The Frothy Right’s Redaction-Ray Glasses in Defense of Roger Stone

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Update: As Fox first reported and WaPo has written up, the highers up at DOJ have now announced they’re going to change the sentencing guidelines submitted last night. This means they’re arguing that Stone should not have the guidelines sentence submitted by the Probation Office.

As noted yesterday, I think prosecutors larded on upward enhancements in their sentencing memo for Roger Stone — though as Stone’s own sentencing memo makes clear, those enhancements came from the Probation Office.

But in Stone’s argument — and that of his acolyte, Chuck Ross — against those enhancements, they just make shit up, including but not limited to the Mueller Report.

Stone invests much, for example, in a claim that Mueller had access to both Jerome Corsi and Randy Credico (but doesn’t mention that he has repeatedly said he would not cooperate with any investigation, which is precisely the point, and probably one reason prosecutors are asking for a harsh sentence).

As discussed above, the Office of the Special Counsel had access to both Jerome Corsi and Randy Credico, as well as to the communications between Stone and each of them, and found no evidence of any connection to Russia. Stone’s convictions for obstruction of justice and witness tampering should similarly be viewed in the broader context of the investigation. In other words, Stone stands convicted for having sought to conceal information ultimately determined to be of no investigative value. Neither Corsi, nor Credico, nor any of their communications provided any useful information in the investigation into election interference.

Stone’s buddy, Chuck Ross, goes further, utterly misstating the results of various investigations.

Despite Democrats’ and the special counsel’s initial suspicions that Stone conspired with Russia or WikiLeaks, investigators found no evidence that the Trump associate had direct contact with anyone involved in stealing or disseminating Democrats’ emails.

The special counsel’s report said that investigators found no evidence that any Trump associates worked with Russia or WikiLeaks to release Democrats’ emails.

Both are absolutely, brazenly lying about the record.

I guess both stances were necessary to justify Trump’s wails of injustice.

In both the GRU indictment and the Mueller Report, Mueller showed that Stone did have direct contact with someone involved in the dissemination of Democrats’ emails, Guccifer 2.0. And even the unredacted parts of report show that witnesses said Stone had knowledge of emails before they were released and the ultimate transfer of the ones he knew of, the Podesta emails, remained undetermined back in March 2019.

Plus, neither Stone nor Ross have the basis to make such claims, unless they have x-ray vision (and unless Stone violated his protective order by sharing with Ross).

There are significant sections (this is page 57) — which remains redacted for us but which Stone got in unredacted fashion and Judge Amy Berman Jackson reviewed closely in response to Stone’s effort to get the entire report in unredacted fashion — that likely lays out how important it would be to have truthful testimony from Stone.

And there are sections that Stone has not seen in unredacted fashion at all, such the entirety of page 177 (or the ongoing and referred prosecutions, three of which pertain to Stone’s trial).

More amusing still, further claims that Stone makes actually undermine his point. He compares two Senate Intelligence Reports on entirely different subjects to claim his false testimony didn’t harm the House Intelligence Committee’s ability to find the truth.

It is speculation that HPSCI’s Report on Russian Active Measures, released March 22, 2018, is “erroneous.” To the contrary, the “Report of the Select Committee on Intelligence United States Senate on Russian Active Measures Campaigns and Interference in the 2016 U.S. Election,” Volumes 1 and 2, and the Special Counsel’s “Report on the Investigation Into Russian Interference in the 2016 Presidential Election,” Volumes I and II, made findings consistent with those found in the publicly available, redacted HPSCI Report. In other words, even had Stone testified differently and even had Credico testified before HPSCI, the conclusions drawn in its report would not have been materially different.

Thus, Probation’s claim that the HPSCI Report “lacked valuable information which would have been provided by witnesses who chose not to testify” (PSR ¶77) grossly overstates the importance and significance of Roger Stone (and Randy Credico).

Not only has SSCI not released their report on Trump’s possible coordination with WikiLeaks yet (and it is likely to be shown to have shortcomings when it is finally released), but a report released last week (in time to be cited in this memo) suggests there’s far more we don’t know about both WikiLeaks and Guccifer 2.0.

From there, Stone makes much of where Credico’s testimony shows up in the Mueller Report, without mentioning the significant passages where Corsi’s (still redacted to us) testimony makes clear the big questions remaining about Stone’s role.

In the end, Credico was mentioned on five pages of the Special Counsel’s Report, not mentioned in either volume of the Senate Intelligence Report, and not mentioned at all in the HPSCI Majority Report. He was mentioned on two pages of the HPSCI Minority Report, where they noted that Stone identified Credico to the Committee.

Ultimately, though, as has been true in the past, the specific forms of Stone’s denials are as interesting that he’s making them.

In the end, the investigations yielded no evidence of the involvement of any American with the Russian government or any agent operating on its behalf to interfere in the 2016 election. It is also undisputed that Roger Stone had nothing to do with obtaining the compromised emails or providing them to WikiLeaks.

Just on its face and based off unredacted passages, the first is questionable, as the Mueller investigation provided ample evidence that WikiLeaks served as an agent of Russia, and Stone has obstructed the true nature of his ties to WikiLeaks. Given the uncertainty regarding how the Podesta emails got to WikiLeaks — and Craig Murray’s claims to have been involved in that process with someone telling similar bogus stories to the ones Stone is still telling — it is far from undisputed that Stone had nothing to do with the process. Plus, this trial was not about whether he provided them to WikiLeaks; it was about whether he optimized their release via some cutout.

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Timothy Shea Signs Off on Aggressive Sentencing Recommendation for Roger Stone

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Update: As Fox first reported and WaPo has written up, the highers up at DOJ have now announced they’re going to change the sentencing guidelines submitted last night. This means they’re arguing that Stone should not have the guidelines sentence submitted by the Probation Office.

I’ll have more to say about the government’s sentencing memorandum for Roger Stone once Stone submits his. But I want to emphasize something notable about the recommended sentence of 87-108 months: it’s that prosecutors recommended a sentence at all.

Up until now, the government has placed sentencing, within guideline ranges, into the judge’s hands, as laid out explicitly in the second Paul Manafort sentencing memo.

Consistent with the practice the Special Counsel’s Office has followed, the government does not take a position with respect to a particular sentence to be imposed. Instead, the government sets forth its assessment of the nature of the offenses and offender and the applicable advisory sentencing guidelines and sentencing factors.

As recently as January 29, they took a similar stance with Mike Flynn, repeating “guidelines sentence” when they wanted Judge Emmet Sullivan to sentence him favorably, “guidelines sentence” when they wanted to punish him for reneging on his plea deal, and “guidelines sentence” when they backed off that somewhat.

Prosecutors were far more aggressive with Stone, though, adding on four sentencing enhancements — one hefty, for the threat to Randy Credico, who wrote a letter asking for leniency —  and calling for real punishment at the end.

Roger Stone obstructed Congress’s investigation into Russian interference in the 2016 election, lied under oath, and tampered with a witness. And when his crimes were revealed by the indictment in this case, he displayed contempt for this Court and the rule of law. For that, he should be punished in accord with the advisory Guidelines.

Just as interestingly, the newly appointed US Attorney approved this aggressive stance, though not without some pushback.

Front-line prosecutors, some previously with Mueller’s team, argued for a sentence on the higher end for Stone than some of their supervisors were comfortable with, according to two people familiar with the discussions.

A recommendation on the higher end prevailed, with prosecutors’ filings citing federal sentencing guidelines that ratchet up in cases involving obstruction that impedes the administration of justice.

[snip]

Hours before the filing was due Monday, the new head of the D.C. office, interim U.S. attorney Timothy Shea — a former close adviser to Attorney General William P. Barr — had not made a final decision on Stone’s sentencing recommendation, according to the people, who were granted anonymity to discuss internal deliberations.

Disagreements among prosecutors about sentencing recommendations are not uncommon, especially when it comes to politically sensitive high-profile cases. It would have been unusual, however, for the U.S. attorney’s office to endorse a sentence below the guideline range after winning conviction at trial, according to former federal prosecutors.

I think WaPo understates how aggressive this memo is, and I suspect Judge Amy Berman Jackson will find it so too (I wouldn’t be surprised if Stone pushed for probation to 12 months).

And, as WaPo notes, it’s the Mueller prosecutors left on the team (just Aaron Zelinsky and Adam Jed remain on the team) who pushed for this aggressive stance.

 

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Bill Barr’s Chosen US Attorney Signs Off on Aggressive Response to Mike Flynn

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When Bill Barr suddenly replaced DC US Attorney Jessie Liu the day after the Senate acquitted Trump, I grew wary of why he replaced a solid Trump appointee with his own close aide, Timothy Shea.

I fully expect the move was designed to minimize the damage of ongoing investigations into Trump’s flunkies and may well be an effort to prosecute more of Trump’s perceived enemies, like Andrew McCabe.

But in one of the first signals of whether Shea will interfere in sensitive prosecutions, the ongoing sentencing of Mike Flynn, Shea signed off on an aggressive next step.

That’s one of the key takeaways from two filings submitted today, the first asking for an order finding that Flynn has waived all attorney-client privilege with respect to Covington & Burling’s representation of him (including with those who worked on Flynn’s behalf, which might include researchers and tech contractors) in regards to his motion to withdraw his guilty plea, and the second asking for a continuance — possibly a significant one — to work with Covington to obtain information and materials to respond to Mike Flynn’s claims that Covington provided incompetent advice to him.

Bill Barr’s close associate Shea signed off on this, but Brandon Van Grack did not, which likely means that the government is preparing for the possibility (invited by Judge Emmet Sullivan’s suggestion he wants to hold an evidentiary hearing with sworn witnesses) that Van Grack will testify about discussions with Flynn and his lawyers, too.

That is, we may be headed towards a hearing in which we see top Covington lawyers, their contractors (I suspect their tech contractors have an interesting story to tell about how Flynn Intelligence Group materials were made unavailable after the 2016 election, thereby making key documents unavailable for Covington to review before completing the FARA filing), the other lawyer they advised he consult after first making sure he did not have a conflict, and Van Grack testify about how much lying and obstruction Flynn engaged in, with just Flynn and his wife (having probably already waived spousal privilege by submitting a declaration in this matter) arguing to the contrary.

Another takeaway is that Covington wants this opportunity to tell what a shitty client Flynn was.

While Covington has indicated a willingness to comply with this request, it has understandably declined to do so in the absence of a Court order confirming the waiver of attorney-client privilege.

They just want the legal and ethical cover of an order from Judge Sullivan. The government is asking for over a week extension from the existing deadline — currently noon on this Wednesday, February 12 — before they propose to submit a status report at noon on Thursday, February 20. That suggests they imagine, having consulted with Covington, that there may be a good deal to talk about, with regards to what a shitty client Mike Flynn was.

A subtle point about this request: I believe that the government is asking for this, and justifying it, based off Flynn’s complaint not just that his Covington lawyers should have gotten the details about FARA correct, and having not done so had an unwaivable conflict in representing Flynn going forward, but also that they allegedly did not tell Flynn that the FBI agents who originally interviewed him believed that he had a “sure demeanor,” which would have led him not to plead guilty had he been told.

the defendant contends that (1) his attorneys did not disclose to him that the interviewing agents believed he had a “sure demeanor” and that he did not show signs of deception, and he would not have pleaded guilty if his attorneys had disclosed this to him

This is significant because in the Bijan Kian case, Judge Anthony Trenga ruled that Covington’s work on the FARA application was not covered by privilege.

Notwithstanding the near absolute immunity enjoyed by attorney opinion work product, where that work product relates centrally to the actions or conduct of a lawyer at issue in a case, such that consideration of the attorney’s opinion work product, including their recollections and impressions, are essential to a just and fair resolution, opinion work product protections otherwise applicable do not apply. See, e.g., In re John Doe, 662 F.2d 1073, 1080 (4th Cir. 1981) (finding no opinion work product protection where attorney’s prior representation was a target of the grand jury investigation); Sec. Exch. Comm’n v. Nat’l Student Mktg. Corp., 1974 WL 415, *3–4 (D.D.C. June 25, 1974) (finding no opinion work product protection where at issue was what a law firm did and did not know). Here, while there is no contention that Covington or Verderame committed any crime, what they did and why is central to this case as their actions are claimed to have resulted in a crime attributable to Rafiekian. For these reasons, any opinion work product by Covington or Verderame that pertains to the FARA filing is not protected.

I believe that means that the already substantial evidence submitted in the context of that case, including notes and testimony clearly showing that Flynn lied to Covington lawyers as they were preparing the FARA filing, can be entered into this proceeding.

What the government is asking for, then, is that Covington’s attorney-client obligations to Flynn be waived on the case in chief here, his lies about Russia. Indeed, that’s what the bulk of the conflicting sworn Flynn statements laid out in the government filing pertain to.

On December 1, 2017, the defendant entered a plea of guilty to “willfully and knowingly” making material false statements to the FBI on January 24, 2017, regarding his contacts with the Russian Ambassador. See Information; SOF at ¶¶ 3-4.1 In addition, in the Statement of the Offense, the defendant admitted that he “made material false statements and omissions” in multiple documents that he filed on March 7, 2017, with the Department of Justice pursuant to FARA, which pertained to a project for the principal benefit of the Republic of Turkey. See SOF at ¶ 5.

On November 30, 2017, defendant Flynn signed the Statement of the Offense, acknowledging: “I have read every word of this Statement of the Offense, or have had it read to me . . . . I agree and stipulate to this Statement of the Offense, and declare under penalty of perjury that it is true and correct.” See SOF at 6. During his initial plea hearing, defendant Flynn was shown this signature, and he acknowledged under oath that it was his. See Plea Tr. at 13-14, United States v. Flynn, No. 17-cr-232 (D.D.C. Dec. 1, 2017) (“12/01/2017 Plea Tr.”). Thereafter, the government read the Statement of the Offense into the record. See id. at 14-18. The defendant was asked by the Court, “Is that factual summary true and correct?,” and the defendant replied, “It is.” Id. at 18. The Court then asked whether the defendant believed the government could prove those facts at trial, to which the defendant replied “yes.” Id. at 19. Defendant Flynn was also asked at this hearing whether he had sufficient time to consult with his attorneys, to which he replied “yes,” and whether he was satisfied with the services they had provided him, to which he also responded “yes.” Id. at 6.

Defendant Flynn was originally scheduled to be sentenced on December 18, 2018. Prior to that hearing, the government submitted a sentencing memorandum that described defendant Flynn’s knowing and willful material false statements to the FBI, and his material false statements and omissions in multiple FARA filings. See Gov’t Sent’g Memo at 2-5. In his own filing, the defendant reiterated that he “d[id] not take issue” with the government’s description of his conduct. See Def. Sent’g Mem at 7 (citing Gov’t Sent’g Memo at 2-5).

As I noted, Flynn’s sworn statements in this preceding are in unreconcilable conflict, both as regards to FARA and as regards to his claim to have lied to the FBI about his conversations with Sergei Kislyak and his more recent claim that he did not lie. But by getting Covington a waiver to talk about the latter, the government intends to get abundant evidence to prove that’s true of both sets unreconcilable conflicting sworn statements, the ones about his work for Turkey and the ones about lying to the FBI about Russia.

And they make it clear they may charge Flynn with perjury once they do that, because they want Sullivan to approve that use in his order.

The order also should make clear that if the defendant’s Supplemental Motion to Withdraw his Plea of Guilty is granted, the Court may consider additional questions of the limitation on the use of this information in any subsequent trial. This limitation on the use of information should not, however, preclude the government from prosecuting the defendant for perjury if any information that he provided to counsel were proof of perjury in this proceeding.

If Sullivan approves this (and he seems to be thinking along the same lines), it means either Flynn’s motion to withdraw will be refused after Covington provides the court with additional evidence of perjury, or it will be approved after Covington provides the government with additional evidence of perjury, which the government — including the newly appointed US Attorney for DC — would then use to prosecute Flynn for perjury.

Flynn’s lawyers — who, remember, decided to risk their client’s freedom on a claim that Covington lawyers were incompetent — seem uninterested in letting the government prepare for a hearing the judge in this case has made fairly clear he intends to hold.

The government conferred by e-mail with counsel for the defendant. In response to the government’s request to amend the briefing schedule in this case, defense counsel wrote: “Our position is that at the minimum, the Department of Justice should agree to withdrawal of the plea. Accordingly, we oppose any further extension of the briefing schedule.”

But even if Sullivan denies this motion, even if Sullivan doesn’t sign the order giving Covington the cover to explain how much Flynn lied to them, the government still has adequate time to prove their case by the existing deadline on Wednesday.

It was clear going back to the early January submission of the sentencing memorandum that Flynn’s case is being very carefully reviewed by the DOJ hierarchy. That’s unlikely to have changed with the changeover in US Attorney. Which suggests that whatever else Barr’s appointment of Timothy Shea means, it likely also means that DOJ institutionally supports this aggressive response to Flynn’s gamesmanship on his guilty plea.

Update: I’m increasingly baffled by all of this, but I think this may be Sidney Powell blinking. She agrees to the continuance claiming (without explaining that she has consulted with the government) that the basis for the government’s request has changed since they emailed and asked whether they were cool with a week-long delay.

Both the relief requested and the reasons underlying the government’s Motion to Amend have changed since it conferred with the defense earlier last week. Given the government’s Motion to Confirm Waiver, which raises issues the government did not mention previously, Michael T. Flynn (“Mr. Flynn”) does not oppose the Court granting a stay of the briefing schedule with a status report due from the parties by February 20, 2020. However, it is imperative that Mr. Flynn have time to brief the issues raised by the government’s new motion regarding the attorney-client privilege.

This could be because someone got through to Flynn and explained he was facing prison on this charge and perjury charges and implored him to withdraw his request to withdraw his plea. It could be because Shea — or Barr — has decided to weigh in. It could be that, given the government’s softer request for a guidelines sentence, Flynn has cut his losses.

All this time, Sullivan has been unusually quiet.

Update: Maybe I’m missing Flynn’s response. On second thought, I think they’re claiming (who knows if it’s true) that last week the government asked for an extension for one reason, and now they’re asking for another. Which would make the inclusion of Shea on this all the more interesting, if it is true, which it’s probably not.

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The Black Hole Where SSCI’s Current Understanding of WikiLeaks Is

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Four years after it started, the Senate Intelligence Committee continues its investigation into Russia’s 2016 election interference, this week releasing the report on what the Obama Administration could have done better. For a variety of reasons, these reports have been as interesting for their redactions or silences as for what the unredacted bits say.

This latest report is no different.

Putin responded to Obama’s warnings by waggling his nukes

The most interested unredacted bit pertains to Susan Rice’s efforts, scheduled to occur just before ODNI and DHS released their report attributing the hack to Russia, to warn Russia against continuing to tamper in the election. That would place the meeting at just about precisely the moment the Access Hollywood video and Podesta email release happened, a big fuck you even as Obama was trying to do something about the tampering. The meeting also would have occurred during the period when Sergei Kislyak was bitching about FBI efforts to prevent Russia from sending election observers to voting sites.

The description of the meeting between Rice and Kislyak is redacted. But the report does reveal, for the first that I heard, that Russia responded to being warned by raising its nukes.

Approximately a week after the October 7. 2016. meeting, Ambassador Kislyak asked to meet with Ambassador Rice to deliver Putin’s response. The response, as characterized by Ambassador Rice, was “denial and obfuscation,” and “[t]he only thing notable about it is that Putin somehow deemed it necessary to mention the obvious fact that Russia remains a nuclear power.”

This exchange is all the more interesting given that there’s an entirely redacted bullet (on page 37) describing actions that “Russian cyber actors” took after Obama warned Putin. Given that the state and county scanning and the alleged hack of VR Systems shows up, there’s something we either still don’t know about or SSCI continues to hide more details of the VR Systems hack.

The page long post-election response to the election year attack

The longest subsection in a section devoted to describing Obama’s response is redacted (pages 39-41).

Here’s what the timing of the unredacted parts of that section is:

  • A: Expulsion of Russian diplomats (December 29, 2016)
  • B: Modifying the EO and sanctions (December 29, 2016)
  • C: redacted
  • D: Cybersecurity action in the form of the issuance of two technical reports (December 29, 2016 and February 10, 2017)
  • E: Tasking the ICA Report (initiated December 6, 2016; completed December 30, 2016; published January 5 and 6, 2017)
  • F: Protecting election infrastructure (January 5, 2017)

That might suggest that whatever secret action the Obama Administration took happened right in December, with everything else.

John Brennan was proved fucking right

There’s a redacted passage that may undermine the entire premise of the John Durham investigation, which purports to review what agencies, other than FBI, did to lead to an investigation focused on Trump’s campaign. Some reporting suggests Durham is investigating whether CIA tricked FBI into investigating Trump’s flunkies.

But this report describes how, in spite of knowing about related Russian hacks in 2015 and Russia’s habit of leaking information they stole, the IC really wasn’t aware of what was going on until John Brennan got an intelligence tip during the summer of 2016. That intelligence tip was described at length in a WaPo story that resembles this section of the report.

Early last August, an envelope with extraordinary handling restrictions arrived at the White House. Sent by courier from the CIA, it carried “eyes only” instructions that its contents be shown to just four people: President Barack Obama and three senior aides.

Inside was an intelligence bombshell, a report drawn from sourcing deep inside the Russian government that detailed Russian President Vladi­mir Putin’s direct involvement in a cyber campaign to disrupt and discredit the U.S. presidential race.

But it went further. The intelligence captured Putin’s specific instructions on the operation’s audacious objectives — defeat or at least damage the Democratic nominee, Hillary Clinton, and help elect her opponent, Donald Trump.

At that point, the outlines of the Russian assault on the U.S. election were increasingly apparent. Hackers with ties to Russian intelligence services had been rummaging through Democratic Party computer networks, as well as some Republican systems, for more than a year. In July, the FBI had opened an investigation of contacts between Russian officials and Trump associates. And on July 22, nearly 20,000 emails stolen from the Democratic National Committee were dumped online by WikiLeaks.

But at the highest levels of government, among those responsible for managing the crisis, the first moment of true foreboding about Russia’s intentions arrived with that CIA intelligence.

The section in this report is redacted.

Effectively, this report seems to confirm the WaPo reporting (which may have been based off sources close to those who testified to SSCI). It also emphasizes the import of this intelligence. But for this intelligence, the IC may have continued to remain ignorant of Putin’s plans for the operation.

The IC won’t let SSCI share its current understanding of WikiLeaks

But the most interesting redactions pertain to WikiLeaks.

There are four redacted paragraphs describing how hard it was for the IC to come up with a consensus attribution for the hack and leak operation.

Senior administration officials told the Committee that they hesitated to publicly attribute the cyber efforts to Russia m1til they had sufficient information on the penetration of the DNC network and the subsequent disclosure of stolen information via WikiLeaks, DCLeaks, and Guccifer 2.0.

More interesting still, almost the entirety of the page-plus discussion (relying on testimony from Ben Rhodes, Michael Daniel, Paul Selva, Mike Rogers, and others) of why it took so long to understand WikiLeaks remains redacted.

One reference that is unredacted, however, describes WikiLeaks as “coopted.”

This information would be of particular interest as the prosecution of Julian Assange goes forward. That — and the fact that some of this determination, relying as it does on former NSA Director Mike Rogers, appears to rely on NSA information — may be why it remains redacted.

Update: I’ve deleted the remainder of this post. It came from Wyden’s views, not the report itself.

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Why Hasn’t George Papadopoulos Outed “Source 3”?

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There’s something I’ve been wondering about the DOJ IG Report into Carter Page.

The report revealed details (though not all details) about Stefan Halper’s interactions with George Papadopoulos, Carter Page, and Sam Clovis, which had been previously reported. It debunked Papadopoulos’ claims that some other people — some US defense personnel in the UK, Alexander Downer, Joseph Mifsud, and Israelis offering cash — were FBI informants attempting to entrap him.

But it also revealed that another informant, described as Source 3 in the report, had multiple meetings with Papadopoulos. The person is described as someone with access to Papadopoulos that they recruited — in accelerated fashion — for this purpose.

Case Agent 3 and an Intelligence Analyst identified Source 3 as an individual with a connection to Papadopoulos who may be willing to act as a CHS, based on statements Source 3 had made to the FBI several years prior, during an interview in an unrelated investigation. Source 3 had never previously worked for the FBI as a CHS, and the Delta records for Source 3 state that the opening of this CHS “was accelerated due to operational necessity.”

Case Agent 3 said that he considered Source 3 to be a reliable CHS because Source 3 was always available when the FBI needed Source 3, provided good descriptions of the conversations with Papadopoulos, and the summaries that Source 3 provided to the FBI were corroborated by the consensual monitoring. The FBI performed a human source validation review on Source 3 in 2017, and recommended Source 3 for continued operation.

Papadopoulos and Source 3 met multiple times between October 2016 and June 2017, all of which occurred after the FBI understood that Papadopoulos had ceased working on the Trump campaign. 471 All but one of their meetings were consensually monitored by the FBI; however, not all of them were transcribed by the FBI. Instead, Case Agent 3 said that he and the Intelligence Analyst would review the recordings to find portions that were of investigative interest, and those portions were written up or reviewed.

Papadopoulos clearly trusted this person more than Halper. He told Source 3 that he told Halper the story he had about ties to WIkiLeaks because he expected Halper would, “tell the CIA or something if I’d have told him something else. I assume that’s why he was asking.” He told Source 3 about Sergei Millian (whose ties to Papadopoulos the FBI had already identified). He told Source 3 a version of the Joseph Mifsud story and admitted he was going to try to monetize that relationship.

Source 3 asked Papadopoulos if he had ever met Putin, Papadopoulos said that he was invited “to go and thank God I didn’t go though.” Papadopoulos said that it was a “weird story” from when he “was working at … this law firm in London” that involved a guy who was “well connected to the Russian government.” Papadopoulos also said that he was introduced to “Putin’s niece” and the Russian Ambassador in London. 472 Papadopoulos did not elaborate on the story, but he added that he needed to figure out

how I’m going monetize it, but I have to be an idiot not to monetize it, get it? Even if [Trump] loses. If anything, I feel like if he loses probably could be better for my personal business because if he wins I’m going to be in some bureaucracy I can’t do jack … , you know?

For years, Papadopoulos has been trying to dismiss his guilty plea by saying he was set up by a network of nefarious informants.

And yet he hasn’t revealed who Source 3 — someone he obviously met on multiple occasions — is.

The claims of Marcus DiPaola — someone who claimed to be an informant for the FBI until he recently got exposed by Fox News, before leaking a damning internal Fox report about its own susceptibility to propaganda — got me thinking about this question again. While my own interactions with the FBI make me very skeptical that FBI would work with someone acting as a journalist as an informant, which is what he claims happened. And the timing — DiPaola claims he approached the FBI in January 2016, not earlier as the IG Report describes Source 3 did — doesn’t line up.

So I don’t think DiPaola is Source 3.

But it made me all the more cognizant that Papadopoulos, who never met a real or suspected informant he didn’t burn, has been silent about this person.

Which may hint that Papadopoulos suspects Source 3 could tell a whole lot of truths if he or she were identified that would blow his current schtick.

Update: I just realized that the date of a Fox Report that seems to have come from DiPaola is December 9, the date of the IG Report. So that might support the possibility that he was Source 3.

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The Real News in Bill Barr’s Announcement: He’s Vetoing Campaign Finance Investigations, Too

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Yesterday, NYT broke the news that Attorney General Barr had issued a memo, as promised, requiring his approval before opening an investigation into a presidential candidate. (Update: here’s the memo.)

The memo, which said the Justice Department had a duty to ensure that elections are “free from improper activity or influences,” was issued on the same day that President Trump was acquitted on charges that he had abused his office to push a foreign power to publicly announce investigations into his political rivals. The memo said that the F.B.I. and all other divisions under the department’s purview must get Mr. Barr’s approval before investigating any of the 2020 presidential candidates.

The NBC version of this — written by Barr mouthpiece Pete Williams — falsely suggests this decision was justified by the entirety of the IG Report.

His directive follows a report by the Justice Department’s inspector general that harshly criticized the FBI’s investigation of the 2016 Trump campaign. It recommended an evaluation of the kind of sensitive matters that should require high-level approval, particularly those involving politics.

While the IG Report recommended different practices for sensitive investigations going forward, the report actually showed that a lot of conspiracy theories that Barr had embraced about the opening of the investigation and the use of informants were false. The criticisms — as distinct from recommendations — were largely limited to the Carter Page FISA.

The distinction is important because the other excuse Barr offers is that, if an investigation became known — like both the Hillary email investigation and the Breitbart-dirt predicated Clinton Foundations ones — it might affect the election.

“In certain cases, the existence of a federal criminal or counterintelligence investigation, if it becomes known to the public, may have unintended effects on our elections,” Mr. Barr wrote.

Those concerns, combined with the inspector general’s findings, seemed to underpin Mr. Barr’s memo to top Justice Department officials.

All the evidence in the world suggests that the known problems in Crossfire Hurricane stemmed from the opposite problem, working too hard to keep the investigation secret. Had the FBI not worked so hard to keep it secret, it wouldn’t have been run out of FBI HQ, and so would have had more resources available. Had the FBI not avoided overt steps, it would have obtained call records to indicate that George Papadopoulos (and Paul Manafort and Roger Stone), and not Carter Page, should have been the priority targets. Had the FBI not worked so hard to keep this secret, it might have caught several of Trump’s flunkies in the act of selling out the country. (And all three of those men hid information to prevent their actions from becoming known.) And now Bill Barr wants to make it harder, not easier, to find people selling out our country before they do real damage.

Indeed, this extends even to the larger investigation into Russian interference. SSCI released its report on what the Obama Administration should have done better in 2016 yesterday, and many of the criticisms stem from how closely it held the intelligence about the attack, from Congress, election professionals, and agencies that might respond. (The report also undermined Barr’s justification for the Durham investigation, in that it suggested the IC should have warned policy makers far earlier than happened about Russian intentions, and points to John Brennan’s sensitive intelligence about the operation as the first alarm.)

So the stated purpose doesn’t hold up, as most of Barr’s stated purposes don’t. That’s all the more true when you look at how Barr’s rule has dramatically expanded since he first floated it.

As both NYT and NBC noted, Barr announced the policy in January. The policy, as laid out back then, was far more limited — extending just to counterintelligence investigations.

Attorney General William Barr on Monday announced the Justice Department’s first policy change in response to the FBI’s mucking around in the 2016 election. Henceforth, both an AG and the FBI director must sign off on any proposed counterintelligence investigation into a presidential campaign.

Neither the NYT nor NBC describe any such limitation. Indeed, the make it clear that criminal investigations, including into donors!!!, must be approved.

While the department must respond “swiftly and decisively” to credible threats to the electoral process, “we also must be sensitive to safeguarding the department’s reputation for fairness, neutrality and nonpartisanship,” he wrote.

He previewed the new policy at a news conference in January, when he said his approval would be required in future investigations involving presidential candidates or campaigns.
In the memo, Mr. Barr established a series of requirements governing whether investigators could open preliminary or full “politically sensitive” criminal and counterintelligence investigations into candidates or their donors.

No investigation into a presidential or vice-presidential candidate — or their senior campaign staff or advisers — can begin without written notification to the Justice Department and the written approval of Mr. Barr.

The F.B.I. must also notify and consult with the relevant leaders at the department — like the heads of the criminal division, the national security division or a United States attorney’s office — before investigating Senate or House candidates or their campaigns, or opening an inquiry related to “illegal contributions, donations or expenditures by foreign nationals to a presidential or congressional campaign.”

This rule would have protected the following people from any investigation in 2016:

  • Trump, for paying off former sex partners
  • Paul Manafort, for taking $2.4M after discussing carving up Ukraine to Russia’s liking in 2016
  • Roger Stone, for dark money activity and coordination still unresolved as well as optimizing materials stolen from the Democrats
  • Mike Flynn, for being on Turkey’s payroll while attending Top Secret candidate briefings
  • George Papadopoulos, for trying to monetize his access to Trump with foreign countries including Israel
  • Illegal donations from Russians, Malaysians, Emiratis, and Ukrainians in 2016
  • Illegal coordination between the campaign and its SuperPAC

The only criminal investigations into Trump flunkies that wouldn’t have been covered in 2016 would be the money laundering investigation into Manafort (which started two months before he joined the campaign) and, possibly, the counterintelligence investigation into Page (because his tie to the campaign was not known at the time).

As stated, the rule would require pre-approval for the Ukrainian grifter investigation and any investigation into known coordination problems Trump campaign manager Brad Parscale has engaged in. It would protect not just Trump, but also (because they work on his campaign) his failson and son-in-law.

Plus, Barr believes that because the President can’t be indicted, he should not be investigated. So this is, quite literally, a guarantee that no crime Trump commits between now and election day will be investigated — not even shooting someone on Fifth Avenue  (at the federal level, at least, but DOJ has maintained that NYS cannot investigate the sitting president either). Barr has just announced, using fancy language to avoid headlines describing what this is, that from now until November, he will hold President Trump above the law.

Citizens United has opened up a floodgate of barely hidden cash from foreign donors into our elections. This is not a partisan thing; as noted, Mohammed bin Zayed was dumping huge money into both Hillary and Trump’s campaign. And the Attorney General of the United States has just made it easier for foreigners to tamper in our elections.

Barr has snookered reporters into believing this is the same announcement as he made in January.

It’s not. This is not about spying on a campaign, much as Pete Williams wants to pretend it is. This is about telling Trump and his associates they will not be prosecuted by DOJ, going forward, for the same crimes they’ve committed in the past.

Update: Two more details. The memo requires signed approval by the Deputy Attorney General to open a preliminary investigation of any presidential candidate. But it also requires prompt notice to the Assistant Attorney General for any assessment. That means the AG is demanding that his top deputies learn when someone does a database search.

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Manafort’s Efforts to Insinuate Himself into Trump’s Campaign Earlier Than Previously Known

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The Mueller Report describes Trump’s decision to hire Paul Manafort this way.

Manafort served on the Trump Campaign from late March to August 19, 2016. On March 29, 2016, the Campaign announced that Manafort would serve as the Campaign’s “Convention Manager.”871 On May 19, 2016, Manafort was promoted to campaign chairman and chief strategist, and Gates, who had been assisting Manafort on the Campaign, was appointed deputy campaign chairman.872 Thomas Barrack and Roger Stone both recommended Manafort to candidate Trump.873

In early 2016, at Manafort’s request, Barrack suggested to Trump that Manafort join the Campaign to manage the Republican Convention.874 Stone had worked with Manafort from approximately 1980 until the mid-1990s through various consulting and lobbying firms. Manafort met Trump in 1982 when Trump hired the Black, Manafort, Stone and Kelly lobbying firm.875 Over the years, Manafort saw Trump at political and social events in New York City and at Stone’s wedding, and Trump requested VIP status at the 1988 and 1996 Republican conventions worked by Manafort.876

According to Gates, in March 2016, Manafort traveled to Trump’s Mar-a-Lago estate in Florida to meet with Trump. Trump hired him at that time.877 Manafort agreed to work on the Campaign without pay. Manafort had no meaningful income at this point in time, but resuscitating his domestic political campaign career could be financially beneficial in the future. Gates reported that Manafort intended, if Trump won the Presidency, to remain outside the Administration and monetize his relationship with the Administration. 878

Gates’ description for some of this (two of the cited Gates 302s and all of the Manafort ones have not been released yet) is fairly anodyne:

Thomas Barrack and Roger Stone acted as liaisons between Manafort and the Trump Campaign prior to Manafort’s hiring. Trump had just lost the primary in Wisconsin and then won the primary in Louisiana, but the delegates refused to support him. Trump did not understand the mechanics of delegates and the way the system worked. Barrack and Stone had been lobbying for Trump to hire Manafort for some time and it wasn’t until after the Wisconsin and Louisiana primaries that Trump agreed. Barrack was the person who set up Manafort’s first meeting with Trump, Hicks and Lewandowski in Mar a Lago.

The bolded footnotes in the Mueller passage above derive, at least in part, from Tom Barrack’s 302, which was released yesterday.

That 302 describes the background in more interesting fashion:

In January 2016, knowing of BARRACK’s close association with then U.S. Presidential candidate TRUMP, MANAFORT asked BARRACK to intervene on his behalf to become the convention manager for the TRUMP Presidential Campaign. BARRACK initially thought this was MANAFORT being MANAFORT. In other words, BARRACK described MANAFORT as an opportunist. MANAFORT was a good political strategist and had good ideas. But MANAFORT’s relationship with [redacted] would make it difficult for BARRACK to intervene on his behalf. BARRACK stated MANAFORT’s biggest impediment to joining the campaign was [redacted] who BARRACK described as someone with brilliance and bizarreness all wrapped up into one. Nonetheless, BARRACK met MANAFORT for coffee in Los Angeles, California to discuss the concept. MANAFORT told him TRUMP needed help and MANAFORT was the person who could help TRUMP. At this coffee meeting, MANAFORT also asked BARRACK whether he could do him a favor and give [redacted] a job interview with BARRACK’s company.

BARRACK eventually approached TRUMP with the idea of MANAFORT helping the Presidential campaign but TRUMP dismissed the idea because of MANAFORT’s connection to [redacted]

MANAFORT followed up their coffee meeting with a briefing paper about why the Republican Convention and its delegates were so important to the TRUMP campaign. In February or the beginning of March 2016, BARRACK again approached TRUMP about MANAFORT’s involvement with the Convention, which TRUMP eventually agreed. MANAFORT stated he did not need to be paid by the campaign for his work on the convention, which TRUMP liked because he was paying for the campaign out of his own pocket.

[snip]

BARRACK stated the TRUMP campaign did not conduct any due diligence into MANAFORT’s background before bringing him on to be the Convention Manager. BARRACK described the campaign at the time as amateur, which is why bringing on an experienced political professional like MANAFORT was important. BARRACK also stated STONE, who had a continuing and intermittent relationship with TRUMP, weight in on supporting MANAFORT as the Convention Manager.

Those redactions in bold appear to be 5-characters long, so could well be Stone. The convention in 302s is to introduce someone’s full name then include it in parentheses, but Stone would have been introduced pages earlier when Barrack described meeting Manafort’s business partners from when Stone was a named partner. As noted, Stone shows up a paragraph later in the 302 in the same kind of context.

Whoever it is, the exemptions in that paragraph include b7A, ongoing investigation.

Whoever the redacted name, that Manafort was affirmatively asking for the Convention Manager job as soon as January is of particular interest. That’s when DOJ opened the money laundering investigation into Manafort, after all. That was after the time when Felix Sater was pitching the Trump Tower deal.

And significantly, it raised the stakes on Trump’s failure to manage his delegates before Manafort came in, something that Manafort buddy Roger Stone was closely involved with in his initial Stop the Steal effort. It also makes Manafort’s second offer — to work for free — appear even more desperate (though he was financially desperate at the time).

Update: Added the follow-on language referencing Stone.

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“Project Rasputin:” The Michael Caputo Interview

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Yesterday, the government released another tranche of 302s in response to the BuzzFeed/CNN FOIA. There are actually a slew of interesting interviews.

One of those is Michael Caputo’s. Remember, in addition to having a background in and ongoing ties with Russia (which may have unfairly led to more scrutiny of him than others in the early days of the congressional investigations), he’s very close to Roger Stone. Shortly after Stone was indicted, the government put together a sealed list of witnesses with whom Stone could not have contact, and Caputo learned he was on it. After Stone’s guilty verdict, Caputo wrote Judge Amy Berman Jackson to request that she lift the gag so they could spend time over Christmas together.

Mr. Stone and I have been close friends since 1986. We work together, we dine together, our families share holidays together. I still do not fully understand why this order was entered — I was never a witness in his case and I had never testified before the grand jury — but I respected your order. Even as I attended his recent trial, we did not communicate. Mr. Stone has been especially obedient in this matter and I do not wish to disrupt his commitment to staying within the letter and spirit of your order.

But it’s Christmas, Judge, and our family wants to spend time with his. I also want his wife and children to know they can count on us to assist them through this difficult time, and that we’ll always be there to help them. I want them to know this now.

ABJ never responded to Caputo, and given that yesterday she invited prosecutors to complain about Stone’s violations of her gag in the weekend after his guilty verdict, I suspect she’s less convinced than Caputo is that Stone abided by her gag order.

MINUTE ORDER as to ROGER J. STONE, JR. The parties are directed to include in their sentencing memoranda any arguments they wish to make concerning the defendant’s compliance with the Court’s media communications orders 36 149 and conditions of release as modified on February 21, 2019 and July 16, 2019, including, in particular, his compliance during the trial, and on or about November 13-15, 2019. SO ORDERED.

Caputo’s interview is all the more interesting given that he gave among the most detailed descriptions of his testimony of any witness the day he testified back in 2018.

Caputo described that the Mueller investigators knew more about the Trump campaign than anyone who ever worked there.

After being interviewed by special counsel investigators on Wednesday, former aide to Donald Trump’s presidential campaign Michael Caputo told CNN that Robert Mueller’s team is “focused on Russia collusion.”

“It’s clear they are still really focused on Russia collusion,” Caputo said, adding, “They know more about the Trump campaign than anyone who ever worked there.”

[snip]

“The Senate and the House are net fishing,” Caputo said. “The special counsel is spearfishing. They know what they are aiming at and are deadly accurate.”

In other words, hours after Caputo finished testifying, he went to CNN to alert everyone, including (presumably) Stone that Mueller knew of things they were otherwise not telling.

The 302 describes that Caputo started the interview by noting that he had prepared a binder of notes and documents for the Senate Intelligence Committee interview he had the day before. Particularly given Caputo’s response after his testimony, that’s significant because multiple SSCI witnesses put together carefully massaged stories to tell less damning stories. Caputo obviously missed some things.

From the 302, it appears Caputo was asked (of Mueller’s prosecutors, just Aaron Zelinsky attended this interview) a general question from the start: what his official and unofficial role in the 2016 election was. He was hired by longtime Roger Stone friend Paul Manafort.

After Donald J. Trump (Trump) won the primary, Caputo was invited to join the Trump Campaign by Paul Manafort. A meeting was held at Trump Tower on 04/25/2016 to discuss the opportunity. After the meeting, Caputo served as a senior advisor to the Trump Campaign in charge of communications for the candidate in New York until his resignation on 06/20/2016.

Note that Manafort was not yet campaign manager when Caputo was hired, and his Convention Manager job at the time had little to do with the daily talking points that it sounds like Caputo spent his time doing. So his hiring is fairly curious. There are other 302s where references to what is probably Caputo — and his June resignation — are redacted.

After Caputo resigned, he worked for Tom Barrack, fundraising. It’s clear he emphasized he only raised money from American donors. Barrack’s 302 was also released yesterday; we know the government still has questions about whether that American donor claim is true.

Relatively early on, there is a 5-paragraph redacted discussion preceded by Caputo’s comment that,

Regarding the pursuit of Hillary Clinton’s missing 33,000 emails, Caputo thought it implausible to think that wasn’t happening.

The passage ends with Caputo saying he wasn’t involved in such activities and denying that he heard any discussion of WikiLeaks or Julian Assange.

Caputo said there was no coordination on his part on those types of activities. Additionally, Caputo did not recall hacking and/or Assange being a topic of conversation at the 2016 Republican National Convention. Caputo initially said Stone never mentioned WikiLeaks or Julian Assange, however, Caputo later modified this statement as documented below.

That was his second denial that he had made about WikiLeaks thus far into his interview. That comment is followed by four redacted paragraphs. There’s also a later 12-paragraph section that is entirely redacted, which immediately precedes questions about DC Leaks. Both those of those passages, plus the 5-paragraph redaction noted above, are redacted under B6, B7C, and B7A exemptions. The first two exemptions are for privacy, and are very common. But the B7A exemption reflects an ongoing investigation. This formula is particularly interesting given that up until now, everything Stone related has been redacted under B7ABC exemptions tied to ABJ’s gag.

In other words, just days before Stone and prosecutors will submit their sentencing memoranda, DOJ is still redacting things relating to Stone because of an ongoing investigation.

The balance of the 302 discusses Sergei Millian and Caputo’s ties to Russia and includes a redacted list of the people he told he had an interview with Mueller (also protected under b7A).

Finally, the interview includes Caputo’s explanation for the Henry Greenberg story, which WaPo first reported this way, based in part on Stone’s version of events

One day in late May 2016, Roger Stone — the political dark sorcerer and longtime confidant of Donald Trump — slipped into his Jaguar and headed out to meet a man with a “Make America Great Again” hat and a viscous Russian accent.

The man, who called himself Henry Greenberg, offered damaging information about Hillary Clinton, Trump’s presumptive Democratic opponent in the upcoming presidential election, according to Stone, who spoke about the previously unreported incident in interviews with The Washington Post. Greenberg, who did not reveal the information he claimed to possess, wanted Trump to pay $2 million for the political dirt, Stone said.

“You don’t understand Donald Trump,” Stone recalled saying before rejecting the offer at a restaurant in the Russian-expat magnet of Sunny Isles, Fla. “He doesn’t pay for anything.”

Later, Stone got a text message from Michael Caputo, a Trump campaign communications official who’d arranged the meeting after Greenberg had approached Caputo’s Russian-immigrant business partner.

“How crazy is the Russian?” Caputo wrote, according to a text message reviewed by The Post. Noting that Greenberg wanted “big” money, Stone replied, “waste of time.”

Two years later, the brief sit-down in Florida has resurfaced as part of special counsel Robert S. Mueller III’s sprawling investigation of Russian interference in the 2016 presidential campaign, according to Caputo. Caputo said he was asked about the meeting by prosecutors during a sometimes-heated questioning session last month.

Stone and Caputo, who did not previously disclose the meeting to congressional investigators, now say they believe they were the targets of a setup by U.S. law enforcement officials hostile to Trump.

As noted, the story deserves particular attention given that both Stone and Caputo failed to disclose this to the Intelligence Committees (though both sent revisions admitting to it after Caputo’s testimony, which distinguishes it from Stone’s lies about having a back channel to WikiLeaks).

When Zelinsky originally asked Caputo, generally, about any “connection to Russians and/or Russian nationals during the campaign” — the same question that had been asked by the Intelligence Committees — he claimed “this event occurred after his involvement with the campaign,” the same kind of story that George Papadopoulos told to separate a possible Russian dangle, temporally, from involvement in the campaign. But then he admitted it happened in May, before he resigned.

It’s clear Caputo offered a bunch of stories for why he believed this guy was Russian, which seems like an effort to minimize what he had learned before the event:

  • He assumed he was a Russian US citizen of Russian descent (meaning, not an immigrant)
  • He had an accent
  • His close friend [redacted] had made this assertion

Caputo revealed that he met Greenberg again on January 5, 2017 at a cancer research fundraiser he ran and claims Greenberg told him at that time he was a US citizen.

Caputo also dodged when asked why he referred this information to Stone.

Caputo didn’t recall why he sent Greenberg to Stone, but thought it was probably because [redacted] and was involved in opposition research for years. Caputo typically didn’t like relaying this type of opposition research material, and was not likely to give it to anyone at Trump Tower.

In other words, after unsuccessfully attempting to distance the event from the campaign temporally, he tried to do so ethically, suggesting he would never share this with the actual campaign, just with his rat-fucker buddy.

Perhaps the most interesting line in his description of Henry Greenberg, however, distinguished that Russian tie he tried to hide from something called “Project Rasputin.”

“Project Rasputin” was mutually exclusive from anything having to do with Greenberg.

That reference to a heretofore unidentified project immediately precedes yet another paragraph redacted because of an ongoing investigation. And there’s one more ongoing investigation paragraph before that passage ends with Caputo’s explanation about how Stone might be easily duped by Russians.

Caputo advised he lived in Russia for approximately seven years, thereby having more experience with Russian than Stone.

Michael Caputo doesn’t understand why ABJ still won’t let him talk to Stone. The redactions in his 302 appear to provide some hint.

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The Israeli Focus and Others’ Criminality at the Beginning of Mike Flynn’s “Cooperation”

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I’m working on a post showing how Mike Flynn and KT McFarland’s “cooperation” with prosecutors evolved. Since Flynn’s aborted December 2018 sentencing, it has been implicit that like Flynn, KT McFarland didn’t tell the truth about Flynn’s December 2016 conversations about sanctions with Sergey Kislyak at first. But once Flynn pled, she quickly realized she needed to straighten out her story, and did so weeks later. But between the release of some of her 302s and Sidney Powell’s release of Covington & Burling’s notes about discussions of Flynn’s early proffers, we have new detail on how that happened.

As I was working on that post, I realized something that seems very significant given the “peace” “plan” that Jared Kushner rolled out this week, partly in an attempt to save Bibi Netanyahu from legal consequences for his corruption.

After Flynn was fired, prosecutors mainly engaged with Flynn’s attorneys on his relationship with Turkey, which led to warnings to Flynn on August 30, 2017 that his former partner Bijan Kian might be indicted. While they were doing that, though, prosecutors secretly obtained Presidential Transition emails and devices (they obtained them from GSA on August 23 and probably got a warrant to access them on August 25) and they interviewed KT McFarland, Flynn’s deputy during the transition several times.

There’s one McFarland interview from August 29, 2017, which is 11 pages long, that the government hasn’t released. Her next interview was September 14, 2017. She had another on October 25, 2017. From the parts that are unredacted in these two interviews, you can see how she shaded the truth on the December 29, 2016 call with Sergei Kislyak. In the September one she denied remembering a security briefing at which sanctions came up and claimed not to remember a long call with Flynn that she has since admitted pertained to sanctions. She seems to have adopted the same excuse Flynn had used (and had had her repeat) all the way back in January: that the call with Kislyak was about setting up a video conference after inauguration. She describes an email that Flynn sent that both knew served as cover for his sanctions discussion (in that it didn’t mention it), and claimed not to be concerned that Flynn hadn’t mentioned sanctions.  In the October interview, she was shown emails that we now know to pertain to prep for that call, but which she claimed were general discussions about sanctions. She claimed to have no memory of specific discussions about sanctions she would later recall in December.

In the September interview, however, she discussed two other topics: Egypt (including a person with whom she was apparently warned against meeting after she joined the Administration) and Israel.

I’m interested in the extended questions (which led the interview) about Flynn’s efforts to get countries to vote against a UN resolution condemning Israeli settlements. Remember, failing to admit his call with Kislyak as part of this effort is one of Flynn’s charged lies.

There are two details of interest. First, McFarland does not mention Jared Kushner (though the better part of one paragraph is redacted). Indeed, she claimed, “she was not aware of any else helping him on this.”

Most stunning, however, she likens the effort to Nixon’s secret negotiations with South Vietnam and Reagan’s negotiations with Iran, both efforts still considered great scandals to the extent they’re acknowledged.

Based on her study of prior presidential transitions, McFarland believed the sorts of things Flynn did were not unusual. She cited Richard Nixon’s involvement in Vietnam War peace talks and Ronald Reagan’s purported dealings with Iran to free American hostages during an incoming administration. Most incoming administrations did similar things. No “red light” or “alarm bells” went off in her head when she heard what Flynn was doing. The President-elect mae his support for Israel very clear during the campaign and contrasted his position with President Obama, who he believed had not treated Israel fairly.

On November 1, Jared had his first substantive interview, the 302 for which is 5-pages long (there is an earlier 1-page 302 on October 24, which is likely organizational). CNN’s report on the meeting described it as an effort to ensure that Jared did not have exculpatory information on Flynn.

That same afternoon, Flynn’s lawyers had a meeting with Mueller’s team to talk about bringing Flynn in for a proffer. Mueller’s team described that Flynn was facing FARA, false statements on FARA, and false statements “regarding contacts with Russian officials” during the transition.

They had a follow-up on November 3, where Brandon Van Grack explained what they expected they might ask him in a proffer:

  • Communications your client had during transition with foreign officials, including Russian officials.
  • Whether anyone provided him directions on those communication. [sic]
  • Communications he is aware of that other members of the transition had with foreign officials.
  • Communications he had with foreign officials during his time in the WH.
  • Communications other people had with foreign officials.

When asked how that related to his potential charges, Zainab Ahmad explained:

We’re eventually going to want to talk about everything. That will include topics he has criminal exposure on. We aren’t interested in Turkey right now. We’re asking him to come in because we think he has information that will shed criminality on other actors. It will cover everything. [my emphasis]

By “criminality on other actors,” Ahmad may have signaled no more than that Mueller was trying to catch others — definitely including McFarland and possibly including Kushner — in lies. Certainly, once McFarland saw Flynn’s statement of the offense, she moved to straighten out her testimony, meaning the effort resulted in getting real answers about a key part of the investigation.

But we don’t know what happened with the Israeli part of the investigation. DOJ has refused to turn over any of Jared’s 302s (and seems to be insinuating we should not know if someone running great swaths of US policy from the White House is under criminal investigation). Plus, under cover of impeachment, Bill Barr just replaced the US Attorney overseeing most of the ongoing investigations into Trump’s flunkies with his loyal aide, meaning he may be moving to shut down whatever remains ongoing.

Back in November 2017, Mueller’s prosecutors wanted to know whether Flynn’s lies covered for himself or for others. And particularly with respect to Jared, we don’t know whether those lies prepared the groundwork for the sop to Israel rolled out last week.

Update: South Vietnam, not North, corrected. Thanks to David for pointing out my sloppiness.

Update: Here is Jared’s November 1, 2017 302.

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Steve Bannon’s Grand Jury Secrets

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In preparation for several other posts, I want to follow up on this post — Steve Bannon’s 302 of Laughter and Forgetting — and lay out what we know of Bannon’s other testimony to Mueller.

I said in that post there are four known Bannon interviews.

  • February 12, 2018 (26 pages)
  • February 14, 2018 (37 pages)
  • October 26, 2018 (16 pages; the interview list lists three different interviews, but they are likely just copies of the same one)
  • January 18, 2019 (4 pages)

But that’s not right. Bannon was asked by Stone lawyer Robert Buschel in cross-examination at the Roger Stone trial whether he had “sat down with” prosecutors recently.

Q. You just gave an interview in preparation for your testimony today, right, with the government, with the Department of Justice?

A. What do you mean, an interview?

Q. Did you sit down with them recently?

A. Yes.

So one of the six 302s that post-date the end of the Mueller investigation must be from Bannon (at least two are presumably Randy Credico, there were two other non-governmental witnesses who testified, Rick Gates and Margaret Kunstler, and Andrew Miller was flown into DC to testify but did not ultimately do so).

The government got Amy Berman Jackson to approve the partial redaction of the grand jury transcript of one witness on August 26, 2019. That may well be Bannon (in which case his interview must have been on July 26, 2019), because as I’ll explain, prosecutors had to use his grand jury testimony to get him to adhere to his previously sworn testimony.

Before I get there, consider that the government is still withholding Bannon’s first interview report, from February 12, 2018 (I suspect, based on the unredacted content of the February 14, 2018 one, that that first one focuses on Trump’s obstruction). As I laid out in my “Laughter and Forgetting” post, Bannon clearly shaded the truth significantly in his February 14 one.

On October 26, 2018, we know Bannon admitted to details about the WikiLeaks dump that he hadn’t before, most notably an October 4, 2016 email from his non-campaign “arc-ent” email (which he described in his February 14 testimony) asking Stone why Assange hadn’t released emails as promised that day, because in the week after his testimony he and Stone floated competing half-truths and lies on the pages of the WaPo, NYT, and DailyCaller.

But Bannon likely still didn’t tell the full truth on October 26, because on his next known interview, January 18, 2019 (so just days before Stone’s arrest), he signed a proffer with Mueller covering that day’s interview and an appearance the same day before the grand jury. The government has released the proffer but not the actual interview. That means that, apparently for the first time in hours and hours of testimony, Bannon’s competent lawyers either expressed concern about his legal exposure or that he had lied in a past interview and Mueller was using that to finally get the truth out of him.

There were two topics in Bannon’s testimony that prosecutor Michael Marando used to get Bannon to adhere to the sworn testimony he was willing to give in a secret grand jury. First (though it came second in his testimony), that he regarded Stone as the campaign’s access point to WikiLeaks.

Q. While you were CEO of the Trump campaign, who, if anyone, was the campaign’s access point to WikiLeaks?

A. The campaign’s access point?

Q. Yes.

A. I don’t think we had one.

Q. I want to refer back to Government’s Exhibit 209 that’s in front of you. This is the same grand jury transcript that I showed you before, correct? Am I correct?

A. Yes.

Q. Okay, this is your testimony in the grand jury. This was the Robert Mueller grand jury, correct?

A. Yes.

Q. Now, I want you to turn to page 14, line 4. I’m going to read line 4 through 8 on page 14. And you’re asked, “And just within the campaign, who was the access point to WikiLeaks?”

And you responded, “I think it was generally believed that the access point or potential access point to WikiLeaks and to Julian Assange would be Roger Stone.”

Did I read that correctly?

A. That’s correct.

Q. And did you, at that time, did you personally believe or you personally view Roger Stone as the access point between Trump campaign and WikiLeaks?

A. Yes.

This what the testimony where Buschel described Bannon reversing his prior testimony in his more recent interview.

Q. And did they ask you that precise question, whether you thought Roger Stone was an access point to WikiLeaks?

A. I think they asked me the exact question they just asked me a few minutes ago.

Q. And you gave a different answer than you just gave right now, didn’t you? You said that Roger Stone — you and the Trump campaign did not view Mr. Stone as an access point between the Trump campaign and WikiLeaks.

A. The campaign had no — had no official access to WikiLeaks or to Julian Assange, but Roger would be considered, if we needed an access point, an access point because he had implied or told me that he had a relationship with WikiLeaks and Julian Assange.

In addition, Bannon had to be forced to adhere to his grand jury testimony describing that Stone had boasted of his relationship with Julian Assange going back months before Bannon joined the campaign on August 14, 2016.

Q. Does that date sound like the time that — I’m sorry. January 18th, 2019. My apologies. Did you testify on January 18th, 2019?

A. I have no idea.

Q. Does that sound correct?

A. Yes.

Q. Now, there were prosecutors that were present there, correct?

A. They were, yes.

Q. Andrew Goldstein, does that sound correct?

A. Yes.

Q. And you were the witness that was there, correct?

A. Yes.

Q. There was a court reporter that was taking down everything you said, correct?

A. That’s correct.

Q. And there were grand jurors there; isn’t that right?

A. That’s correct.

Q. You took an oath — the defendant, Mr. Stone, was not there; is that right?

A. That’s correct.

Q. You took an oath to tell the truth; isn’t that right?

A. That’s correct.

Q. And the prosecutor asked you a number of questions; isn’t that right?

A. That’s correct.

Q. But before he asked you any questions, he advised you of your rights as a witness; is that correct?

A. That’s correct.

Q. All right. And he told you that if you failed to tell the truth before the grand jury, you could be charged with perjury; isn’t that right?

A. That’s correct.

Q. And you told the grand jury that you understood that right; isn’t that correct?

A. That’s correct.

Q. I want to turn to page 7, if you can. Let me know when you’re on page 7.

A. I’m at page 7.

Q. Line 15?

A. Yes.

Q. So you were asked at page 7, line 15, “And when you had private conversations with him about his connection to Julian Assange, approximately how far in advance of your joining the campaign did that conversation take place?”

And you responded, “Oh, I think the first time it was months before, but I think it all the way led up to right before I joined the campaign. It was something he would, I think, frequently mention or talk about when we talked about other things.”

Did I read that correctly?

A. That’s correct.

Q. All right. Now, in any of your conversations with Mr. Stone, did he ever brag to you about his connections to Assange?

A. I wouldn’t call it bragging, but maybe boasting, I guess the difference between bragging and boasting, but he would mention it.

Q. What do you mean by “boast”?

A. That he had a relationship with WikiLeaks and Julian Assange.

As noted, one witness — and Bannon is the only witness who had to be steered using a grand jury transcript — had selected bits of his grand jury released to Stone (though Amy Berman Jackson ultimately did not let prosecutors send the transcript to the grand jury).

That suggests there are other parts of that grand jury transcript in which he admitted to things he has otherwise tried to shade.

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