The Trump Men and the Grand Jury Redactions

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Much of the discussion over the Mueller Report in the last day has centered on two questions: Why didn’t Mueller force both Donald Trumps to testify?

That discussion, however, has largely not taken notice of two redactions of grand jury materials. The first comes on page 117, at the beginning of the discussion of the June 9 meeting. After saying that the office had spoken with every participant of the meeting save Natalia Veselnitskaya and Don Jr, it explains that the President’s son would not testify voluntarily, which is followed by a grand jury redaction.

Update: Here’s a second instance where discussion of Jr’s testimony is redacted for grand jury reasons.

One likely explanation for these redactions is that they explain the Special Counsel’s consideration of subpoenaing the failson to appear before the grand jury. They might say, for example, that the grand jury did subpoena him, but that he invoked the Fifth. They might say they considered it but decided not to upon being told that he would invoke the Fifth.

The report does say (page 5 of Volume I) that some people invoked the Fifth but weren’t given immunity.

Some individuals invoked their Fifth Amendment right against compelled self-incrimination and were not, in the Office’s judgment, appropriate candidates for grants of immunity.

There’s one other possible explanation for the redaction: It might say they decided against subpoenaing him since he was a target of the investigation (and given the very narrow statements about findings of criminal conspiracy, it’s possible his later conduct is still under investigation).

The second redaction comes on page 13 of the obstruction volume, in the discussion of attempts to get the President to provide testimony. After stating that the Special Counsel tried to get Trump to sit for a voluntary interview, only to have Trump stall for more than a year, there’s a redacted sentence or two.

The discussion explaining that the office had the authority and legal justification to call the President is not redacted. That suggests the redacted line must pertain to something actually involving the grand jury itself — perhaps a characterization of the discussion with the grand jurors about the issue or maybe even something noting that the grand jurors did want to subpoena the President.

Update: Here’s a second instance of a redacted grand jury discussion.

In other words, for both the Trump men, there remains an open question about how they dodged testifying about their actions. These two redactions are two of the things Bill Barr is protecting by refusing to ask Chief Judge Beryl Howell to approve sharing of grand jury material with the House Judiciary Committee, as is constitutionally proper. Given how little grand jury material we’re actually discussing, it is all the more problematic that Barr is hiding these two passages even while claiming — as he did yesterday — that the President fully cooperated with the investigation.

We don’t know why Mueller didn’t call Don Jr to testify, and we don’t know whether the grand jury wanted to force the President to testify.

Those are two questions, however, that House Judiciary Committee is in a constitutionally proper position to demand to know.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Mueller’s Language about “Collusion,” Coordination, and Conspiracy

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The answer to a key question — what did the rest of the sentence William Barr censored when declaring Trump’s innocence by quoting a sentence in the Mueller report that says, “the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities” — is, in one instance, this:

Although the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the Campaign expected it would benefit electorally from information stolen and released through Russian efforts,

The Attorney General was censoring Mueller’s judgment that Russia was trying to get Trump elected, and the campaign recognized that Russia’s help would benefit the campaign.

There’s another key passage of the report that addresses this language in particular. It says two things. First, when Mueller says the investigation “did not establish particular facts does not mean there was no evidence of those facts.”

The report describes actions and events that the Special Counsel’s Office found to be supported by the evidence collected in our investigation. In some instances, the report points out the absence of evidence or conflicts in the evidence about a particular fact or event. In other instances, when substantial, credible evidence enabled the Office to reach a conclusion with confidence, the report states that the investigation established that certain actions or events occurred. A statement that the investigation did not establish particular facts does not mean there was no evidence of those facts.

In other words, while the report says the investigation did not establish certain things, it means there was evidence of it, but did not establish it to reach a conclusion with confidence.

Immediately after that passage, the report makes it clear it is not addressing collusion because — as I’ve pointed out over and over — it is not a crime.

In evaluating whether evidence about collective action of multiple individuals constituted a crime, we applied the framework of conspiracy law, not the concept of “collusion.” In so doing, the Office recognized that the word “collud[e]” was used in communications with the Acting Attorney General confirming certain aspects of the investigation’s scope and that the term has frequently been invoked in public reporting about the investigation. But collusion is not a specific offense or theory of liability found in the United States Code, nor is it a term of art in federal criminal law. For those reasons, the Office’s focus in analyzing questions of joint criminal liability was on conspiracy as defined in federal law. In connection with that analysis, we addressed the factual question whether members of the Trump Campaign “coordinat[ed]”-a term that appears in the appointment order-with Russian election interference activities. Like collusion, “coordination” does not have a settled definition in federal criminal law. We understood coordination to require an agreement-tacit or express- between the Trump Campaign and the Russian government on election interference. That requires more than the two parties taking actions that were informed by or responsive to the other’s actions or interests. We applied the term coordination in that sense when stating in the report that the investigation did not establish that the Trump Campaign coordinated with the Russian government in its election interference activities.

Then, in defining how it uses “coordination,” it says that coordination requires more than “two parties taking actions that were informed by or responsive to the other’s actions or interests,” which might be one definition of collusion and of which the report provides plenty of evidence.

So for all the people claiming this report says Trump didn’t collude with Russia–it says anything but.

The Debate We May Be Having Tomorrow: If Trump Obstructed Justice to Hide Compromise by Russia, Could that Be a Crime?

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In my How to Read the Mueller Report post, I said that if Bill Barr’s memo (which claims the report is broken into just two sections, one on the trolls and hack-and-leak activities, and one on the obstruction question) is to be believed, the report won’t provide much detail about the second half of Mueller’s mandate: to figure out the nature of links between Trump’s flunkies and various Russians.

But we have good reason to believe Barr’s memo is not reliable.

Plus, there’s this passage that came out during the pushback from Mueller’s team.

According to a senior law enforcement official who has spoken to members of Mueller’s team, Mueller team members say it includes detailed accounts of Trump campaign contacts with Russia. While Mueller found no coordination or criminal conspiracy, the official said, some on the special counsel’s team say his findings paint a picture of a campaign whose members were manipulated by a sophisticated Russian intelligence operation. Some of that information may be classified, the official said, so it’s not clear whether it will be released in a few weeks when Barr makes public a redacted version of the Mueller report.

At the time Mueller’s prosecutors were leaking to correct Barr’s misleading portrayal of their report, a story said that the report actually shows that Trump’s team was susceptible to the manipulation of people working for Russia.

That is, it may not so much be that Mueller’s team found Trump and his flunkies’ conduct criminal. Rather, maybe they found their conduct naive — susceptible to compromise by Russia.

Their venality likely contributed to their vulnerability as well.

Such a conclusion is what I was pointing to when I suggested one question the report will answer is, “Did Mueller decide Don Jr is simply too stupid to enter into a conspiracy?” The evidence already in the public record, after all, shows that Don Jr took a meeting offering dirt at a time when he believed that cozying up to Russia could help the family business land a ridiculously lucrative $300 million real estate deal. At the end of the meeting, he told Russians who might be deemed agents of the government that the Trumps would revisit sanctions relief if his dad got elected. And contrary to the Trump camp’s public claims, there not only was follow-up after Trump won, but Trump himself did make moves towards giving Russia that sanctions relief.

That exchange could fit all the elements of a conspiracy charge: an agreement to trade dirt and real estate for sanctions relief and overt acts to further the conspiracy. Unless you figured the key player at the center of the agreement to enter into a conspiracy, Don Jr, is too stupid to know what he’s doing.

The leaked conclusion that Trump’s flunkies were manipulated by a sophisticated intelligence operation sure seems to support the “too stupid to enter into a conspiracy” conclusion.

All that said, the only way that such analysis would be consistent with both the regulatory mandate of the report (limiting the report to a discussion of prosecutions and declinations) and Barr’s description of it (saying it was split into the hack-and-leak and trolling section, and the obstruction section) would be if that analysis appeared in the obstruction section. (Frankly, I suspect Barr’s memo is wrong on this point, as Mueller would need to explain that Don Jr is too stupid to enter into a conspiracy, if that’s why he decided not to charge him in one).

That is, it may be that what Trump was obstructing was not criminal conduct, a knowingly engaged conspiracy, but stupid conduct, his failson saying all the words that amount to entering into a conspiracy, without realizing he was entering into one.

The reason Trump may have fired Mike Flynn and Jim Comey and pushed Michael Cohen to lie to Congress may be to hide that he got badly used by Putin’s envoys who appealed to Trump’s narcissism and greed to get him (in the form of his especially stupid son) to agree to sanctions relief.

Such a conclusion would be consistent with the reason Barr exonerated Trump, in usurping Congress’ authority to make that judgment: Trump and his failson didn’t so much knowingly commit a crime — they didn’t mean to enter into a conspiracy with the Russians, it just happened because they’re too weak to resist. Under such analysis, because Trump didn’t commit a crime, he had no crime to obstruct, and therefore did not obstruct.

Again, this is all hypothesis based on the known outlines of the report, at least as presented by an Attorney General who can’t be trusted.

Given that it’s a possibility, however, I want to prepare for the possibility that tomorrow we’ll be debating whether a President can obstruct justice to prevent voters from learning how badly he and his dumb son compromised themselves in an foreign intelligence operation in the course of running a presidential election to get rich.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Manafort’s Federal Life Sentence Might Just Get Longer

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Among the claims the Barr memo made, it said that “the Special Counsel also referred several matters to other offices for further action” (emphasis mine). Several normally means two or maybe three.

My “How to Read the Mueller Report” post already demonstrated that Mueller actually referred far more than that — maybe in the neighborhood of ten referrals, not listed individually. Meanwhile, the Stone filing Friday suggested he had “been charged only with a subset of his conduct under investigation.

That’s to be expected, though, given that Mueller has long said Stone might face new charges in conjunction with Andrew Miller’s testimony.

What’s more surprising is some of the language from a government motion objecting to the WaPo’s request to unseal the Paul Manafort breach determination filings.

The phrase “ongoing investigations” appears 10 times in the filing, just 3 of which are to precedent. Of particular interest are these two passages, which suggest “ongoing investigations,” plural, being conducted by “various attorneys in various offices.” It even uses the term “many” to refer to them.

The redactions at issue were undertaken and approved recently—from December 2018, through March 2019. No material changes have occurred in these past months. Although the Special Counsel has concluded his work, he has also referred a number of matters to other offices. The ongoing investigations that required redactions—many of which were already being conducted by other offices—remain ongoing. And the privacy interests that warranted redactions remain the same.

[snip]

The Manafort case has been transferred from the Special Counsel’s Office to the U.S. Attorney’s Office, and the attorneys who were principally responsible for that case are no longer representing the government in this matter. The redactions are intended to protect ongoing investigations that are being handled by various attorneys in various offices. It is unknown how long some of these investigations may remain ongoing. And some of the privacy interests that are being protected may persist indefinitely. For the government to “promptly notify” (Mem. 18) the Court of any relevant development would impose a duty not just on the attorneys who have taken over responsibility for the Manafort case, but also on other attorneys throughout this and other offices and their successors. Given the breadth of the related investigations, it would be extremely burdensome, if not impossible, for the government to ensure such prompt reporting and to undertake regular reassessment in this case.

The filing suggests it might be appropriate to revisit these issues in six months — on October 15, 2019.

To be sure, there was one distinct investigation among the five topics covered in the breach determination. I compiled what we knew about it here. It pertained to some plan to save Trump as a candidate just before Manafort left in August 2016. Before getting the plea, Manafort had admitted one person was incriminated, but after he pled, he tried to blame someone else who had said he, “did not want to be involved in this at all.”

But that’s just one investigation. Not many. The other topics covered in Manafort’s breach — aside from his own — pertained to:

  • The kickback system by which he got paid
  • Konstantin Kilimnik, generally
  • The sharing of polling data and ongoing discussions about a Ukraine peace deal (AKA sanctions relief)
  • Manafort’s ongoing communications with the Trump Administration

Of those, the polling data discussion was the most redacted. And there’s no imaginable content in that material that would need redacted for privacy reasons.

Here I had thought all that material would show up unredacted in Thursday’s public release of the Mueller Report. But it sounds like the investigations formerly known as the Mueller probe may go on for another six months.

How to Read the Mueller Report

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Politico has a piece describing how key players will read the Mueller report that starts by admitting the usual workaround — reading the index — won’t work.

The capital has already evolved one model for processing a big tell-all book: “the Washington read,” where you scan the index (assuming there is one) to find everything it says about you, your boss and your enemies and then fake like you’ve read the rest. But this time that won’t be enough. The goods might not come easily. They might be buried in an obscure subsection. And there’s way more at stake than in the typical gossipy memoir.

Further down, David Litt graciously included me on a list of legal and analytical voices he’ll turn to to help understand the report.

Former Obama White House speechwriter David Litt will have Twitter open while he’s making his way through the report, watching in particular for posts from several of the more prominent legal and analytical voices who have narrated the story’s plot twists as it evolved: Ken White (@popehat), Mimi Rocah (@Mimirocah1), Renato Mariotti (@Renato_Mariotti), Marcy Wheeler (@emptywheel), Neal Katyal (@neal_katyal) “for the definitive word on special-counsel regs” and Nate Silver and FiveThirtyEight “to think through the political implications.”

Since most of the methods described by Politico’s sources actually will be counterproductive for anything but rushing a self-serving message to the press, I thought I’d lay out some tips for how I’ll read it.

Understand what the report is and is not

Even before Barr releases the report, those planning on reading it would do well to reflect on what it is — and what it is not. It is, by regulation, a report on the prosecutions and declinations the Mueller team took during their tenure.

It is not supposed to be, contrary to many claims, a report on everything that Mueller discovered. Already there have been hints that it will not include the second half of Rod Rosenstein’s mandate to Mueller — to figure out the nature of links between Trump’s team and Russia. If that stuff is excluded, then it probably will get reported, secretly, to the Intelligence Committees and no further. That’s important because the stuff that would compromise Trump — but would not necessarily implicate him in a crime — may by definition not show up in this report (though the stuff specifically relating to Trump may show up in the obstruction case).

Finally, it’s unclear how much Mueller will include about referrals and ongoing investigations. I expect he’ll include descriptions of the things he and Rosenstein decided deserved further prosecutorial scrutiny but did not fit under the narrow rubric of whether Trump’s team coordinated or conspired with the Russian government on the hack-and-leak. But with the sole exception of three known referrals: the hush payments negotiated by Michael Cohen, the prosecution of Mike Flynn partner Bijan Kian, and the prosecution of Sam Patten, I expect any discussion of these matters to be redacted — appropriately so.

Map out what we already know about prosecutorial decisions

Since the report is by regulation supposed to describe the prosecutorial and declination decisions, we already know much of what will show up in the report, because Mueller has helpfully showed his prosecutorial decisions right here on his webpage. Here are some questions we should expect the report to answer (working from the bottom):

Papadopoulos

  • Why did Mueller consider George Papadopoulos’ lies to the FBI material to the investigation? [Note, Mueller has already answered this in Papadopoulos’ sentencing memo.]
  • Did Mueller find any evidence that Papadopoulos had passed on news that Russia was planning to dump emails pertaining to Hillary in an effort to help Trump? What did those people do with that information?
  • What did the investigation of Sergei Millian, who started pitching a Trump Tower deal and other seeming intelligence dangles to Papadopoulos in July 2016 reveal? [This is a subject that may either be redacted, referred, or treated as counterintelligence saved for the Intelligence Committees.]

Mike Flynn

  • Why were Flynn’s lies about assuring Sergey Kislyak that Trump would revisit sanctions deemed material to the investigation? [Note, Mueller has already answered this in Flynn’s sentencing memo, but it is significantly redacted]
  • Why did Mueller give Flynn such a sweet plea deal, as compared to his partner Bijan Kian, who was named a foreign agent? What information did he trade to get it? [Some of this is included in his sentencing memo — because he flipped early, it led others to correct their lies — but key parts of it remain redacted.]
  • What other Trump aides (like KT McFarland) lied about the same topics, and why were their attempts to clean that up before being charged deemed sufficient to avoid prosecution?

There’s likely a great deal pertaining to Flynn — likely including the third topic on which he cooperated — that will be deemed counterintelligence information that will be briefed to the Intelligence Committees.

Richard Pinedo

  • Why did Mueller prosecute Pinedo as part of his investigation?
  • How did Mueller determine that Pinedo had not wittingly worked with Yevgeniy Prigozhin’s trolls?

There’s likely some counterintelligence information about how the trolls duped Pinedo and how the US might shore up that vulnerability, but given the focus on the trolls, I expect FBI has already briefed that to the Intelligence Committees in substantial part.

The Internet Research Agency

  • Given that Russia’s activities weren’t under the original scope of Mueller’s investigation; why did the trolls get moved under him? [The answer may be because of the Trump people found to have interacted with the trolls.]
  • Why did Mueller consider prosecuting Concord Management worth the headache?
  • How much of the relationship between Yevgeniy Prigozhin and Putin impacted this prosecution?
  • What did the three Trump campaign officials in Florida described in the indictment do after being contacted by the trolls about events in August 2016? Did any other people in the campaign join in the efforts to coordinate with the trolls? Why weren’t they prosecuted? [Whether the names of these three people are unredacted will be one of the more interesting redaction questions.]
  • Why weren’t the Trump and other political activists prosecuted?

We already know the answer to why Americans (save Richard Pinedo) were not prosecuted in this indictment: because they did not realize they were coordinating with Russian-operated trolls, and because, unlike Pinedo, nothing about their activities was by itself illegal.

There’s likely to be a lot of counterintelligence information on this effort that has been shared with the Intelligence Committees in ongoing fashion.

Alex van der Zwaan

  • Why did Mueller prosecute van der Zwaan himself, rather than referring it (as he did with Greg Craig and the other Manafort-related corruption)? Did that have to do with van der Zwaan’s independent ties with either Konstantin Kilimnik or his father in law, German Khan?

Rick Gates and Paul Manafort

  • Why did Mueller keep both Gates and Manafort prosecutions (the tax fraud prosecuted in EDVA and the FARA and money laundering violations in DC) himself? Was this just an effort to flip both of them, or did it pertain to an effort to understand the nature of their relationship with Kilimnik and a bunch of Ukrainian and Russian oligarchs?
  • What continuity is there between the methods and relationships involved in Manafort’s work in Ukraine with that he did for Trump?
  • What did Mueller get out of the cooperation agreements with Gates? This will be extensive! But a lot of it may be redacted because it pertains to counterintelligence or ongoing investigations.
  • What did Mueller get out of the failed cooperation agreement with Manafort? Part of this, too, is counterintelligence, plus Manafort appears to have made it through one grand jury appearance on November 2 without lying. But that topic may be redacted as either as part of either counterintelligence or ongoing investigations.

Konstantin Kilimnik

Because he charged Kilimnik and Kilimnik was so central to so much of his investigation, Mueller could describe why the government believes Kilimnik has a tie with the GRU. He likely won’t.

GRU hack indictment

  • Russia’s activities weren’t under the original scope of Mueller’s investigation; why did the GRU hack get moved under him? [The answer may be because Roger Stone and Lee Stranahan and Trump — in his encouragement — were implicated.]
  • Why weren’t WikiLeaks and/or Assange charged in the indictment?
  • What was the nature of Stone’s ties to Guccifer 2.0?
  • Was there reason to believe Trump knew GRU would respond to his encouragement?
  • How did the GRU operation link up with the activities of other people suspected to have ties to GRU, like the broker on the Trump Tower deal, Kilimnik, and a Mike Flynn interlocutor?
  • How did Mueller assess whether and how Russia used the data stolen from the Democrats, especially the analytics data stolen in September?
  • Did the data Kilimnik received from Manafort and shared with others make its way into GRU’s hands?

Michael Cohen

  • Why were Cohen’s lies about the Trump Tower deal deemed material to the investigation? [Unlike with Flynn and Papadopoulos, Mueller didn’t really explain this in the sentencing memo.]
  • Why was Cohen charged with lying, but not those he conspired to lie with, including Jay Sekulow, Don Jr,  and the President?
  • What other details of Trump’s business dealings did Cohen share?

Roger Stone

  • Why were Roger Stone’s lies to Congress deemed material to the Mueller investigation?
  • From whom did Stone and Jerome Corsi learn what GRU and WikiLeaks were planning to release?
  • Did Stone succeed in holding the release of the Podesta emails to dampen the Access Hollywood video release, as Corsi alleges?
  • What was Stone trying to hide when he had Corsi write a cover story for him on August 30, 2016?
  • Why didn’t Stone’s coordination to optimize WikiLeaks’ releases amount to coordination with Russia?
  • Why weren’t Corsi and Randy Credico (the latter of whom Stone accuses of lying to the grand jury) charged?
  • Why wasn’t Assange charged in conjunction with Stone?

Stone is still awaiting trial and prosecutors have just told the press that Stone remains under active investigation. So I expect virtually all the Stone section to be redacted.

Map out the big questions about declinations

Mueller will also need to explain why he didn’t charge people he investigated closely. This is another section where the fight over redactions is likely to be really heated.

Trump on obstruction and conspiracy

  • Did Mueller consider Trump’s enthusiastic encouragement of Russia’s operation and his move to offer Russia sanctions relief from a prosecutorial standpoint (that is, a quid pro quo trading the Trump Tower deal and election assistance for sanctions relief)? If so, what were the considerations about potential criminality of it, including considerations of presidential power? If not, was any part of this referred?
  • What was the consideration on Trump and obstruction? Did Mueller intend to leave this decision to Congress? [The report will not answer the second question; if Mueller did intend to leave the decision to Congress, as his predecessors Leon Jaworski and Ken Starr did for good Constitutional reasons, he will not have said so in the report.]

Paul Manafort on quid pro quo

  • Was Mueller able to determine why Manafort shared polling data with Konstantin Kilimnik on August 2, 2016? Did he know it would be shared with Russians close to the election interference operation? Did he agree to a quid pro quo involving the Ukrainian peace deal as sanctions relief he pursued for another 20 months? Did Manafort’s lies prevent Mueller from answering these questions?
  • What was the nature of and what was ultimately done with that polling data?
  • Why didn’t Mueller charge this as conspiracy or coordination? Did it have to do with Manafort’s lies and Gates’ limited credibility?

The June 9 meeting and follow-up

  • What consideration did prosecutors give to charging this as an instance of conspiracy or coordination?
  • What consideration did prosecutors give to charging the public claims about this meeting as an instance of false statements?
  • Did Trump know about this meeting and if so did that change the calculus (because of presidential equities) on a quid pro quo?
  • Did Mueller decide Don Jr is simply too stupid to enter into a conspiracy?
  • Did Mueller consider (and is DOJ still pursuing) prosecutions of some of the members of the Russian side of this meeting? [Note that Barr did not clear all US persons of conspiracy on the hack-and-leak; Emin Agalarov canceled his concert tour this year because his lawyer said he’d be detained, SDNY’s indictment of Natalia Veselnitskaya treats her as a Russian agent, and Rinat Akhmetshin and Ike Kaveladze may both have exposure that the Trump flunkies would not.]

The Seychelles meeting and related graft

  • Did Mueller decide the graft he uncovered was not criminal, not prosecutable, or did he refer it?

Carter Page

I, frankly, am not that interested in why Mueller didn’t prosecute Carter Page, and this section might be redacted for his privacy. But I am interested in whether leaks played a part of it, or whether Russians used him as a decoy to distract from where the really interesting conversations were happening.

Understand referrals and ongoing investigations, to the extent they’re included

As noted above, Mueller may have included a description of the referrals he made and the ongoing investigations that reside with some of his prosecutors and/or the DC AUSAs brought in to pick up his work. This includes, at a minimum:

  • Inauguration graft
  • Potential Don Jr and Jared Kushner graft
  • Mystery Appellant
  • Ongoing Stone investigations
  • The Cohen hush payments
  • Bijan Kian’s prosecution
  • Sam Patten’s prosecution
  • Other Manafort graft, including potential coordination with states
  • Tom Barrack’s graft
  • Greg Craig, Tony Podesta, Vin Weber, Steve Calk
  • Konstantin Kilimnik (which is likely a counterintelligence investigation, not a criminal one)

One big question I have is whether any criminal conduct with Russia that doesn’t involve the election would be covered by this report, referred, or considered an ongoing investigation??

While we should expect details of the decision to refer the Cohen, Bijan Kian, and Sam Patten prosecutions, most of the rest of this would likely be redacted (including the Craig prosecution, since it only just got indicted).

Understand the structure of the report

Having prepped yourself for what to expect in the report (and what won’t be there, like the counterintelligence stuff), you can now start by reviewing the structure of the report. Bill Barr claims the report is split into two sections, the Russian interference and Mueller’s thinking on obstruction. That may or may not be true — it’s one thing to assess when first reviewing the report.

One particularly interesting question will be the extent to which Mueller included stuff that might otherwise be counterintelligence information — things Russia did that would compromise or embarrass Trump — in the obstruction section.

Another thing to do while understanding the structure of the report is to see where all the things that must be in there appear. This will be particularly helpful, for example, in figuring out where what is sure to be a lot of redacted content on Roger Stone appears.

Do a first read of the report, paying particular attention to the footnotes

I find it really useful to share screen caps of what I’m finding in a first read, either on Twitter (for crowd sourcing) or in a working thread. The press flacks will do the work of finding the key takeaways and running to the cable news about them. Better to spend the time finding the details that add nuance to claimed takeaways, if only because adding nuance to claimed takeaways quickly helps avoid an erroneous conventional wisdom from forming.

Develop theories for redacted content

You’re not going to be able to prove what lies behind a redaction unless Mueller and DOJ commit redaction fail (they’re not Paul Manafort trying to signal to co-conspirators, so that won’t happen) or unless they accidentally leave one reference out. But based on the grammar of sentences and the structure of the report and — hopefully — Barr’s promised color coding of redactions, you should be able to develop theories about what generally is behind a redaction.

Identify big redacted sections

There may be sections that are both entirely redacted about which no clues as to the content exist. At the very least, identify these, and at least note where, structurally, they appear, as that may help to explain what big questions about the Mueller report are outstanding.

Read it again

I know most editors in DC won’t pay for this, which is why reporting on documents is often less rigorous than journalism involving talking to people. But for documents like this, you really need to read iteratively, in part because you won’t fully understand what you’re looking at until reading the whole thing a first time. So after you read it the first time, read it again.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

The Many Sided Stone: The Investigation Is Not Over

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While we have been talking about how good and done Robert Meuller’s investigation is, a slew of filings and other reports relating to Roger Stone in the last few days remind us that the fruits of his investigation are definitely not done.

Roger Stone’s cry for help

As background, consider this cry for help, in a local, as opposed to the kind of national media outlets that had recently hung on Roger’s every word. In it, he describes the burden of spending all his money on defense attorneys.

“The worst part of this is being broke,” he said on the SiriusXM program that airs weekdays on the Faction Talk channel 103.

“I’ve lost my home, my insurance, what little savings I had, my ability to make a living because people pay me to write and talk, and of course the things they want me to write and talk about are the very things I’m not allowed to talk and write about. In the blink of an eye you can lose everything.

“I have to pay everything I have to lawyers. And I could no longer pay the rent in the property that I was in. I moved from a nine-bedroom house to a one-bedroom apartment. Had to do the move myself with my wife renting a truck. On the last day of the move in kind of a freak accident the truck slips out of gear and rolls over my wife’s ankle, breaking it.”

More interestingly, Stone claims he hasn’t spoken with Donald Trump for almost two years (he doesn’t say whether his attorneys have spoken to Trump’s attorneys).

“I’ve known him for 40 years. We’re very good friends. I don’t agree with everything he does, I agree with a lot of what he does,” Stone said. Stone said Trump was at his wedding, and he at two of Trump’s weddings; he was at the funerals for Trump’s parents, and is friendly with his sister. “I do miss him.”

He also complains that Alex Jones is not selling T-shirts for him.

“I am grateful for Alex Jones for giving me a platform. He is a friend of mine. I like the guy, I like hanging out with him. I do not agree with everything he says, I agree with some of the things he says. He probably doesn’t agree with everything I say. But you know, the check would be nice.”

While I’m sure Stone exaggerates his financial straits, I’m also sure they’re considerable. These two specific calls for help, though (especially in the wake of allegations that InfoWars may have been providing hush money to Jerome Corsi), are especially interesting.

Stone’s throw of the dice

Meanwhile, the lawyers that are bankrupting Stone have been busy, filing six challenges to his indictment last night, several of them meritorious, the others not. The motions include:

  1. A bid to throw out the prosecution on several grounds designed to appeal to William Barr’s prejudices
  2. A demand for the full Mueller report based on some specious (appeals to Bill Barr) and some justified bases (prosecutorial decisions on Jerome Corsi and Randy Credico)
  3. A motion to enjoin his prosecution based on a claim that Congress hadn’t funded this Special Counsel investigation
  4. A motion to dismiss based on the claim that Mueller violated separation of powers by charging him for lying to HPSCI without a formal referral
  5. A request for discovery to support a selective prosecution claimed designed, in large part, to accuse Randy Credico of lying to the grand jury
  6. A renewed objection to having his case judged by Amy Berman Jackson along with the GRU hackers

He seems to be pursuing several strategies (beyond just throwing a bunch of spaghetti against the wall).

Embarrass Credico

The first is to use the motions process to discredit the witnesses against him. That’s most true of a passage of his selective prosecution motion that accuses Credico of lying to the grand jury.

Another witness, Randy Credico lied about speaking to Assange and Assange’s lawyer to federal agents. It is curious that the Special Counsel found one aspect of Credico’s interactions with Stone so compelling that it made its way into Stone’s Indictment. In Paragraph 14(e) of the Indictment, the Special Counsel quotes the conversation between Stone and Credico from Credico’s radio show of August 23, 2016. Stone and Credico have a discussion regarding communications with the “head of Organization 1.” Yet, astonishingly, in Credico’s testimony to the Grand Jury (DOJ-3500-RC-000111) Transcript Page 44, Lines 7-22, Credico tells the Grand Jury that on the very show they quote, Stone and Credico never discussed the head of Organization 1. For unknown reasons and the precise reason why discovery is mandated in these situations, the Special Counsel elected not to charge Credico with lying to the Grand Jury, something expressly within their regulatory authority.

Later in his testimony, Credico says that prior to his interview with presidential candidate Gary Johnson on September 10, 2016, that he had never spoken to Stone about WikiLeaks or Assange.3 This is a demonstrated lie as according to the text messages between Stone and Credico that Stone voluntarily released, and the Special Counsel possessed. As early as August 19, 2016, Credico was bragging to Stone that he had a connection to Assange and that it was through Margaret Kunstler, Esq., an attorney represented to be on Julian Assange’s legal team. There is no indication based on the initial review of discovery provided by the government that the Grand Jury was ever informed of Credico’s lies regarding the August 23d radio interview.

It’s unclear whether Stone’s representation of Credico’s grand jury testimony is fair. But if it is, the selective prosecution claim provides a way to discredit Credico.

Appeal to Barr and Trump

Then there’s a series of arguments that appear to be an attempt to appeal to Bill Barr’s prejudices, and through him, Trump. There’s the separation of powers argument about the lack of a criminal referral that suggests — incorrectly — that Mueller would have needed to rely on Adam Schiff’s testimony to assess whether and how Stone lied in his testimony (as a matter of courtesy, HPSCI shared informal copies of the transcripts with the IC) and claims — probably ridiculously — that an equivalent example of Barr’s contention that the president can’t be guilty of obstruction without committing the underlying crime is also true for the President’s rat-fucker. Stone repeats this argument in his demand for the full Mueller report, claiming that it will show there was no “collusion,” which therefore means he couldn’t obstruct anything.

The most novel of these arguments, however, is that the President — and his campaign from before he was elected!! — can’t be investigated under the Take Care Clause. This is mostly bullshit, a dime store version of Bill Barr’s own opininion excusing many kinds of obstruction for the President. Trump will like it best where Stone argued that investigating all links with Russia inhibited Trump’s ability to conduct foreign policy.

The Mueller Appointment grants the Special Counsel the authority to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” Accordingly, every action taken by President Trump since he formed his campaign with regard to the United States’ relationship with Russia has been second guessed as evidence of “collusion,” or a conspiracy between Trump and Putin.20 Many have asserted that Putin has some form of control over Trump.21 The Special Counsel investigation has stimulated this second guessing, significantly undermining the President’s ability to conduct foreign policy with regard to Russia. The Special Counsel investigation hog-ties the President in the execution of his foreign policy.

The Mueller Appointment not only hobbles the President’s ability to conduct a rational foreign policy with regard to Russia, it undermines his ability to deal with every world leader. No President can deal effectively with the heads of other nations when he is the subject of a Department of Justice investigation that is prominently being portrayed in the press as imminently removing him from office. Counterparts will be inhibited in reliance on a President who may not serve out his term

This is bait for the frothy right. More importantly, it treats Roger Stone as the President for investigative purposes when according to both him and the President he wasn’t even formally part of the campaign for the key periods under investigation.

This is mostly spaghetti throwing for the frothy right, but there’s no telling what will happen if some of the nuttier GOP judges latch on to one of these strands of spaghetti.

Engage in graymail

Stone repeats his demand for the full Mueller report in several ways — first in a bid for the report itself, then as the “prologue” to a bunch of mostly spurious attacks on Mueller’s authority (some of which have already been rejected in the larger Mueller investigation). This is graymail. Of course Stone is not going to get the full report, which includes grand jury material unrelated to his prosecution and descriptions of ongoing investigations likewise unrelated to his prosecution. But he probably does have a good case to claim that he should get the parts that will be redacted for us that pertain to him.

Misstate Barr’s citation of Mueller’s findings

I’m perhaps most interested in the way Stone engages in Russian hack trutherism. For example, his first justification for needing the full Mueller report — even before he claims to need to know why Credico and Corsi weren’t charged — is to understand Mueller’s “assumption” that Russia hacked the Democrats (something that Stone himself admitted until August 2016, when it became inconvenient).

His lawyers must be allowed to review the Report in its entirety because it contains the government’s evidence and conclusions on matters essential to Stone’s defense. Starting with the base assumptions by the Special Counsel that Russians hacked the Democratic National Committee, Democratic Congressional Campaign Committee, and Clinton Campaign email databases (see Indictment, ¶¶ 1-3, 7, 18, 20, 39);

And in Stone’s bid to get his case reassigned, he makes several misrepresentations of the public record. For example, he claims Barr’s representation of Mueller’s finding said there was no evidence of “collusion” between Trump’s associates and Russia.

The Office of the Special Counsel has since concluded its investigation and has found that there is no evidence of collusion between Russia and those associated with the presidential campaign of Donald J. Trump.

Barr addressed only conspiracy and coordination, and all the language is consistent with Mueller not finding enough evidence to charge it, while finding some evidence.

Stone also claims that prosecutors have claimed that his case is associated with the GRU indictment only because communications between Stone and Guccifer 2.0 were obtained with the GRU warrants.

Previously, however, opposing counsel designated this case as related to that of United States of America v. Netyksho, et al. (1:18-cr-00215-ABJ), because the government claimed that communications between Guccifer 2.0 and Stone were obtained from the Netyksho search warrant.

If they said specifically that, then it was in private. In public, the government said this:

The defendant’s false statements did not arise in a vacuum: they were made in the course of an investigation into possible links between Russian individuals (including the Netyksho defendants), individuals associated with the dumping of materials (including Organization 1), and U.S. persons (including the defendant).

[snip]

In the course of investigating that activity, the government obtained and executed dozens of search warrants on various accounts used to facilitate the transfer of stolen documents for release, as well as to discuss the timing and promotion of their release. Several of those search warrants were executed on accounts that contained Stone’s communications with Guccifer 2.0 and with Organization 1.

Even ignoring that Stone seems to cede that at least one of the number of warrants referred to in that filing included his communications with Guccifer 2.0, it’s even more amusing that Stone ignores WikiLeaks — I wonder if they took it out after Julian Assange got arrested?

Stone then misstates another thing Barr said, claiming he claimed no American citizens conspired with “Russian agents.”

[T]he Department of Justice has concluded that there was no conspiracy between Russian agents and any American citizen, including Roger Stone, this “connection” is unsubstantiated.

What the Barr memo actually says about the hack-and-leak operation is,

Special Counsel did not find that the Trump campaign, or anyone associated with it, conspired or coordinated with the Russian government in these efforts, despite multiple offers from Russian-affiliated individuals to assist the Trump campaign.

Barr’s statement only refers to the Russian government, not possible Russian cut-outs like WikiLeaks, and only discusses Americans with ties to Trump.

Stone then claims that the GRU indictment claims no American was part of the conspiracy.

Additionally, the only document filed in Netyksho, the Indictment, states no American was part of the conspiracy charged. There is nothing left to “connect” Roger Stone to.

It doesn’t name any Americans, but also doesn’t say no Americans were part of the conspiracy. Here’s what it says about the conspirators.

[The defendants] were GRU officers who knowingly and intentionally conspired with each other, and with persons known and unknown to the Grand Jury (collectively the “Conspirators”),

Stone’s effort to get a new judge is not going to work in any case. Which leads me to wonder why he repeatedly misstates the public record.

In any case, assuming normal judicial review, Stone’s request for more of the Mueller report might have promise and he could get some thoughtful briefing on a few of the other claims. But most of this is wall-splat for specific audiences: Trump, Barr, and the frothy right.

Andrew Miller claims he has been mooted

Meanwhile, as expected, Stone associate Andrew Miller just requested an en banc review of the DC Circuit ruling that he needs to testify against Stone. Along with the arguments he already lost on, he is now asking the court to find out whether the government really still needs his testimony, arguing (in part) that Mueller’s authority has expired.

Since the subpoena issued to Mr. Miller was for the purpose of obtaining evidence related to Mr. Stone’s connection with WikiLeaks, Julian Assange, and Guccifer 2.0, it would appear that the Special Counsel would no longer need Mr. Miller’s testimony regarding that subject matter. Nevertheless, the next business day, Monday, January 28, 2019, undersigned counsel was advised by the Special Counsel’s office that it believed the case to be a live controversy since the grand jury was still active, though it was not apparent whether the grand jury or its foreperson was consulted as to any continued interest in hearing Mr. Miller’s testimony. 3

On March 22, 2019, Special Counsel submitted his final report to Attorney General Barr pursuant to the Special Counsel regulations, 28 C.F.R. 600.8(c), concluding his investigation, explaining his prosecutions and declinations, and finding that no conspiracy or coordination took place between the Trump campaign or any aides associated with the campaign and Russia regarding interference with the 2016 campaign or hacking the emails of Hillary Clinton or the DNC. 4 No further indictments are expected. According to Justice Department spokesperson Kerri Kupec, “The investigation is complete.”5 Thus, like Cinderella’s carriage that turned into a pumpkin at midnight, Special Counsel Mueller’s authority expired. Accordingly, the intervening events described above that have occurred since the issuance of the subpoena in question over nine months ago, strongly, if not definitively, demonstrate Mr. Miller’s testimony regarding Mr. Stone is no longer required nor can be legally obtained. Thus, this Court should invite the government’s views to verify whether this case continues to be a live controversy or is moot to assure itself that it continues to possess judicial power to adjudicate the instant petition for rehearing and suggestion for rehearing en banc and any subsequent action in this appeal

3 Notably, while the mandate was stayed as is the usual practice until 7 days after the time for the filing a petition for rehearing had expired or after disposition of any timely filed petition (45 days from the decision, or April 12), the Special Counsel had the right to ask the Court to issue the mandate ever since February 26 if Mr. Miller’s testimony was needed. The Special Counsel declined to do so. [my emphasis]

This is really just decoration on an en banc review that will be denied, but along the way he’s fishing for information about where else prosecutors (including the DC AUSAs who’ve been involved since Stone’s indictment, at least) are headed.

Mueller may be done but prosecutors are not

Which brings us, finally, to this response from prosecutors (signed by two DC AUSAs, Jonathan Kravis and Michael Marando, from the Stone team and Aaron Zelinsky from the Mueller team) in response to what is fairly characterized as a media request for all outstanding warrant materials in the Mueller investigation, with a focus on Stone. After getting two extensions, one because the attorneys involved in it were involved in a press of other work, one to transition to the DC AUSAs who’d take over because Mueller was done, the government today issued a narrowly targeted (to Stone) response.

After introducing the scope of the investigation as it proceeded from Comey’s March 20, 2017 scope to Mueller’s May 17, 2017 scope to his March 22, 2019 closure, the government response then stated the media request in remarkably narrow terms, focused just on Stone.

The movants seek to unseal search warrant materials related to the Stone prosecution. Specifically, the movants seek unsealing of “warrants, applications, supporting affidavits, and returns relating to all search or seizure warrants relevant to the prosecution of Roger J. Stone, Jr.” Doc. 4, at 2 (Order) (quoting Media Coalition Mem. 1). 2 It is unclear whether the movant’s request is limited to warrants issued pursuant to Rule 41 or also includes warrants under the SCA. In an abundance of caution, the government is treating the request as covering both categories. It is similarly unclear whether the reference to “warrants relevant to the Prosecution of Roger J. Stone, Jr.” means only warrants to search Stone’s property and facilities or includes other warrants that were executed as part of the same line of investigation. Again, in an abundance of caution, the government is treating the request as covering both categories.3

2 In places, the movant more broadly references warrant materials pertaining to “the Russia investigation” (Mot. 1, 4; Mem. 4) and once references “Manafort records” (Mot. 3). Consistent with this Court’s March 1, 2019 order (Doc. 4, at 2), and the movants’ detailed description of the records sought, see Mem. 4-5, the government understands those references as context for this specific request to unseal records related to the prosecution of Stone. See Mot. 1, 3, 4; Mem. 1, 4, 5.

Yes, it makes a big show of interpreting the media request broadly to interpret the request as both a request for Rule 41 and Stored Communication Act warrants and both Stone’s property and others (though again, they remarkably blow off all requests for anyone but Stone). But then they get to footnote 3, which reveals that there were warrants targeting entirely different people that ended up “merely happen[ing] to yield evidence that concerns Stone.”

3 The government does not understand the request to include warrants that were not related to Stone or that line of investigation but that merely happened to yield evidence that concerns Stone and is being provided to him in discovery.

This is a fairly remarkable disclosure, that the government obtained warrants thinking they were getting one thing that “merely happened to yield evidence that concerns Stone.” Particularly when you consider the earlier discussion of the “multiple lines” of Mueller’s investigation, some of which have been spun off.

The Special Counsel’s investigation has involved multiple lines of inquiry. Many have been handled in the Special Counsel’s Office. But the Special Counsel has also referred a number of matters to other offices in the government for investigation.

[snip]

On March 22, 2019, the Special Counsel notified the Attorney General that he had completed his investigation into Russian interference in the 2016 presidential election. The Special Counsel, however, referred a number of matters to other offices in the Department of Justice. Those matters remain ongoing.

The filing claims, again, that this is an ongoing investigation, with stuff still being handled by “other offices and entities,” plural,

As explained, although the Special Counsel has concluded his work, the Special Counsel referred a number of matters that are ongoing and are being handled by other offices and entities. Disclosure of the warrant materials threatens the harms that courts have catalogued in holding that the First Amendment provides no right of access to search warrant materials in ongoing investigations.

Nor would it make sense to recognize a right of access automatically once any indictment has been returned. In complex investigations, such as this one, where a single warrant may have relevance to interconnected lines of investigation, that test would fail to take into account tangible investigative harms from disclosure. An indictment does not end an overall investigation, for example, when a defendant is potentially involved in activities with other subjects or targets, and the warrant in question seeks evidence bearing on that joint activity, but the defendant has been charged only with a subset of his conduct under investigation. The probability of a continuing investigation post-indictment grows when the search targets are linked to other persons of interest by ties to a single organization, common associates, or coordinated activities. Disclosure of warrant materials could reveal sources, methods, factual and legal theories, and lines of investigation extending beyond the charged conduct.

It suggests a “single warrant may have relevance to interconnected lines of investigation” (I assume those targeting Rick Gates are one example), then specifically says an indictment, like that targeting Stone, “does not end an overall investigation” perhaps because the “defendant has been charged only with a subset of his conduct under investigation” and he “is potentially involved in activities with other subjects or targets … linked to other persons of interest by ties to a single organization, common associates, or coordinated activities.”

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

The Logistics of the Julian Assange Indictment

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The extradition request and indictment have been pending while Vault 7 and Roger Stone have percolated

According to a BuzzFeed report from yesterday’s bail hearing in London, Julian Assange’s extradition warrant was dated December 22, 2017.

That means the extradition request came amid an effort by Ecuador to grant him diplomatic status after which he might be exfiltrated to Ecuador or Russia; the extradition request came the day after the UK denied him diplomatic status.

Ecuador last Dec. 19 approved a “special designation in favor of Mr. Julian Assange so that he can carry out functions at the Ecuadorean Embassy in Russia,” according to the letter written to opposition legislator Paola Vintimilla.

“Special designation” refers to the Ecuadorean president’s right to name political allies to a fixed number of diplomatic posts even if they are not career diplomats.

But Britain’s Foreign Office in a Dec. 21 note said it did not accept Assange as a diplomat and that it did not “consider that Mr. Assange enjoys any type of privileges and immunities under the Vienna Convention,” reads the letter, citing a British diplomatic note.

Both events came in the wake of the revocation of Joshua Schulte’s bail after he got caught using Tor, in violation of his bail conditions. And the events came days before Donald Trump’s longtime political advisor Roger Stone told Randy Credico he was about to orchestrate a blanket pardon for Assange.

In early January, Roger Stone, the longtime Republican operative and adviser to Donald Trump, sent a text message to an associate stating that he was actively seeking a presidential pardon for WikiLeaks founder Julian Assange—and felt optimistic about his chances. “I am working with others to get JA a blanket pardon,” Stone wrote, in a January 6 exchange of text messages obtained by Mother Jones. “It’s very real and very possible. Don’t fuck it up.” Thirty-five minutes later, Stone added, “Something very big about to go down.”

The indictment used to submit an extradition request yesterday was approved by an EDVA grand jury on March 6, 2018, 13 months ago and just a few months after the extradition request.

That means the indictment has been sitting there at EDVA since a few days before Mueller obtained warrants to obtain the contents of five AT&T cell phones, one of which I suspect belongs to Roger Stone (see this post for a timeline of the investigation into Stone). The indictment has been sitting there since a few weeks before Ecuador first limited visitors for Julian Assange last March. It has been sitting there for three months before the government finally indicted Joshua Schulte, in June 2018, for the leak of Vault 7 files they had been pursuing for over a year (see this post for a timeline of the investigation into Schulte). It was sitting there when, in July, Mueller rolled out an indictment referring to WikiLeaks as an unindicted co-conspirator with GRU on the 2016 election hacks, without charging the organization. It was also sitting there last July when David House testified about publicizing Chelsea Manning’s case to the grand jury under a grant of immunity. It was sitting there when Schulte got videotaped attempting to leak classified information from jail, making any prosecution far easier from a classified information standpoint; that happened right around the time Ecuador ratcheted up the restrictions on Assange. It had been sitting there for 10 months by the time Mueller indicted Roger Stone for lying about optimizing the WikiLeaks release of documents stolen by Russia, again while naming but not charging WikiLeaks. It had been sitting there for 11 months when Chelsea Manning first got a subpoena to testify before an EDVA grand jury, and a full year before she went public with her subpoena. It had been sitting there for over a year when Mueller announced he was finishing on March 22; likewise it has been sitting there ever since Bill Barr announced Trump’s team hadn’t coordinated with the Russian government but remained silent about coordination with WikiLeaks.

In short, the indictment has been sitting there for quite some time and the extradition warrant even longer, even as several different more recent investigations appear to be relentlessly moving closer to WikiLeaks. It has been sealed, assuming it’s the same as the complaint the existence of which was accidentally revealed late last year because, “due to the sophistication of the defendant and the publicity surrounding the case, no other procedure is likely to keep confidential the fact that Assange has been charged.”

There’s a somewhat obvious reason why it got indicted when it did. As WaPo and others have pointed out, the eight year statute of limitations on the CFAA charges in the indictment would have run last year on March 7, 2018.

But that doesn’t explain why DOJ decided to charge Assange in this case, when Assange’s actions with Vault 7 appear far more egregious, or why the indictment is just being unsealed now. And it doesn’t explain why it got released — without any superseding allegations — now, even while WaPo and CNN report more charges against Assange are coming.

Here’s what I suspect DOJ is trying to do with this indictment.

The discussion of cracking the password takes place as Manning runs out of files to share

First, consider these details about the indictment. As I noted earlier, the overt act it charges as a conspiracy is an agreement to crack a password.

On or about March 8, 2010, Assange agreed to assist Manning in cracking a password stored on United States Department of Defense computers connected to the Secret Internet Protocol Network, a United States government network used for classified documents and communications, as designated according to Executive Order No. 13526 or its predecessor orders.

[snip]

The portion of the password Manning gave to Assange to crack was stored as a “hash value” in a computer file that was accessible only by users with administrative-level privileges. Manning did not have administrative-level privileges, and used special software, namely a Linux operating system, to access the computer file and obtain the portion of the password provided to Assange.

Cracking the password would have allowed Manning to log onto the computers under a username that did not belong to her. Such a measure would have made it more difficult for investigators to identify Manning as the source of disclosures of classified information.

More specifically, the overt act relates to some exchanges revealed in chat logs that have long been public, dating to March 2010 (see this post for a timeline of some related activities from this period, but not this chat; this post describes a chronology of Manning’s alleged leaks). This is a period when Manning had already leaked things to WikiLeaks, including the Collateral Murder video they’re in the process of editing during the conversation and the Iraq and Afghan war logs that were apparently a focus of the David House grand jury testimony.

In the logs, Manning asks whether WikiLeaks wants Gitmo detainee files (a file that, in my opinion, was one of the most valuable leaked by Manning). Assange isn’t actually all that excited because “gitmo is mostly over,” but suggests the files may be useful to defense attorneys (they were! to some of the same defense attorneys defending Assange now!) or if Afghanistan heats up.

Manning says she’s loading one more archive of interesting stuff.

This appears to be the Gitmo files.

Manning explicitly says that’s all she’s got, and then talks about taking some years off to let heat die down, even while gushing about the current rate of change.

Some hours later, amid a discussion about the status of the upload of the Gitmo files that are supposed to be the last file she’s got, Manning then asks Assange if he’s any good at cracking passwords.

He says he has, “passed it onto our lm guy.”

Two days later Assange asks for more information on the hash, stating (as the indictment notes) that he’s had no luck cracking it so far. Then there’s a six day break in the chat logs, at least as presented.

The next day Assange floats getting Manning a crypto phone but then thinks better of it.

These chat logs end the next day, March 18, 2010. As the indictment notes, however, it’s not until ten days later, on March 28, 2010, that Manning starts downloading the State cable files.

Following this, between March 28, 2010, and April 9, 2010, Manning used a United States Department of Defense computer to download the U.S. Department of State cables that WikiLeaks later released publicly.

It’s unclear whether Assange ever cracked the password — but the chat log suggests he involved another person in the conspiracy

Most people have assumed, given what the indictment lays out, that Assange never succeeded in cracking the password. I have no idea whether he did or not, but I’m seeing people base that conclusion on several faulty assumptions. (Update: HackerFantastic notes that Assange couldn’t have broken this password, but goes on to describe how using other code it might be possible; that’s interesting because Manning was alleged to have added additional software onto the network after the initial Linux device, on May 4, 2010.)

First, some people assume that if Assange had succeeded in cracking the password, the indictment would say so. I’m not so sure. The indictment only needs to allege that Assange and Manning entered into a conspiracy — which the indictment deems a password cracking conspiracy — and took an overt act, whether or not the conspiracy itself was successful. The government suggests that Assange’s comment that he’s had “no luck so far” shows that he has taken an overt act, trying to crack it. Nothing else is required for the purposes of the indictment.

Further, several things about the chat log, as received, suggests there may be more going on in the background. There’s the six day gap after that conversation. There’s the contemplation of getting Manning a crypto phone. And then the chat logs as the government has chosen to release them end, though as the government notes, ten days after they end, Manning starts downloading the State cables.

But the record at least suggests that this conspiracy involves at least one more person, the “lm guy.” Maybe Assange was just falsely claiming to have a guy who focused on cracking certain kinds of hashes. Or maybe the government knows who he is.

The reference to him, however, suggests that there’s at least one more person in this conspiracy. The indictment notes there are “other co-conspirators known and unknown to the Grand Jury,” which is the norm for conspiracy indictments. But there are no other details of who else might be included.

Yes, this particular conspiracy is incredibly narrowly conceived, focused on just that password decryption. But there’s also the “Manner and Means of the Conspiracy” language that has (rightly) alarmed journalists so much, describing the goal of acquiring and sharing classified information that WikiLeaks could disseminate, and describing the operational security (Jabber and deleted chat logs) and inducement to accomplish that goal.

In other words, this indictment seems to be both an incredibly narrow charge, focused on a few Jabber conversations between Assange and Manning, and a much larger conspiracy in which Assange and other unnamed co-conspirators help her acquire and transmit classified documents about the US.

The logistics of the conspiracy prosecution(s)

Which brings me back to how this indictment might fit in amidst several larger, parallel efforts to prosecute WikiLeaks in the last 16 months.

This indictment may be the formalization of a complaint used as the basis for what seems to be a hastily drawn extradition request in December 2017, at a time when Ecuador and Russia were attempting to spring Assange, possibly in the wake of the government’s move to detain Schulte.

The indictment does not allege the full Cablegate conspiracy. David House testified months ago. And the government currently has Manning in jail in an attempt to coerce her to cooperate. That coercive force, by the way, may be the point of referencing the Espionage Act in the indictment: to add teeth to the renewed legal jeopardy that Manning might face if she doesn’t cooperate.

But what the indictment does — and did do, yesterday — is serve as the basis to get Assange booted from the embassy and moved into British custody, kicking off formal extradition proceedings.

As a number of outlets have suggested, any extradition process may take a while. Although two things could dramatically abbreviate it. First, Sweden could file its own extradition on the single remaining rape charge against Assange, which might get priority over the US request. Ironically, that might be Assange’s best bet to stay out of US custody for the longest possible time. Alternately, Assange could simply not contest extradition to the US, which would leave him charged in this bare bones indictment that even Orin Kerr suggests is a fairly aggressive charging of CFAA.

Barring either of those things happening, however, the US government now has one suspect in any conspiracy it wants to charge in the custody of a friendly country. It has accomplished that with entirely unclassified allegations, which means any other suspects won’t know anything more than they knew on Wednesday. Anything else it wants to charge — or any other moving parts it needs to pursue — it can now do without worrying too much that Assange will be put in the “boot” of a Russian diplomatic vehicle to be exfiltrated to Russia.

It has between now and at least May 2 — when Assange has his next hearing — to add any additional charges against Assange, while still having them charged under the Rule of Specialty before any possible extradition. It has maybe a month left on the Mueller grand jury.

Meanwhile, several things have happened recently.

First, in recent weeks two things have happened in the Schulte case. His lawyers made yet another bid to get the warrants that justified the initial searches excluded from the protective order. Schulte and his lawyers have been complaining about these warrants from the start, and Schulte’s public comments or leaks about them are part of what got him charged with violating his protective order. From description, it sounds like FBI was parallel constructing other information tying him to the Vault 7 leaks, and fucked up royally in doing so, introducing errors in the process (though the Hal Martin case makes me wonder whether the errors aren’t still more egregious). The government objected to this request, arguing that the warrants would disclose how the CIA stored its hacking documents and asserting that the investigation is definitely ongoing.

The Search Warrant Materials discuss, among other things, the way that the U.S. Intelligence Agency maintained a classified computer system that was integral to the Agency’s intelligence-gathering mission. Broadly disseminating that information would permit a host of potentially hostile actors to glean valuable intelligence about the way the U.S. Intelligence Agency maintained its computer systems or its security protocols, which would harm national security.

[snip]

The defendant’s abbreviated argument for de-designating the Search Warrant Materials is speculative, conclusory, and misguided. First, the defendant claims that the “time for investigation is long gone.” (Def. Let. at 1). The defendant is neither in a position to judge nor the arbiter of when it is appropriate for the Government to end its investigation into one of the largest-ever illegal disclosures of classified information. Simply put, while details are not appropriate for discussion in a public letter, the Government confirms that its investigation is not done and can supply the Court with additional information on an ex parte basis if the Court wishes.

Meanwhile, the government suggested severing the most recent charges — in which it has video surveillance showing Schulte leaking classified or protected information — from the underlying child porn and Vault 7 leaks.

As the Court is aware, trial in this matter is currently set for April 8, 2019. (See Minute Entry for August 8, 2018 Conference). To afford the parties sufficient time to prepare the necessary pretrial motions, including suppression motions and motions pursuant to the Classified Information Procedures Act (“CIPA”), the parties respectfully request that the Court adjourn the trial until November 4, 2019. The parties are also discussing a potential agreement concerning severance, as well as the order of the potentially severed trials. The parties will update the Court on severance and a pretrial motion schedule at or before the conference scheduled for April 10, 2019.

The defense didn’t weigh in on this plan, which (it would seem) would go a long way to eliminating the government’s parallel construction problem. They were supposed to talk about the severance issue in a hearing Monday, but it sounds like the only thing that got discussed was CIA’s refusal to comply with discovery. My guess is that Schulte will try to get those initial warrants and any fruit of them thrown out, and if that doesn’t work then maybe plead down to prevent a life sentence.

Meanwhile, Ecuador has taken steps to roll up people it claims have ties to Assange.

Tuesday, it fired a staffer in the embassy who had been extremely close to Assange (which may be how he learned about the plans to arrest him last week). Then, yesterday, Ecuador detained Swedish coder Ola Bini, alleging he was involved in some of the hacking they’ve accused Assange of. They also claim to know of two Russian hackers involved.

I have no idea if these developments are just Ecuador trying to cover-up corruption or real ties to WikiLeaks or perhaps something in between. There are no trustworthy actors here.

But — as William Arkin also notes — there’s an effort to test whether WikiLeaks has been at the front end of many of these leaks. Aside from WikiLeaks’ reported source for its Saudi Leaks files from Russia, Arkin focuses less on the reasons there are real questions about WikiLeaks’ relationship with Russia. I think we honestly won’t know which of the untrustworthy sides is being more trustworthy until we see the evidence.

Whichever it is, it seems that DOJ is poised to start building out whatever it can on at least one conspiracy indictment against WikiLeaks. The indictment and its implementation yesterday seems primarily to have served as a way to lock down one part — the most volatile one — of the equation. What comes next may assuage concerns about the thinness of this indictment or it may reveal something far more systematic.

In the meantime, Assange is represented by some great lawyers, both in the UK and here. Which at least increases the chances any larger claims DOJ plans to roll out will be tested aggressively.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

The Assange Indictment and The Rule of Specialty

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Alright, as most of you have discovered, Julian Assange had his asylum status revoked by Ecuador, and officers of the Met (and presumably Scotland Yard too) were allowed into the Ecuadoran Embassy in London to effectuate arrest of Assange. Don’t be fooled by the breathless cable news coverage, the primary arrest warrant was the UK one from Assange’s 2012 jumping of bail conditions, not the extradition request by the US. In short, Assange would still be in custody right now irrespective of the US extradition request.

To flesh out the rest of Assange’s status, to the extent we currently know it, I will pilfer some of the reportage of the excellent Daniel Sandford of the BBC. Assange was presented immediately to Court One at the Westminster Magistrate’s Court where it was made clear that there were two warrants he was arrested on, not just the US request. Assange pled not guilty. He was NOT ordered to present evidence on his failure to surrender (which is appropriate if he declines). The judge presiding, Michael Snow nevertheless, and quite properly, found Assange guilty of the bail offense. Assange will appear in the higher level Southwark Crown Court for sentencing on the bail offense at a future date not yet specified. He will be back in the Westminster Magistrate’s Court, as of now by video link from his detention facility, on May 2nd regarding the extradition matter.

With that background out of the way, let’s look at the more significant US extradition case. First off, here is the EDVA indictment that was unsealed this morning. As you can see, it is for a single count of computer hacking conspiracy. I think most people expected all kinds of different counts, up to and including espionage crimes. Those were not included, nor were the issues from the Vault 7 case, that easily could have been indicted on outside of any real First Amendment issues.

So, while the indictment could have encompassed far many more charges and issues, it does not and is just this one count.

Why is that important?

Because legal commentators like Jeff Toobin on CNN are having a field day noting that there may be more charges forthcoming. And Shimon Prokupecz of CNN reports DOJ is indeed going to seek “additional charges” against Assange. And why is that important? Because of the Rule of Specialty.

I noted this from almost the first second on Twitter, but few other than Ken White (aka Popehat) seem to have caught on to how this doctrine will come into play in the case of Assange. It is a real issue, though we do not know how it will play out at this early stage of the extradition process.

The Doctrine of Specialty is a principle of International law that is included in most extradition treaties, whereby a person who is extradited to a country to stand trial for certain criminal offenses may be tried only for those offenses and not for any other pre-extradition offenses. Long ago and far away I argued this successfully, but that was in relation to the treaty between the US and Mexico. The Assange case obviously involves a different treaty, the US/UK Extradition treaty of 2003.

So, what does the United States of America and the United Kingdom of Great Britain and Northern Ireland Treaty of 2003 provide? Well, that is contained in Article 18, which reads as follows:

Rule of Specialty

1. A person extradited under this Treaty may not be detained, tried, or punished in the Requesting State except for:
(a) any offense for which extradition was granted, or a differently denominated offense based on the same facts as the offense on which extradition was granted, provided such offense is extraditable, or is a lesser included offense;
(b) any offense committed after the extradition of the person; or
(c) any offense for which the executive authority of the Requested State waives the rule of specialty and thereby consents to the person’s detention, trial, or punishment. For the purpose ofthis subparagraph:
(i) the executive authority of the Requested State may require the submission of the documentation called for in Article 8; and
(ii) the person extradited may be detained by the Requesting State for 90 days, or for such longer period of time as the Requested State may authorize, while the request for consent is being processed.

2. A person extradited under this Treaty may not be the subject of onward extradition or surrender for any offense committed prior to extradition to the Requesting State unless the Requested State consents.
3. Paragraphs 1 and 2 of this Article shall not prevent the detention, trial, or punishment of an extradited person, or the extradition of the person to a third State, if the person:
(a) leaves the territory ofthe Requesting State after extradition and voluntarily returns to it; or
(b) does not leave the territory ofthe Requesting State within 20 days of the day on which that person is free to leave.
4. I f the person sought waives extradition pursuant to Article 17, the specialty provisions in this Article shall not apply.

It is early, but Assange has specifically NOT waived extradition, and I do not expect that will change. In fact, he would be nuts to waive it. But look out for the US requesting the UK to waive the issue pursuant to Article 18(1)(c). I have no idea how the UK would treat such a request (nor whether it may have already been made). But give the UK credit, they take extradition conditions seriously and will not extradite where the death penalty is in play.

The death penalty could be an issue were Assange to be subsequently charged under 18 USC §794 (Espionage Act), which reads:

(a) Whoever, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates, delivers, or transmits, or attempts to communicate, deliver, or transmit, to any foreign government, or to any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, or to any representative, officer, agent, employee, subject, or citizen thereof, either directly or indirectly, any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, note, instrument, appliance, or information relating to the national defense, shall be punished by death or by imprisonment for any term of years or for life, except that the sentence of death shall not be imposed unless the jury or, if there is no jury, the court, further finds that the offense resulted in the identification by a foreign power (as defined in section 101(a) of the Foreign Intelligence Surveillance Act of 1978) of an individual acting as an agent of the United States and consequently in the death of that individual, or directly concerned nuclear weaponry, military spacecraft or satellites, early warning systems, or other means of defense or retaliation against large-scale attack; war plans; communications intelligence or cryptographic information; or any other major weapons system or major element of defense strategy.

Now, frankly, I think the US, through the DOJ, would have no problem whatsoever stipulating that the death penalty is off the table for Assange. It is almost a given.

The real question is what becomes of the Assange case in light of the Rule of Specialty. Suppose any superseding indictment does not go into charges outside of the “computer offenses” specified in the current indictment, but seeks to add additional computer offenses in an attempt to increase the sentencing range? Does that violate the spirit of the Rule of Specialty?

There is a lot we simply do not know yet. But this doctrine, and how the US proceeds in light of it, needs to be watched closely as the Assange extradition matter proceeds, both in the UK, and once he is remanded to US custody.

The Carr Correction and the Barr Pseudo Exoneration

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Last week, Buzzfeed released part of a package of materials that Michael Cohen’s lawyers provided to Congress in what appears a last minute bid to stay out of prison. While it still represents just Cohen’s self-interested view (and not any of the corroborating information that Mueller’s team surely has), it makes it clear why Buzzfeed felt justified in claiming that Trump “directed” Cohen to lie. The most shocking new detail is that after Cohen testified, Trump’s lawyer (this package doesn’t reveal whether it was Jay Sekulow or someone else) called Cohen to congratulate him.

Trump knew with certainty that Cohen continued to discuss the Moscow Trump Tower project well beyond January 31, 2016. Yet after the testimony, Cohen received a call from Trump’s attorney, who congratulated him on the testimony – and said his “client” was happy with Cohen’s testimony.

Still, a call from one lawyer in a joint defense agreement to someone else in the JDA — a call that by description Cohen didn’t record — is not sufficient evidence to charge someone with suborning perjury.

Nevertheless, this new evidence may explain why Buzzfeed remains confident in its characterization that Trump directed Cohen to lie.

More importantly, it raises even more questions about why Peter Carr corrected the Buzzfeed characterization. As I noted at the time, someone from Rod Rosenstein’s office called Mueller’s office before they did make a correction. And the next day, Rudy Giuliani claimed credit for getting Mueller to correct the story.

And here we are, not three months later, learning new details of how closely involved Trump’s lawyers were in orchestrating Cohen’s testimony while Attorney General Bill Barr (who had been appointed but not confirmed at the time of the story) withholds Mueller’s own view of those documents, and just weeks after Barr and Rosenstein usurped the role of Congress to declare that the President’s behavior — including efforts, however inadequately supported by admissible evidence, to suborn perjury — does not amount to criminal obstruction of justice.

The details behind Rosenstein’s call and Rudy’s victory lap are not yet public; they’re certainly something the House Judiciary Committee should pursue.

But we can see how important that correction, unique in the history of the Mueller investigation, was to what has come since. The Buzzfeed story elicited the kinds of response that the long trajectory of seeing Trump direct lies should have, the recognition that that such actions might amount to impeachable offenses (which is different than Barr’s judgment about obstruction of justice, even assuming many things didn’t make that judgment suspect). By “correcting” a statement that seems utterly reasonable now, DOJ preserved the opportunity for Rosenstein and Barr to weigh in, however inappropriately.

Even at the time, it appeared that Rosenstein’s (office’s) intervention and Rudy’s victory lap (to say nothing of the campaign rolled out against Buzzfeed, including CNN doing a hit piece against Jason Leopold) should have gotten more attention than the hyperparsing of a word that was readily explainable on its face. That’s all the more clear now.

Had Buzzfeed not been corrected for what now seems an even more defensible word choice, Barr would not have had the opportunity to put his thumb on the scale of injustice.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

The Irony of Glenn Greenwald Cuddling Up with Bill Barr, the Grandfather of Ed Snowden’s Phone Dragnet

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Glenn Greenwald, who has written two books about the abuse of Presidential power, continues to dig in on his factually ignorant claims about the Mueller report. For days, he and the denialists said that if Mueller’s report was being misrepresented by Bill Barr, Mueller would speak up. Now that Mueller’s team has done so, Glenn complains that these are anonymous leaks and nevertheless only address obstruction, not a conspiracy with Russia on the election.

Glenn and his lackeys in the denialist crowd who continue to willfully misrepresent the public evidence have yet to deal with the fact that Mueller has already presented evidence that Paul Manafort conspired with Russian Konstantin Kilimnik on the election, but that they weren’t able to substantiate and charge it because Manafort lied. Mueller’s team say they believe Manafort did so in hopes and expectation that if he helped Trump and denialists like Glenn sustain a “no collusion” line, he might get a pardon. That is, we know that Trump’s offers of pardons — his obstruction — specifically prevented Mueller from pursuing a fairly smoking gun incident where Trump’s campaign manager coordinated with Russians on the hack-and-leak.

As Glenn once professed to know with respect to Scooter Libby’s obstruction, if someone successfully obstructs an investigation, that may mean the ultimate culprit in that investigation escapes criminal charge.

Glenn’s denialism is all the more remarkable, though, given that this same guy who wrote two books on abuse of presidential power is choosing to trust a memo from Bill Barr that was obviously playing legalistic games over what the public record says. As Glenn must know well, Barr has a history of engaging in precisely the kind of cover-up of presidential abuses Glenn once professed to oppose, fairly epically on Iran-Contra. The cover-up that Barr facilitated on that earlier scandal was the model that Dick Cheney used in getting away with leaking Valerie Plame’s identity and torture and illegal wiretapping, the kinds of presidential abuses that Glenn once professed to oppose.

I find Glenn’s trust of Bill Barr, one of the most authoritarian Attorneys General in the last half century, all the more ironic, coming as it does the same week that DOJ IG released this IG report on several DEA dragnets.

That’s because Glenn’s more recent opposition to abuse of power comes in the form of shepherding Edward Snowden’s leaks. Glenn’s recent fame stems in significant degree to the fact that on June 5, 2013, he published a document ordering Verizon to turn over all its phone records to the government.

The dragnet Snowden revealed with that document was actually just the second such dragnet. The first one targeted the phone calls from the US to a bunch of foreign countries claimed, with no court review, to have a drug nexus. Only, that term “drug nexus”  came to include countries with no significant drug ties but instead a claimed tie between drug money and financing terrorism, and which further came to be used in totally unrelated investigations. That earlier dragnet became the model for Stellar Wind, which became the model for the Section 215 dragnet that Glenn is now famous for having helped Edward Snowden expose.

Here’s what the IG Report released the same week that Glenn spent hours cuddling up to Bill Barr says about the original dragnet.

Bill Barr, the guy Glenn has spent 10 days nuzzling up to, is the grandfather of the dragnet system of surveillance.

The IG Report also shows that Bill Barr — the guy Glenn has spent 10 days trusting implicitly — didn’t brief Congress at all; the program wasn’t first briefed to Congress until years after Barr left office the first time.

This is the man that former critic of abusive presidential power Glenn Greenwald has chosen to trust over the public record.

This is, it seems, the strange plight of the denialist left, cozying up to the kind of authoritarians that their entire career, at least to this point, have vigorously opposed.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post.