyman Pardons

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As we wait for Trump to be arraigned in Prettyman Courthouse, I thought it worthwhile to list the 16 men who were prosecuted in Prettyman Courthouse that Trump pardoned, and their crimes:

  1. Scooter Libby: Obstruction of justice and perjury
  2. David Safavian: Obstruction of justice and false statements
  3. Mike Flynn: False statements
  4. Alex Van Der Zwaan: False statements
  5. George Papadopoulos: False statements
  6. Paul Slough, Manslaughter (Blackwater Nisour Square)
  7. Nicholas Slatten: Murder (Blackwater Nisour Square)
  8. Evan Liberty: Manslaughter (Blackwater Nisour Square)
  9. Dustin Laurent Heard: Manslaughter (Blackwater Nisour Square)
  10. Roger Stone: Obstruction of a proceeding, false statements, witness tampering
  11. Paul Manafort: Conspiracy to defraud the US (money laundering and FARA), conspiracy to obstruct (witness tampering)
  12. Robert Coughlin: Conflict of interest
  13. Todd Boulanger: Wire fraud
  14. Elliot Broidy: Conspiracy to violate FARA
  15. Douglas Jemal, Wire fraud
  16. Aviem Sella, Espionage

Four of these men lied to cover up Trump’s own Russian ties; a fifth, the son-in-law of Alfa Bank oligarch German Khan, Alex Van Der Zwaan, lied to cover up Manafort’s past Ukraine graft. A sixth, Elliot Broidy, did fundraising for Trump.

These are Trump’s people.

A lot of Republicans are wailing that Trump shouldn’t be prosecuted in DC. Marsha Blackburn is arguing that Trump should be treated differently than her constituents Lisa Eisenhart and Eric Munchel, who were prosecuted for conspiracy to obstruct the vote count, just like Trump is facing. Tim Scott is arguing that Trump should be treated differently than his constituent George Tenney, who was prosecuted for obstructing the vote count, just like Trump is facing.

But if anything, it is more appropriate to prosecute Trump in DC than Munchel (Zip Tie Guy) and Tenney (who opened the East Door of the Capitol). After all, he was a resident of DC when his alleged crimes were committed.

More importantly, even just the list of those he pardoned make it clear that Prettyman felons are his kind of people. Donald Trump is precisely where he belongs today.

Unlike Michael Sussmann, Patrick Byrne Was Not Prosecuted for Providing Allegedly False Tips to the Government

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Among the many records on the Durham investigation DOJ newly released to American Oversight on June 1 is an email, dated August 23, 2019, from Seth DuCharme to Durham and one of his aides revealing that “Overstock CEO gave info to DOJ for John Durham’s review of Russia investigation origins.”

We can be fairly sure what Byrne provided DOJ because he first went on Fox and CNN and laid it all out there. His excuse for getting laid by Maria Butina, he said, was that Peter Strzok told him to do it as an investigative ploy (the reasons why have never really made sense).

“I figured out the name of who sent me the orders and this has been confirmed. The name of the man who sent me was Peter Strzok,” Byrne exclaimed, naming the embattled former FBI agent at the center of the right’s Spygate conspiracies. “This is going to be quite a whirlwind.”

At times bursting into tears, Byrne alleged there was a “big coverup” of “political espionage” that was connected to President Trump, Hillary Clinton, Marco Rubio and Ted Cruz, insisting that “this is not a theory” of his because he was “in the room when it happened.”

“Both catching my friend’s murderer and taking on Wall Street were consistent with my values and it was my honor to help the Men in Black and it was the third time that they came to me,” he said at one point. “And I got some request, I did not know who the hell it came from and it was fishy and three years later on watching television and I realized who it was—it was Peter Strzok and [former Deputy FBI Director] Andy McCabe, that the orders came from.”

Byrne said he decided to come forward with his Deep State concerns because he felt guilty for recent mass shootings.

“But the issue is, I realized that these orders I got came from Peter Strzok, and as I put together things, I know much more than I should know and tried to keep silent,” he said. “Everyone in this country has gone nuts, and especially for the last year when I realized what I know, every time I see one of these things, somebody drives 600 miles to gun down 20 strangers in the mall, I feel a bit responsible.”

[snip]

“No doubt Peter Strzok would watch this and say he’s full of it, I had nothing to do with anything,” the Fox News anchor stated.

Here is my first post on the allegations, written the same day as this Seth DuCharme email.

Strzok would ultimately deny the allegations about him specifically.

In early November, he told me that he had never met Byrne, and had “no awareness” of him before reading about him in the news in August, 2019. When I asked about one of Byrne’s most incendiary claims—whether an F.B.I. agent might instruct someone to pursue a romantic relationship with a suspect in order to gather intelligence—Strzok said that the Bureau had thirteen thousand agents, and that, though he couldn’t dismiss Byrne’s story out of hand, it sounded “extraordinarily fantastical.” He went on, “This isn’t some James Bond film—we don’t tell people, ‘Go bed this vixen for your country.’ ”

And, unless I missed it in John Durham’s report, he did not even include this among the things he investigated.

It’s hard to know how seriously DOJ took it, but DuCharme’s involvement shows it had the same kind of high level interest as the Alfa Bank anomalies. One of Bill Barr’s key advisors was involved in it. And whatever heed DOJ paid to it, would be hard to take Byrne’s allegations less seriously than the Cyber agents who dismissed the Alfa Bank anomalies in barely more than a day, making substantial errors along the way.

Plus, DOJ withheld this information under a b7A exemption, reflecting that it was treated as part of an ongoing investigation, until Durham finished. Someone at DOJ treated this with enough seriousness to bury for four years. Which raises the prospect that Durham believed it was sound to criminalize Michael Sussmann, a Democratic lawyer sharing a honestly held tip, but chose to do nothing about a guy with ties to a convicted Russian agent sharing wild conspiracies.

And here we are, four years later, and Byrne continues to share wild conspiracies, most that undermine American democracy.

And now, amid reports that Jack Smith is zeroing in the December 18, 2020 meeting at which Patrick Byrne and others pitched seizing voting machines, Byrne is suggesting he has — and plans to release — kompromat on Smith (he may have deleted this but this thread repeats the theme).

I’m not saying Byrne should have been prosecuted for making unsubstantiated claims about the Russian investigation — unless the government can tie his motive to Butina’s operation.

I’m saying the contrast with what Durham did with Michael Sussmann and what he didn’t do with Byrne is a stark indicator that he would criminalize Democratic politics while ignoring crazy conspiracies from someone with direct ties to a Russian influence operation.

Update: Added a second part from the FOIA. h/t Brian Pillon.

Andrew DeFilippis Had a Role in the Prosecution of Gal Luft’s Co-Conspirator-1

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James Comer plans to rely on Gal Luft’s testimony in his efforts to gin up conspiracy theories against Joe Biden, even in spite of the indictment against Luft DOJ obtained before James Comer started pursuing his conspiracy theories.

Andrew DeFilippis handled the classified evidence in the Patrick Ho case

Because of that, I want to flag a detail about the Patrick Ho case, the case out of which this one arose.

Ho is the person described as Co-Conspirator-1 in the Luft indictment.

Ho was sentenced on March 25, 2019 for bribing Chadian and Ugandan officials; the former scheme started in a suite in Trump Tower in 2014.

Through a connection, HO was introduced to Cheikh Gadio, the former Minister of Foreign Affairs of Senegal, who had a personal relationship with President Déby. HO and Gadio met at CEFC China’s suite at Trump World Tower in midtown Manhattan, where HO enlisted Gadio to assist CEFC China in obtaining access to President Déby.

Days after Ho was sentenced, the two lead prosecutors on that case, Catherine Ghosh and Daniel Richenthal, flew to Brussels to meet with Luft. As alleged in the indictment, Luft lied to those prosecutors and four FBI agents about both the arms deals and Chinese influence peddling for which he has since been charged.

64. On or about March 28, 2019, in the Southern District of New York, Belgium, and elsewhere outside of the jurisdiction of any particular State or district of the United States, GAL LUFT, the defendant, who is expected to be first brought to and arrested in the Southern District of New York, a matter within the jurisdiction of the executive branch of the Government of the United States, knowingly and willfully made a materially false, fictitious, and fraudulent statement and representation, to wit, LUFT falsely stated during an interview at the United States Embassy in Brussels, Belgium with federal law enforcement officers and prosecutors, in connection with an investigation being conducted in the Southern District of New York, that LUFT had not sought to engage in or profit from arms deals, and instead merely had been asked by an Israeli friend who dealt in arms to check arms prices so that the friend could use this information in bidding on deals, a request that LUFT said he fulfilled by having CC-1 check prices with CC-2 and then relay this information to LUFT–when in fact LUFT had actively worked to broker numerous illegal arms deals for profit involving multiple different countries, both in concert with CC-1 and directly himself, including as described in paragraphs Forty-Four through Fifty-Three above.

[snip]

84. On or about March 29, 2019, in the Southern District of New York, Belgium, and elsewhere outside of the jurisdiction of any particular State or district of the United States, GAL LUFT, defendant, who is expected to be first brought to and arrested in the Southern District of New York, in a matter within the jurisdiction of the executive branch the Government of the United States, knowingly and willfully made a materially false, fictitious, and fraudulent statement and representation, to wit, LUFT falsely stated during an interview at the United States Embassy in Brussels, Belgium with federal law enforcement officers and prosecutors, in connection with an investigation being conducted in the Southern District of New York, that LUFT had tried to prevent CEFC China from doing an oil deal with Iran, that LUFT had been excluded from CEFC China meetings with Iranians, and that LUFT did not know of any CEFC China dealings with Iran while he was affiliated with the company–when in fact, including as described above in paragraphs Sixty-Six through Eighty, LUFT personally attended at least one meeting between CEFC China and Iranians and assisted in setting up additional such meetings for the purpose of arranging deals for Iranian oil, and also worked to find a buyer of Iranian oil while concealing its origin.

Starting in early 2018, DeFilippis handled the classified evidence on the Ho case — both CIPA and a FISA order. He would have spent a great deal of time reviewing what the spooks had obtained on Ho and his associates, undoubtedly including Luft.

Andrew DeFilippis investigated John Kerry for a year

DeFilippis’ efforts on the Ho case took place in parallel with his efforts to gin up a criminal investigation against John Kerry. Here’s how Geoffrey Berman described being ordered to do that by Main Justice.

On May 9, the day after the second Trump tweet, the co-chiefs of SDNY’s national security unit, Ferrara and Graff, had a meeting at Main Justice with the head of the unit that oversees counterintelligence cases at DOJ, which is under the National Security Division.

He said that Main Justice was referring an investigation to us that concerned Kerry’s Iran-related conduct. The conduct that had annoyed the president was now a priority of the Department of Justice. The focus was to be on potential violations of the Logan Act.

[snip]

From the outset, I was skeptical that there was a case to be made. I knew enough about the Logan Act to have strong doubts. Politicians from both sides of the aisle have talked about it from time to time, suggesting that some opponent is in violation of it. It never goes anywhere.

But I figured if they bring us a possible case, we’ll do our best. We’ll look into it. We brought a prosecutor from the national security unit, Andrew DeFilippis, into the investigation.

Trump, meanwhile, kept on tweeting. “John Kerry had illegal meetings with the very hostile Iranian Regime, which can only serve to undercut our great work to the detriment of the American people,” he wrote that September. “He told them to wait out the Trump Administration! Was he registered under the Foreign Agents Registration Act? BAD!”

DeFilippis’ efforts extended into 2019, overlapping with the trial of Ho and the interview with Luft. National Security prosecutors at Main Justice kept pressuring SDNY to advance the investigation into Kerry, but first, Berman had DeFilippis research whether the Logan Act would be chargeable even if Kerry had committed it.

The next step would have been to conduct an inquiry into Kerry’s electronic communications, what’s known as a 2703(d) order. That would have produced the header information—the to, from, date, and subject fields—but not the contents. I decided that before moving forward, it made sense to evaluate whether we would ever have a viable, appropriate charge that matched up with Kerry’s alleged conduct.

At the risk of stating the obvious, under our system of law, pissing off the president is not a chargeable offense. I asked DeFilippis to conduct additional legal research into the Logan Act and other potentially applicable theories. “Look, we’re talking about going to the next step here,” I said.

“But before we do any further investigation, I want to know what the law is on the Logan Act. Let’s say we gather additional documents—I want to know, how is that helping us?”

I wanted to answer the question, even if these things happened, was it a crime? Let’s cut to the chase and find that out, because we’ve got plenty of other work to do and I don’t want us to just be spinning our wheels on this.

For the next several months, DeFilippis conducted extensive research into the Logan Act as well as statutes relating to possible criminal ethics violations by former senior government employees.

On April 22, 2019, Trump tweeted, “Iran is being given VERY BAD advice by @JohnKerry and people who helped him lead the U.S. into the very bad Iran Nuclear Deal. Big violation of Logan Act?”

The tweet was in the morning. That afternoon, Ferrara got a call from Main Justice. He was told that David Burns, the principal deputy assistant attorney general for national security, wanted to know why we were delaying. Why had we not proceeded with a 2703(d) order—the look into Kerry’s electronic communications?

The next day, Burns spoke to Ferrara, Graff, and DeFilippis and repeatedly pressed them about why they had not submitted the 2703(d) order. The team responded that additional analysis needed to be done before pursuing the order.

SDNY decided not to pursue the case against Kerry in fall of 2019.

We spent roughly a year exploring whether there was any basis to further investigate Kerry. Memos were written, revised, and thoroughly discussed.

Our deep dive into the Logan Act confirmed why no one has ever been successfully prosecuted under it in the more than 220 years it has been on the books: the law is not useful. It definitely does not prohibit a former US secretary of state from talking to a foreign official. We did not find that Kerry violated any ethics statutes or any laws having to do with the improper handling of classified material.

In September 2019, DeFilippis advised the National Security Division at Main Justice that we would not be pursuing the case further. He had earlier attempted to tell the specific NSD attorney assigned to the case of our decision, but he couldn’t connect because that attorney was engaged in another matter: the Craig trial.

Sometime after that, DeFilippis became the lead prosecutor on the Durham team, leading the prosecution of Michael Sussmann.

Andrew DeFilippis oversaw the most abusive parts of the John Durham prosecution

Over the course of the Michael Sussmann prosecution, DeFilippis and his prosecution team:

As noted above, Geoffrey Berman boasted that the investigation into Kerry didn’t leak. Even ignoring the inexplicably perfect concert between Alfa Bank’s efforts and Durham’s, it’s not clear the same can be said about the Durham investigation.

And it’s not just that DeFilippis routinely tried to introduce evidence that served his narrative rather than matched the facts. It’s that DeFilippis repeatedly — most notably in the alleged complaint that researchers working on a DARPA project would attempt to identify which Russians were interfering in the US election — proved more sympathetic of Russian efforts to help get Trump elected than to conduct an ethical prosecution.

Last August, shortly before Durham confessed the utter humiliation of his team at the hand of Sergei Millian, DeFilippis withdrew from the Durham team with almost no notice, left DOJ, and returned — in a Special Counsel role, not as Partner — to Sullivan & Cromwell.

These are just data points. There is no reason, yet, to believe that DeFilippis continues to unethically gin up conspiracy theories against Democrats.

But they are data points I thought worth collecting in one place.