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Chekhov’s Alan Garten: The Human Gaps in the Surveillance Footage Gap

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This post noted, shortly after Trump’s first stolen documents indictment, that the indictment included nothing about the gaps in surveillance footage DOJ spent much of the last year investigating. It also noted that the indictment did not name the maintenance guy who had played a role in moving boxes around.

But the indictment doesn’t hint at when DOJ found gaps in surveillance footage, the topic of numerous recent interviews, or how those gaps got there. In fact, the maintenance guy who flooded the server room doesn’t appear to be mentioned in the indictment at all (his actions are described in ¶61 and ¶72, without a label for him).

As Jay Bratt’s notice to Aileen Cannon of the new details in the superseding indictment released last night explained, those paragraphs now identify newly-charged Carlos De Oliveira by name.

Paragraphs 62 and 63 now identify De Oliveira as the person who helped Nauta move approximately 30 boxes from Trump’s residence to the Storage Room on June 2, 2022, whereas paragraph 61 of the earlier indictment referred to De Oliveira as “an employee of The Mar-a-Lago Club”;

Paragraph 73 alleges that De Oliveira was one of the “others” identified in paragraph 72 of the original indictment who, on June 3, 2022, with Nauta, “loaded several of Trump’s boxes along with other items on aircraft that flew Trump and his family north for the summer”;

Yet even with the inclusion of De Oliveira in the indictment, the gaps about the gaps in the surveillance footage remain.

The conspiracy added to the indictment, laid out in ¶74 through ¶87, describes an attempt to destroy surveillance footage. As described, Walt Nauta and De Oliveira asked someone, identified in the indictment as Trump Employee 4 but who is likely Yuscil Taveras (identified in this story from NYT), to delete the surveillance server, but he said he could not. He told De Oliveira to contact the supervisor of security for Trump Organization.

83. On Monday, June 27, 2022, at 9:48 a.m., DE OLIVEIRA walked to the IT office where Trump Employee 4 was working with another employee in the IT department. DE OLIVEIRA requested that Trump Employee 4 step away from the office so that DE OLIVEIRA and Trump Employee 4 could talk.

84. At 9:49 a.m., Trump Employee 4 and DE OLIVEIRA left the area of the IT office together and walked through a basement tunnel. DE OLIVEIRA took Trump Employee 4 to a small room known as an “audio closet” near the White and Gold Ballroom. Once inside the audio closet, DE OLIVEIRA and Trump Employee 4 had the following exchange:

a. DE OLIVEIRA told Trump Employee 4 that their conversation should remain between the two of them.

b. DE OLIVEIRA asked Trump Employee 4 how many days the server retained footage. Trump Employee 4 responded that he believed it was approximately 45 days.

c. DE OLIVEIRA told Trump Employee 4 that “the boss” wanted the server deleted. Trump Employee 4 responded that he would not know how to do that, and that he did not believe he would have the rights to do that. Trump Employee 4 told DE OLIVEIRA that DE OLIVEIRA would have to reach out to another employee who was the supervisor of security for TRUMP’s business organization. DE OLIVEIRA then insisted to TRUMP Employee 4 that “the boss wanted the server deleted and asked, “what are we going to do?” [my emphasis]

But that section ends with Nauta and De Oliveira meeting in the bushes just off Mar-a-Lago property the next day, then walking to the IT office, then walking back to the bushes again. There’s no allegation that Nauta and De Oliveira succeeded in deleting the video.

The entire section is bookended with these paragraphs, which — and I say this as a PhD in Comparative Literature — are narratively brilliant.

74. On June 3, 2022, when FBI agents were at The Mar-a-Lago Club to collect the documents with classification markings from Trump Attorney 1 and Trump Attorney 3, the agents observed that there were surveillance cameras located near the Storage Room.

75. On June 22, 2022, the Department of Justice emailed an attorney for TRUMP’s business organization a draft grand jury subpoena requiring the production of certain security camera footage from The Mar-a-Lago Club, including footage from cameras “on ground floor (basement),” where the Storage Room was located.

76. On June 23, 2022, at 8:46 p.m., TRUMP called DE OLIVEIRA and they spoke for approximately 24 minutes.

[snip]

87. [On June 27] At 3:55 p.m., TRUMP called DE OLIVEIRA and they spoke for approximately three and a half minutes. [my emphasis]

The section starts and ends with a call to Trump. But never explains how the gaps ended up in the surveillance footage.

Let me go back.

As noted, and as Bratt noted, the original indictment didn’t identify De Oliveira at all. He was just some “other” guy involved, an employee of the club. In fact, in its first indictment, DOJ used a curious dual form of naming. The following people are clearly identified:

  • Trump and Nauta
  • Trump Employee 1
  • Trump Employee 2 (Molly Michael)
  • PAC Representative (reportedly Susie Wiles)
  • Trump Representative 1 (probably Alex Cannon)
  • Trump Attorney 1 (Evan Corcoran)
  • Trump Attorney 2 (possibly Boris Epshteyn)
  • Trump Attorney 3 (Christina Bobb)

Then there are people who are not identified by name:

  • ¶6a, ¶34: the people to whom he showed the Iran document, and the two staffers (reportedly Margo Martin, who recorded it, and Liz Harrington) who witnessed the interview
  • ¶19: the high level intelligence officials who briefed Trump
  • ¶24: other members of Trump’s White House staff, in addition to Nauta, who helped pack up boxes
  • 58c: A female Trump family member
  • ¶61: an employee of The Mar-a-Lago Club (De Oliveira)
  • ¶72: others, including De Oliveira, who helped load up boxes to go to Bedminster

This new indictment adds three identified Trump employees:

  • Trump Employee 3: the co-worker — who would have been at Bedminster — who alerted Nauta that Trump wanted to see him
  • Trump Employee 4: the IT worker, probably Taveras
  • Trump Employee 5: a valet who was asked — and confirmed in a Signal chat with Nauta — that De Oliveira was loyal

And the indictment adds several more unidentified Trump employees, several of which (like the reference to the female Trump family member in the first) could be sourced entirely to communications obtained from Nauta’s phone.

  • ¶77: The attorney for TRUMP’s business organization
  • ¶79: The people to whom Nauta gave inconsistent explanations of why he was making a secret trip to Florida: one person Nauta told he would not travel with Trump and a Secret Service agent
  • ¶83: Another employee in the IT department
  • ¶84c: Supervisor of Security for Trump’s business organization

Significantly, the original indictment describes how DOJ obtained surveillance footage this way:

In July 2022, the FBI and grand jury obtained and reviewed surveillance video from The Mar-a-Lago Club showing the movement of boxes set forth above.

Though the search warrant affidavit had described that “counsel for the Trump Organization” had a role, the original indictment made no mention of that. It was like a virgin birth of surveillance footage, delivered to the FBI with no explanation.

The other figures described but not named in the superseding indictment may or may not appear in later installments of this tale, like a gun shown in an early act of a play that later goes off.

The last — supervisor of security — is almost certainly Matthew Calamari, Sr, who was one of the very last people to appear before the DC grand jury before this case was moved to Florida and charged. Both Calamari and his son were asked why Nauta texted one of them (it turns out to have been Sr.) to call him about the subpoena request.

Both Calamaris testified to the federal grand jury in Washington on Thursday, and were questioned in part on a text message that Trump’s valet, Walt Nauta, had sent them around the time that the justice department last year asked for the surveillance footage, one of the people said.

The text message is understood to involve Nauta asking Matthew Calamari Sr to call him back about the justice department’s request,

But that exchange is for another indictment, possibly even another venue.

In this indictment, though, the attorney for Trump Organization, almost certainly Alan Garten, plays two roles. First, he received the draft subpoena from Jay Bratt on June 22 (this begins to explain the discrepancy regarding the date of the subpoena that I’ve been obsessed with from the start). And he’s the most likely explanation for why, the next day, Trump called De Oliveira and spoke for 24 minutes.

That is, Garten likely told Trump about the subpoena, which set off a process by which employees attempted to destroy surveillance footage in Florida.

According to Michael Cohen’s testimony, Alan Garten is the one responsible for Cohen’s document production to Congress, which ended up withholding documents showing him contacting Dmitri Peskov’s office. And according to the SSCI Report, there were other, “known deficiencies in the Trump Organization’s document responses.”

While DOJ has interviewed Calamari (and so may or may not have gotten honest testimony about what happened when he called Nauta), they are not known to have interviewed Alan Garten, the bar for which would be very high. They have, however, interviewed Alina Habba, who played a role in a suspected Alan Garten shell game to withhold documents from New York State, and in the process did a search of both Bedminster and Mar-a-Lago before DOJ served a subpoena for classified documents.

In spite of all these new details and new players, we still don’t know what happened between June 27, 2022, when Trump Employee 4 told De Oliveiras to reach out to Matthew Calamari and when Trump spoke to De Oliveira for three and a half minutes, and July 6, when Trump Organization turned over two months of video that reportedly had gaps in it.

There are still gaps in this story about how the reported gaps got into the surveillance footage. Indeed, there are still gaps about what the gaps attempted to hide!

As I showed here, the surveillance footage the FBI did get appears to have shown virtually all of Nauta’s box movements — and would have shown De Oliveira helping Nauta move 30 boxes back into storage on June 2 — because the search warrant affidavit relies on it. But they may not have shown Walt Nauta remove a single box from storage on May 22.

That, of course, was just the first subpoena for surveillance footage. There were more, undoubtedly including for footage showing Nauta and De Oliveira checking out the surveillance cameras with a flashlight on June 25, 2022, entering the IT department, walking through a basement tunnel and into an “audio closet,” then walking back into the IT office on June 27, and possibly, still on June 27, walking into the bushes just off of Mar-a-Lago property for two discussions. This superseding indictment must rely on a later subpoena for more surveillance footage from which the specific times of these movements would have been obtained.

Indeed, when De Oliveira allegedly flooded the IT room in October — at a time when Judge Aileen Cannon had put a stay on the investigation of these activities — he may have been attempting to thwart a second or third subpoena attempt, a cover up of the attempted cover up, an attempt to destroy the surveillance footage that ended up in this indictment.

Altogether, the surveillance footage that DOJ has since obtained covers nine different months.

The initial production also included some 57 terabytes of compressed raw CCTV footage (so far there is approximately nine months of CCTV footage, but the final number is not yet certain).

DOJ claims to have pinpointed which cameras they wanted and on what specific dates.

The Government similarly identified to the Defendants a small subset of “key” CCTV footage referenced in the Indictment or otherwise pertinent to the case. See id. And although the CCTV footage the Government obtained and produced comes from various months, the Defendants’ characterization of the production as including “nine months of CCTV footage,” see Resp. at 4, is misleading. The Government obtained footage only from selected cameras (many of which do not continuously record) from selected dates throughout the period for which it obtained footage.

But there’s something in that surveillance footage that has made Trump very concerned about leaks, more so than he was about the documents seized last August.

This indictment provides shocking new details about Nauta and De Oliveiras’ alleged efforts to comply with Trump’s orders to destroy surveillance footage.

But it does not yet explain how reported gaps ended up in the surveillance footage.

And it doesn’t yet explain what Trump was trying to hide — what was worse than video showing Nauta emptying out the storage closet and then only half-filling it before Evan Corcoran did a search.

Where Alina Habba Didn’t Personally Search

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Given the news that Alina Habba appeared before the grand jury investigating Trump’s stolen documents, I wanted to go back to the declaration she submitted in the NY State investigation pertaining to diligent searches for documents in that investigation back in May 2022.

Politico reported on it before the public release about details of the stolen classified documents, and as such was taken as a claim that Habba conducted a search of the locations where documents were known to have been stored.

But it wasn’t.

Obviously, that’s true because (as Habba made a big deal of pointing out just after the original Politico report) the May 2022 searches were just for documents responsive to Tish James’ subpoena focused on the valuation of various properties, not for classified records.

But that’s also true because Habba did not search all the locations known to have stored Trump’s stolen documents.

The certifications involved include a nested certification, on Trump’s behalf, to the diligence of the search. Trump personally signed an affidavit, but he relied on the diligence of searches done by others, including the physical searches of three properties by lawyers.

5. Nevertheless, in an abundance of caution and in accordance with the Order, I authorized the additional, follow-up searches to be performed on my private residences:

a. On May 4, 2022, I authorized my attorney, Alina Habba, to search my private residence and personal office located at Trump National Golf Club in Bedminster, New Jersey for any and all documents responsive to the Subpoena.

b. On May 5, 2022, I authorized Alina Habba to search my private residence and personal office located at The Mar-a-Lago Club in Palm Beach, Florida for any and all documents responsive to the Subpoena.

c. On May 5, 2022, I authorized Alan Garten, General Counsel for the Trump Organization, to search my private apartment located in Trump Tower in New York, New York for any and all documents responsive to the Subpoena

[snip]

It is my understanding that searches of the above-listed locations have been performed by my attorneys, the Trump Organization Legal Department, the Trump Organization IT Department, and others.

Habba was not involved in the searches of business locations in Trump Tower or Trump’s residence there. Alan Garten was.

Garten was similarly responsible for compliance with subpoenas in conjunction with the various Russian investigations, and there are what SSCI called, “known deficiencies in the Trump Organization’s document responses,” including the email between Michael Cohen and Dmitri Peskov’s assistant, among others.

Garten did not submit a declaration in this package. Instead, Habba vouched for the diligence of Garten’s search.

f. On May 5, 2022, I coordinated and communicated with Alan Garten via telephone with regard to his search of Respondent’s private residence in Trump Tower including all desks, drawers, file cabinets, and similar locations likely to house files or documents. The search did not identify any documents responsive to the Subpoena.

So in this filing, Trump relied on the searches done by Habba and Garten, but Garten relied on Habba to attest to the diligence of the search.

And no one searched the storage facility in Florida at which some of Trump’s White House papers were stored, where two classified documents were discovered in follow-up searches by Trump’s lawyers in November.

But even the two properties Habba did search include gaps.

b. On May 4, 2022, I diligently searched each and every room of Respondent’s private residence located at Trump National Golf Club Bedminster, including all desks, drawers, nightstands, dressers, closets, etc. I was unable to locate any documents responsive to the Subpoena that have not already been produced to the OAG by the Trump Organization.

c. On May 4, 2022, I diligently searched Respondent’s personal office located at Trump National Golf Club Bedminster, including all desks, drawers, file cabinets, etc. I was unable to locate any documents responsive to the Subpoena that have not already been produced to the OAG by the Trump Organization.

d. On May 5, 2022, I diligently searched each and every room of Respondent’s private residence located at Mar-a-Lago, including all desks, drawers, nightstands, dressers, closets, etc. I was unable to locate any documents responsive to the Subpoena that have not already been produced to the OAG by the Trump Organization.

e. On May 5, 2022, I diligently searched Respondent’s personal office located at Mara-Lago, including all desks, drawers, file cabinets, etc. I was unable to locate any documents responsive to the Subpoena that have not already been produced to the OAG by the Trump Organization.

It’s hard to see how a one day search of these facilities, May 4 at Bedminster and then May 5 at Mar-a-Lago, could be that thorough, in any case.

But on May 5, when Habba was searching MAL, the bulk of the documents that were later seized were probably still in the storage closet from which they were moved in advance of Evan Corcoran’s search leading up to June 3. That’s neither the residence nor Trump’s office.

While there were likely classified documents in the drawers she searched at the time she searched them — a Secret document attached to Roger Stone clemency paperwork, and a Secret and a Confidential document attached to post-Administration messages from others — it’s not clear where the leatherbound box that held the most sensitive documents would have been stored in May 2022 (which was ultimately found in the office). And it’s still not clear where the classified documents in a box with Trump’s White House schedules was when the FBI conducted its search in August.

But there’s no way Habba would have found most documents, because most documents were still in that storage room.

They are understood to have been moved out of the storage room into the residence after the May 11 subpoena, days after Habba’s search.

Habba’s testimony would have been useful for showing that when asked to do a diligent search, Trump specifically hid from her one of the locations where he stored documents. She also would have added testimony about the absence of boxes in the residence when she searched it.

Trump’s Timid (Non-Legal) Complaints about Attorney-Client Privilege

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Yesterday, I observed that the FBI gave the former President two different receipts for the search on his golf resort.

There’s the one consisting of five boxes and a separate category, “Documents,” not associated with any boxes, signed by the Supervisory Special Agent. There are no classified documents described. I’ll refer to that as the SSA Receipt in this post.

Then there’s the one that consists of 27 items, mostly boxes, many with sub-items, which are often descriptions of the kinds of classified documents contained in the box or the leather case they were seized in. It was signed by a Special Agent. I’ll refer to that as the CLASS Receipt in this post.

I suggested that one explanation for providing Trump two separate receipts might be if the SSA receipt covered evidence showing Trump violated 18 USC 1519, destruction, alteration, or falsification of records in Federal investigations, and the CLASS receipt covered evidence showing Trump violated 18 USC 793, retaining national defense information under the Espionage Act. I argued the two receipts would cover evidence responsive to crimes that might be charged in different venues, DC for the obstruction charge and SDFL for the Espionage charge.

The third statute on Trump’s warrant, 18 USC 2071, removal of official records would cover everything covered by the Presidential Records Act and would generally backstop everything seized under the other two statutes. It covers both. Consider it an umbrella charge.

Today Trump, in the form of a post on Truth Social and related stories shared to Trump-friendly media, has confirmed I’m right that there’s significance to the two separate receipts.

Trump-friendly outlets have explained that “the former president’s team was informed” that the materials seized via what I’ve called the SSA receipt “contain information covered by attorney-client privilege” but that DOJ “opposed Trump lawyers’ request for the appointment of an independent, special master to review the records.”

The FBI seized boxes containing records covered by attorney-client privilege and potentially executive privilege during its raid of former President Trump’s Mar-a-Lago home, sources familiar with the investigation told Fox News, adding that the Justice Department opposed Trump lawyers’ request for the appointment of an independent, special master to review the records.

Sources familiar with the investigation told Fox News Saturday that the former president’s team was informed that boxes labeled A-14, A-26, A-43, A-13, A-33, and a set of documents—all seen on the final page of the FBI’s property receipt —contained information covered by attorney-client privilege.

[snip]

Sources told Fox News that some records could be covered by executive privilege, which gives the president of the United States and other officials within the executive branch the authority to withhold certain sensitive forms of advice and consultation between the president and senior advisers.

I believe there must be some truth to this because if Trump were making completely unsubstantiated claims, he would have made it more generally, claiming that all the boxes must include attorney-client privileged material. Furthermore, Trump’s claims to have watched the search via CCTV notwithstanding, it is highly unlikely Trump has CCTV coverage of his own office, bedroom, and a random storage closet such that he would know what’s in box A-14 (and so on the SSA receipt) versus what’s in box A-15 (which was on the CLASS receipt). Someone who knows the outcome of the search told Trump that one set, but not the other, has materials that are attorney-client privileged. That has to come from the government.

That doesn’t mean my larger hypothesis — that one receipt covered violations of the Espionage Act and the other covered obstruction — has been vindicated. On the contrary, DOJ may simply have chosen to put all records that include an attorney-client claim on a separate receipt so that, if Trump obtains a competent lawyer and demands the Special Master review he’s making a half-hearted request for now, DOJ can move forward with all the other evidence without a 9-month delay like the Special Master review of Rudy Giuliani’s phones necessitated. It would be a clever way of dealing with a very sensitive legal issue.

But I don’t think it’s as simple as that either. Bizarrely, Trump knows something about those boxes such that he’s trying to claim Executive Privilege, in addition to attorney-client privilege.

It’s a nonsense claim, legally. Probably every single box seized last Monday has materials covered by Executive Privilege in them, because every single box would include communications directly with Trump. But there is absolutely no basis for any EP claim for a single thing seized from Mar-a-Lago because the Presidential Records Act underlying the seizure is designed, specifically and especially, to make sure all the EP materials are preserved for history. It’s one of the reasons his refusal to turn over the materials that the Archives were asking for specifically is so insanely stupid, because it gave FBI no choice but to come seize this stuff. Trump’s not making an EP claim to try to delay DOJ’s access to the 27 items, which are mostly boxes, on the CLASS receipt. So he must have learned something about the materials itemized in the SSA receipt to which, in a frantic and transparently silly effort, he’s trying to delay DOJ’s access.

Trump’s announcement that the material on the SSA receipt seems to rule out another possible explanation for the SSA receipt I had been pondering, that it covered the materials that were particularly sensitive from a national security perspective, such as the information on nuclear weapons.

And it doesn’t rule out my hypothesis that that material was seized in the obstruction investigation. Indeed, in two ways, it might corroborate my hypothesis.

There are two theories of the 1519 charge. One, which NYU’s Ryan Goodman is championing, suspects it is about the investigation into Mar-a-Lago, criminalizing the effort in June to withhold materials. If that were the significance of the 1519 charge, separating out the communications between lawyers and NARA and DOJ might make sense, since those would be communications into this investigation. That said, there’d be no basis for an EP claim for any of that, since it all post-dated Trump’s ouster. And as soon as DOJ confirmed that some classified material had been knowingly withheld in June when his lawyers told DOJ that it was all turned over, there’d be a crime-fraud exception for those materials.

My theory of the 1519 charge — that it arose out of NARA’s discovery that Trump had attempted to destroy materials subpoenaed in past and present investigations — would similarly be likely to have attorney-client privileged documents. Take a few examples:

  • One thing Trump is likely to have withheld is the Perfect Transcript between him and Volodymyr Zelenskyy, which is something Congress was entitled to get during impeachment. That transcript was hidden from Congress by White House lawyer John Eisenberg, among other lawyers, thereby according the transcript a weak privilege claim, but one easily overcome by the obstructive nature of the choice to withhold it.
  • Another set of things we know were withheld from several investigations were documents showing sustained communications with Russia that should have been turned over by the Trump Organization. The most provable of those were the communications between Michael Cohen and Dmitri Peskov’s office in January 2016 (Mueller got his own copy via Microsoft). There’s probably correspondence regarding an invite Russian Deputy Prime Minister Sergei Prikhodko extended to Trump to attend Putin’s St. Petersburg Economic Forum in June 2016. The Trump Organization did not produce to SSCI the copy of Paul Manafort’s Securing the Victory email he sent to Rhona Graff. The subpoena response on all these issues was handled by Trump’s corporate lawyers, Alan Futerfas and Alan Garten, and so would be privileged — but also crime-fraud excepted — evidence that Trump obstructed various Russian investigations.
  • While one draft of Trump’s termination letter to Jim Comey was ultimately turned over to Mueller (after reports that the only extant copy was one preserved by DOJ lawyers), the Mueller Report narrative surrounding it makes it clear that Trump and Stephen Miller worked over several drafts before the one shared with others. Those earlier drafts were likely not turned over, in part because White House Counsel lawyers advised Trump that these drafts should “[n]ot [see the] light of day.” Again, that’s legal advice, but also proof of documents that were illegally withheld from the Mueller investigation.
  • I don’t want to even imagine what advice from Rudy Giuliani that Trump has withheld from various investigations, particularly pertaining to January 6. Most of that would be (shitty) legal advice. If it was also withheld from proper investigations, though, it’d also be proof of obstruction under 18 USC 1519.

In other words, aside from the documents Trump tried to rip up or eat or flush, many of Trump’s known violations of 18 USC 1519 would involve lawyers directly. Virtually every investigation into Trump was stymied by improper decisions by lawyers. And those withheld documents would once have been privileged, but they’d also be solid proof of obstruction.

And if Trump had reason to believe that DOJ, after predicating an investigation on all the evidence Trump had tried to rip up or eat or flush evidence, had sought and seized all the attorney-client protected materials that had insulated Trump from consequences for his past actions, it might explain one of the biggest puzzles from the last week. For some reason, Trump has worked far harder to obscure that this obstruction investigation exists than that he’s under investigation for a crime with the word “Espionage” in the title. For some reason, Trump is more afraid of the obstruction investigation than the Espionage Act investigation.

One possible explanation for that is that he fears the other secrets he’s been keeping more than proof that he stole a bunch of otherwise innocuous Top Secret documents.

Perhaps the most interesting thing about this latest complaint — first voiced on the 7th day after the search — is it shows that DOJ is in contact with someone presenting themself as Trump’s lawyer.

That’s not surprising. DOJ informed Trump of the search. Even for a simple criminal case into attempting to steal the election (assuming Trump could find someone who would confess to be his lawyer), DOJ would want to have discussions about how to proceed.

In this case, however, the crimes under investigation include, at a minimum, violations of the Espionage Act. DOJ always tries to find a way to resolve those from the get-go, because prosecutions about stolen classified information are always damaging to the equities you’re trying to protect. That’s all the more true in the unprecedented case where the suspect is the former President. At a minimum, DOJ likely has or will float Trump the offer of an offramp like an 18 USC 2701 guilty plea if he cooperates to tell the government about the whereabouts of all the classified documents he stole.

And if what Trump is trying to hide in the obstruction investigation is even more damning, as his behavior suggests it might be, DOJ might actually have enough leverage to make Donny to consider such an offer.

Still, the legal quiet has been making me nervous. I have been waiting all week for a docket to spring up with a Trump motion for a Temporary Restraining Order stalling any access to these files.

For comparison, the docket on a similar challenge from Michael Cohen in 2018 was created just 4 days after the search of his residences, and the discussions about the search began that same day.

On the same day as the seizures (April 9, 2018), the undersigned counsel requested in writing that the U.S. Attorney’s Office for the SDNY return all of the seized property and allow Mr. Cohen and his attorneys the opportunity to screen the materials for privilege, produce any relevant, non-privileged documents to the government, and provide a log of any documents withheld on privilege grounds. Id., ¶ 32, Ex. A. On Wednesday, April 11, 2018, the government responded by letter, rejecting defense counsel’s proposal and informing defense counsel that the government would begin to review the materials at noon on Friday, April 13, 2018. Id. ¶ 33, Ex. B. Accordingly, Mr. Cohen hereby moves for immediate injunctive and equitable relief seeking the opportunity to have his counsel review the seized documents in the first instance, before any review by any law enforcement personnel, for privilege and responsiveness, and, if the Court believes it necessary, for the appointment of a Special Master to supervise that review process.

Trump moved to intervene that same day, April 13, just four days after the seizures.

In the case of the search on Rudy’s phones, SDNY itself asked for a Special Master the next day (though Trump never intervened).

There have to be similar discussions going on now. There just have to be. Trump’s paucity of lawyers — and the conflict posed by the possibility that Evan Corcoran, his most competent current defense attorney, may be conflicted out by dint of having signed an affirmation that Trump turned over all his classified documents in June — cannot explain a full week delay.

But thus far, in spite of every media outlet and their mother filing motions to unseal the search affidavit itself, no one has started pushing to unseal an inevitable fight over access to the seized material. (Again, by comparison, the NYT filed to intervene the day the Cohen warrant docket was made public.)

So for whatever reasons, a full week has elapsed since a lawful search executed on the golf resort of the former President and the first we’re learning about legal discussions — aside from NYT’s revelation that Trump made a veiled threat against Merrick Garland on Thursday — is Trump’s complaint covering just the documents that don’t seem to implicate the Espionage Act.

Something has caused that discussion to remain sealed. And that, by itself, is remarkable.

Update: As klynn reminds in comments, another document that the Trump White House altered was the MemCon of the meeting between Trump and Sergey Lavrov in which he gave the Russians highly sensitive intelligence. I laid out what we know of that alteration, the fall-out, and Mueller’s investigation into it here. If my theory about the SSA receipt is right, that any remaining unaltered record of the meeting found at MAL would be on the SSA receipt. Except the alterations, in this case, are not yet known to involve an attorney, so would not be attorney-client privileged.

emptywheel Trump Espionage coverage

Trump’s Timid (Non-Legal) Complaints about Attorney-Client Privilege

18 USC 793e in the Time of Shadow Brokers and Donald Trump

[from Rayne] Other Possible Classified Materials in Trump’s Safe

Trump’s Stolen Documents

John Solomon and Kash Patel May Be Implicated in the FBI’s Trump-Related Espionage Act Investigation

[from Peterr] Merrick Garland Preaches to an Overseas Audience

Three Ways Merrick Garland and DOJ Spoke of Trump as if He Might Be Indicted

The Legal and Political Significance of Nuclear Document[s] Trump Is Suspected to Have Stolen

Merrick Garland Calls Trump’s Bluff

Trump Keeps Using the Word “Cooperate.” I Do Not Think That Word Means What Trump Wants the Press To Think It Means

[from Rayne] Expected Response is Expected: Trump and Right-Wing DARVO

DOJ’s June Mar-a-Lago Trip Helps Prove 18 USC 793e

The Likely Content of a Trump Search Affidavit

All Republican Gang of Eight Members Condone Large-Scale Theft of Classified Information, Press Yawns

Some Likely Exacerbating Factors that Would Contribute to a Trump Search

FBI Executes a Search Warrant at 1100 S Ocean Blvd, Palm Beach, FL 33480

The Curious Treatment of Michael Cohen’s Trump Organization Email

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As close readers know, I’ve been fascinated by DOJ’s treatment of Michael Cohen’s Trump Organization email for some time. That’s true for several reasons.

First, one of the earliest warrants targeting Cohen revealed that Microsoft hosts (or hosted) Trump Organization emails. When the FBI first started putting together an investigation into Cohen for suspicious activity surrounding his Essential Consulting bank account, they first sent preservation orders to Microsoft, then obtained his emails directly from the tech company. Effectively, Cohen (and any other Trump Organization employees the FBI targeted after that, probably including Don Jr) got stung by a practice Microsoft had long been complaining about, that when the government came to it, rather than to Microsoft’s enterprise customers (like universities and businesses), Microsoft could not provide those customers notice, which might provide them an opportunity to challenge an order or protect privileged material.

That’s particularly interesting given the indications that the Trump Organization, which decided what documents to turn over to Congress in response to a subpoena served on Cohen, did not turn over emails that would have proven as false story that Cohen told about his interactions regarding the Trump Tower Moscow story.

Q Now, in your February 28th interview before this committee you mentioned that Alan Futerfas and Alan Garten, the two lawyers who were tied to The Trump Organization, were responsible for the document production that you produced to the committee in response to this committee’s May of 2017 subpoena. ls that accurate?

A That’s accurate.

[snip]

Q Do you have any information about why The Trump Organization would have withheld from this committee production of the January 141h, 2016, email from you to Peskov’s office?

A I do not.

Q Same question as to the January 16th, 2016, email from you to Peskov’s office regarding Sergei lvanov?

A I also do not.

Q Same question with regards to the January 20th,2016, email from Elena Poliyakova (ph)?

A I do not

THE CHAIRMAN: Mr. Cohen, what Mr. Mitchell is asking about is you’ve testified that the members of the joint defense agreement were aware that the written testimony that you were going to give to this committee was false. Documents that would have contradicted that timeline, namely, the three that Mr. Mitchell just referenced, were not produced to this committee. ls there any insight you can shed as to who might have been involved in withholding documentary evidence that would have contradicted your written false testimony?

MR. COHEN: Again, it would be other members of the joint defense team, but specifically at The Trump Organization level.

Cohen told HPSCI that he was reminded of these emails when Mueller showed them to him. In other words, Mueller obtained them, but (if HPSCI is correct on this point) Congress did not, even though the emails were solidly within the scope of a subpoena served on Cohen. That Mueller obtained the emails from Microsoft is one likely explanation for how he got them but HPSCI did not (though he had also subpoenaed Trump Organization in March 2018 before Cohen started cooperating in September of that year and a year before Cohen’s third appearance before HPSCI).

That’s why I’m interested in this footnote in the warrant to search Cohen’s properties in April 2018.

According to an article in the Washington Post, which quoted emails sent from Cohen’s email account hosted by the Trump Organization, on October 17, 2016, Davidson emailed Cohen and threatened to cancel the aforementioned “settlement agreement” by the end of the day if Cohen did not complete the transaction.29 According to the article, Davidson sent Cohen a second email later in the day that stated in part, “Please be advised that my client deems her settlement agreement canceled and void.”

29 Due to the partially covert nature of the investigation to this date, the USAO has not requested documents from the Trump Organization or Davidson, and thus does not possess the email referenced in this article.

There’s no reason to believe the “USAO” (meaning SDNY’s US Attorney’s office) had the email. But the government — Mueller’s team — probably did, from the search warrant served on Microsoft on August 1, 2017. But the public record doesn’t show that Mueller handed it over to SDNY when they handed off the bank investigations February 2018, or even after that time.

On February 28, 2018, SDNY obtained a warrant for the Gmail and 1&1 content Mueller had obtained in 2017 and handed over to SDNY on a USB drive to SDNY on February 8, 2018. But — in spite of the fact that the original Mueller Gmail warrant and the Trump Org warrant discussed (¶¶13-19) Cohen’s payment to Stormy Daniels — the February 28 warrant covered just Cohen’s financial fraud. It wasn’t until April 7, 2018 that SDNY obtained a warrant to search the Gmail content, the 1&1 content, and the iCloud content (which Mueller provided them on March 7, 2018) in the campaign finance investigation.

But as the footnote noted, they never obtained a warrant to search the Trump Org emails, even though that content was presumably also in Mueller’s possession.

There may be a very logical explanation for why they didn’t: on October 27, 2017, DOJ agreed to limit its use of secrecy orders. It’s quite possible that the government believed any new warrant for content originally provided by Microsoft would have to adhere to the new policy, even if it had been obtained before the new policy went into effect (we see similar policy granularity in SDNY’s need to get a warrant for Google content held overseas, whereas Mueller — who operated in a different Circuit without that precedent — did not have to submit a separate warrant).

That said, given the discussions of why things got referred when they did (and the different treatment of Cohen’s non-Russian crime from Manafort and Flynn’s non-Russian crimes), I am rather interested that SDNY treated Trump Org emails differently than Mueller did (and, perhaps, that Mueller submitted a warrant to Trump Org for content he already had).

As I said, the most likely explanation is that the change in DOJ policy led to a change in treatment of Trump Org’s Microsoft hosted email, meaning SDNY could not ask for the emails even from Microsoft without alerting Trump to the investigation. But it’s possible that the differential treatment arises from greater deference provided to Trump related content as investigations into him proceeded.

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. 

Two Factors that May Change the Impeachment Calculus, Part One: To Enforce a GOP Subpoena Covering a Trump Lie to Mueller

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Since Justin Amash started laying out the necessity of impeachment and even more after yesterday’s Mueller press conference, the question of whether or not to start an impeachment proceeding against the President has picked up steam.

In my opinion, Democrats have to start that process, in part to have a ready response as Trump’s increasingly authoritarian approach to governing violates more and more foundational norms.

But I also wanted to point to two fairly recent developments that may change that calculus. This post will describe how Trump Organization did not comply with a GOP-issued Congressional subpoena that sustained a lie that Trump has since reiterated, under oath, to Mueller.

New evidence that Trump lied to Mueller and Trump Organization defied a (GOP-issued) subpoena

As I noted the other day, Michael Cohen’s testimony to the House Intelligence Committee revealed several things:

  • Trump replicated Cohen’s lies — that is, a cover story his defense attorney helped to write — in his sworn answers to Mueller
  • Trump Organization (probably Alan Garten) withheld emails from Cohen and HPSCI that would have made it clear Cohen was lying about the Trump Tower Moscow deal

Trump’s statement, submitted under oath, to Mueller included the following assertions:

  • Trump and Cohen only had a few (three) conversations about the deal rather than ten or more
  • Trump did not know of any travel plans to Russia
  • Trump didn’t discuss the project with anyone else at Trump Org, including Ivanka and Don Jr
  • Cohen’s attempt to contact Dmitry Peskov in January 2016 was via a public email address and proved unsuccessful

Compare those lies with the three main lies Cohen pled guilty to.

  • The Moscow Project ended in January 201 6 and was not discussed extensively with others in the Company.
  • COHEN never agreed to travel to Russia in connection with the Moscow Project and “never considered” asking Individual 1 to travel for the project.
  • COHEN did not recall any Russian government response or contact about the Moscow Project.

That is, in spite of rumblings that Cohen was cooperating with Mueller, Trump still told the story his lawyer had helped Cohen write. And Mueller gave Trump an opportunity to fix his testimony, but he refused. In spite of the more-than-a-year long effort to avoid telling lies to the Special Counsel, Trump still managed to do so.

Perhaps that’s why the FBI (though possibly NY-based agents tied to the investigation into Bob Costello’s pardon dangle) interviewed Cohen again on March 19, 2019, which is the latest interview noted in the Mueller Report (this section must be one of the last things Mueller’s team finished as footnotes 1057-9 and 1071 all post-date the discussion of Trump’s non-responsive answers in Appendix C).  Along with more details about the various pardon dangles offered to Cohen, that interview elicited this testimony:

During the summer of 2016, Cohen recalled that candidate Trump publicly claimed that he had nothing to do with Russia and then shortly afterwards privately checked with Cohen about the status of the Trump Tower Moscow project, which Cohen found “interesting.”940 At some point that summer, Cohen recalled having a brief conversation with Trump in which Cohen said the Trump Tower Moscow project was going nowhere because the Russian development company had not secured a piece of property for the project.941 Trump said that was ” too bad,” and Cohen did not recall talking with Trump about the project after that.942 Cohen said that at no time during the campaign did Trump tell him not to pursue the project or that the project should be abandoned. 943

[snip]

Cohen recalled explaining to the President’s personal counsel the “whole story” of the attempt to set up a meeting between Trump and Putin and Trump’s role in it.981 Cohen recalled that he and the President’s personal counsel talked about keeping Trump out of the narrative, and the President’s personal counsel told Cohen the story was not relevant and should not be included in his statement to Congress.982

[snip]

941 Cohen could not recall the precise timing of this conversation, but said he thought it occurred in June or July 2016. Cohen recalled that the conversation happened at some point after candidate Trump was publicly stating that he had nothing to do with Russia.

That Trump adhered to this lie even after Cohen showed signs of flipping makes the apparent fact that Trump Organization withheld emails that would make it clear Cohen lied to the House Intelligence all that more damning. This is one of three emails that would have made it clear to HPSCI in real time that Cohen was lying that apparently did not get turned over.

Remember: Cohen was almost alone among Trump flunkies in having been subpoenaed by any committee in Congress. And the subpoena that Trump Organization defied was signed not by Adam Schiff, but by Devin Nunes [Update: this may have been Mike Conaway].

Even with all the efforts Republicans in Congress have made to help Trump avoid legal jeopardy, he — or rather, his eponymous company — still managed to break the law in complying with GOP requests!

Congress can obtain withheld Trump Organization emails more easily than thought

And while normally proving that Trump Organization violated the law to protect the President would be especially hard for Congress to prove (because they’ll fight subpoenas even more aggressively than Trump’s accountants or creditors), the opposite may be the case in this instance.

That’s because since June 21, 2017, Microsoft — which provides Trump Organization’s email service for the company — has been preserving Michael Cohen’s Trump Organization emails and since July 14, 2017, Microsoft has been preserving all Trump Organization emails.

54. On or about July 14,2017, the Federal Bureau of Investigation sent a request, pursuant to l8 U.S.C. $ 2703(f), to Microsoft, requesting that Microsoft preserve all content for all email accounts associated with the domain “trumporg.com,” which included the Target Account.

[snip]

62. On or about June 21, 2017, the Federal Bureau of Investigation sent a request, pursuant to 18 U.S.C. $ 2703(f), to Microsoft, requesting that Microsoft preserve all content associated with the Target Account.

So rather than going to Trump Organization to obtain proof that their Attorney Alan Garten withheld documents that were clearly responsive to a Congressional subpoena, HPSCI can go to Microsoft itself.

Michael Cohen is the a demonstrable example of someone who was willing to lie only so long as a pardon offer was on the table

One more detail about Cohen makes his case a particularly apt case to impeach the President.

The sworn evidence in the case makes it very clear Cohen was willing to — and did — lie to Congress so long as he believed he’d be pardoned for those lies.

But as soon as it became clear that he could not expect a pardon, Cohen decided to start telling the truth.

(I’ll revisit and reconfirm this, but the record shows that a pardon was withdrawn (and Trump stopped paying Cohen’s legal bills) around the same time 1) Trump got to see all the paperwork and recording that might back Cohen’s claims against him 2) He saw that Cohen had recorded him agreeing to the Karen McDougal hush payment).

He told the truth about something implicating “Individual-1” as a co-conspirator.

And he told the truth about lying to Congress.

In other words, with Cohen, it will be very easy to show that Trump’s pardon offers led to a witness providing false testimony in response to a Congressional subpoena (false testimony made possibly only through parallel obstruction on the part of Trump’s business).

In other words, Cohen is a fairly strong case proving Trump successfully suborned perjury.

So with Cohen, there is all new evidence of Trump-related crimes: Trump’s sworn lies about Trump Tower Moscow to Mueller mirrored by Trump Organization’s defiance of a Republican issued Congressional subpoena on precisely that topic.

And Congress should be able to get proof of it.

This provides an opportunity to pitch impeachment in terms of GOP equities. That will surely not make a difference for Republicans, at first, but for any that want to find an excuse to come around to supporting impeachment, it may be useful down the road.

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. 

Why Trump Believed He Could Withhold the June 9 Email: Because He Succeeded in Withholding Moscow Trump Tower Ones

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In this post, I showed that I was correct when I wrote, back in January, that the Trump Organization did not turn over all the documents requested in the House Intelligence Committee subpoena to Michael Cohen. Trump Organization withheld — from HPSCI and from Cohen — the email that shows Dmitry Peskov’s office did respond to Cohen’s request for help (as well as emails showing that he kept trying to reach Peskov’s office).

On January 20, 2016, Cohen received an email from Elena Poliakova, Peskov’s personal assistant. Writing from her personal email account, Poliakova stated that she had been trying to reach Cohen and asked that he call her on the personal number that she provided.350 Shortly after receiving Poliakova’s email, Cohen called and spoke to her for 20 minutes.

I also showed that Trump’s sworn response to a Mueller question about all this replicates the lies that Cohen told in his false statement to Congress.

I had few conversations with Mr. Cohen on this subject. As I recall, they were brief, and they were not memorable. I was not enthused about the proposal, and I do not recall any discussion of travel to Russia in connection with it. I do not remember discussing it with anyone else at the Trump Organization, although it is possible. I do not recall being aware at the time of any communications between Mr. Cohen or Felix Sater and any Russian government official regarding the Letter of Intent. In the course of preparing to respond to your questions, I have become aware that Mr. Cohen sent an email regarding the Letter of Intent to “Mr. Peskov” at a general, public email account, which should show there was no meaningful relationship with people in power in Russia. I understand those documents already have been provided to you.

[snip]

With that in mind, consider the substance of that middle paragraph. It repeats the key lies that Cohen pled guilty to in December:

  • Trump and Cohen only have a few (three) conversations about the deal rather than ten or more
  • Trump did not know of any travel plans to Russia
  • Trump didn’t discuss the project with anyone else at Trump Org, including Ivanka and Don Jr
  • Cohen’s attempt to contact Dmitry Peskov in January 2016 was via a public email address and proved unsuccessful

Compare those lies with the three main lies Cohen pled guilty to.

  • The Moscow Project ended in January 201 6 and was not discussed extensively with others in the Company.
  • COHEN never agreed to travel to Russia in connection with the Moscow Project and “never considered” asking Individual 1 to travel for the project.
  • COHEN did not recall any Russian government response or contact about the Moscow Project.

Not knowing (or caring) that his former fixer was already cooperating with Mueller, Trump repeated precisely the same lies Cohen is now in prison for, did so under oath, and refused to fix those responses when given an opportunity to.

All that’s important background for something explained in the Mueller Report: that it was Trump — not Hope Hicks (as Mark Corallo feared) — who planned to withhold the thread of emails setting up the June 9 meeting to hide that Don Jr had accepted dirt from the Russian government. In the weeks before the NYT learned of the emails, Trump repeatedly tried to insulate himself from being shown the emails and said that “just one lawyer should deal with the matter” to prevent them from leaking.

According to Hicks, Kushner said that he wanted to fill the President in on something that had been discovered in the documents he was to provide to the congressional committees involving a meeting with him, Manafort, and Trump Jr.678 Kushner brought a folder of documents to the meeting and tried to show them to the President, but the President stopped Kushner and said he did not want to know about it, shutting the conversation down.679

On June 28, 2017, Hicks viewed the emails at Kushner’s attorney’s office.680 She recalled being shocked by the emails because they looked “really bad.”681 The next day, Hicks spoke privately with the President to mention her concern about the emails, which she understood were soon going to be shared with Congress.682 The President seemed upset because too many people knew about the emails and he told Hicks that just one lawyer should deal with the matter.683 The President indicated that he did not think the emails would leak, but said they would leak if everyone had access to them.684

Later that day, Hicks, Kushner, and Ivanka Trump went together to talk to the President.685 Hicks recalled that Kushner told the President the June 9 meeting was not a big deal and was about Russian adoption, but that emails existed setting up the meeting.686 Hicks said she wanted to get in front of the story and have Trump Jr. release the emails as part of an interview with “softball questions.”687 The President said he did not want to know about it and they should not go to the press.688 Hicks warned the President that the emails were “really bad” and the story would be “massive” when it broke, but the President was insistent that he did not want to talk about it and said he did not want details.689 Hicks recalled that the President asked Kushner when his document production was due. 690 Kushner responded that it would be a couple of weeks and the President said, “then leave it alone.”691 Hicks also recalled that the President said Kushner’s attorney should give the emails to whomever he needed to give them to, but the President did not think they would be leaked to the press.692 Raffel later heard from Hicks that the President had directed the group not to be proactive in disclosing the emails because the President believed they would not leak.693

When the NYT reached out to the White House for the story, Trump uncharacteristically told Hicks not to comment for the story.

On July 7, 2017, while the President was overseas, Hicks and Raffel learned that the New York Times was working on a story about the June 9 meeting.695 The next day, Hicks told the President about the story and he directed her not to comment.696 Hicks thought the President’s reaction was odd because he usually considered not responding to the press to be the ultimate sin.697

Then, when Trump, who was with Hicks, was chewing Mark Corallo out for the counter-statement he released, Hicks, “channel[ed] the President” by saying that the email would never get out.

The next day, July 9, 2017, Hicks and the President called Corallo together and the President criticized Corallo for the statement he had released.721 Corallo told the President the statement had been authorized and further observed that Trump Jr. ‘s statement was inaccurate and that a document existed that would contradict it.722 Corallo said that he purposely used the term “document” to refer to the emails setting up the June 9 meeting because he did not know what the President knew about the emails.723 Corallo recalled that when he referred to the “document” on the call with the President, Hicks responded that only a few people had access to it and said “it will never get out.”724 Corallo took contemporaneous notes of the call that say: “Also mention existence of doc. Hope says ‘ only a few people have it. It will never get out.”‘725 Hicks later told investigators that she had no memory of making that comment and had always believed the emails would eventually be leaked, but she might have been channeling the President on the phone call because it was clear to her throughout her conversations with the President that he did not think the emails would leak.726

In the period when the Joint Defense Agreement was trying to respond to Congressional requests for documents on Trump’s ties to Russia, the President’s response was to argue that “just one lawyer should deal with the matter” to ensure that the emails did not get out.

That lawyer is Alan Garten.

We know that because in Cohen’s March 6 testimony to the House Intelligence Committee, he described that Alan Garten and Alan Futerfas were in charge of document collection for the Trump Organization.

THE CHAIRMAN: A number of those emails were never turned over to our committee in the document production. Do you know who was responsible for the document production and who would have withheld those documents from this committee?

MR. COHEN: Alan Futerfas and Alan Garten.

More specifically, Cohen’s February 28 testimony to the House Intelligence Committee, he described a meeting he had with Garten on document production. He was telling the story to explain that at the meeting, Garten told Cohen enough for him to figure out that Trump was the one who drafted the false statement on the June 9 meeting.

THE CHAIRMAN: You mentioned a meeting also with Alan Garten?

MR. COHEN: Yes, sir.

THE CHAIRMAN: And can you tell us who that is?

MR. COHEN: Alan Garten is now general counsel at The Trump Organization, And prior to that, he was assistant general counsel.

THE CHAIRMAN: You referenced that in the context of this also raised your suspicion of collusion. What in particular were you referring to?

MR. COHEN: My conversation with Alan Garten was in regard to, I believe, this committee’s subpoena where they wanted all of my contacts from the Trump Org server. And in order to limit the amount, because there were about 10,000, he brought to me a stack of pages and wanted me to go through each one of those email addresses to the best of my ability to mark off which ones were family, which ones were friends, which ones related to Trump Org business, which ones were just solicitations, Google alerts, et cetera. We started to engage in conversation, because at the time the news cycle was all over the allegation that the conversation going back and forth was about adoption. And I said, well, what’s going on? Tell me what happened. So he told me that he was with Don Jr. and that they were communicating back and forth with Air Force One. And he goes, you know how it gets, back and forth and back and forth. He goes, it was such a process. That was the conversation with Alan Garten.

THE CHAIRMAN: And tell me what raised your suspicion about that conversation.

MR. COHEN: lt was about how to describe the meeting, the Trump Tower meeting, as to whether it was about obtaining dirt on Hillary Clinton or it was about adoption. And what he expressed to me is that, you know, Mr. Trump drafted the first round, and it came to Don and him, and then they sent it back, and back and forth.

THE CHAIRMAN: So what he described to you was Mr. Trump’s participation in the creation of a false statement about what took place in that meeting?

MR. COHEN: Yes, that’s how he described it. Well, that’s how I understood it.

But the point of the meeting was to begin the document response process from Trump Organization that resulted in the most damning emails — emails that would prove false the story Cohen and the Trump family lawyers planned to tell about the Trump Tower Moscow deal — being withheld.

In the March 6 one, Adam Schiff got Cohen to repeat that the reason he and Garten were having this conversation in the first place is because Garten was pulling documents to reply to Congressional requests.

Q Well, let me ask it a different way. What was the purpose of him showing you your contacts and other documents?

A The Trump Organization received a subpoena in order to turn over documents, and since I had no documents, everything being in their custody and control, they wanted the contacts to be limited to, I suspect, non-business-related, you know, removal, family removal emails that are not pertaining to the investigation.

Q So the purpose of the meeting was to discuss a document production that The Trump Organization needed to provide?

A Correct.

Q And was it to provide to this committee?

A I don’t know which committee, but I suspect it was all the committees.

Q All right. And do you recall that the false statement that Don Jr. issued about the Trump Tower meeting that was discussed on Air Force One, do you recall that happened in approximately June of 2017?

A I believe so.

Garten was with Don Jr in person as they worked back and forth with Hope Hicks and Donald Trump on Air Force One to draft the June 9 meeting that Trump wanted to lie about by making sure the email didn’t leak.

There were no lawyers on Air Force One. This is the conversation that, in his appearances before Congress, Don Jr successfully avoided discussing because he was with his lawyer. But no privilege should have attached to that conversation because Garten did not represent Trump personally (Trump was supposed to be walled off from Trump Organization matters), much less Hope Hicks.

In June 2017, when Donald Trump was trying to sustain a false story about the June 9 meeting by suggesting that if just one lawyer dealt with the matter, the email disproving that story would not be “leaked,” Alan Garten was ensuring that the email disproving Michael Cohen’s false story did not get turned over to Congress.

That’s why Trump thought he’d get away with the lie. Because he almost got away with it on the Trump Tower Moscow story.

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. 

Michael Cohen’s HPSCI Testimony Proves Trump Lied in his Answers to Mueller

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Yesterday, the House Intelligence Committee released transcripts of Michael Cohen’s February 28 and March 6 testimony before the committee. Together they’re utterly damning for a bunch of reasons:

  • GOPers (with former US Attorney John Ratcliffe incompetently replacing Trey Gowdy as their designated “adult”) thought they could prove that Cohen hadn’t been offered a pardon, but proved the opposite; on top of looking like blithering idiots, it basically put them in the position of laying out proof of — then shrugging away — crime after Trump crime
  • As I anticipated at the time, Cohen makes clear that any Joint Defense Agreement involving him lasted only so long as Trump believed Cohen could hurt him
  • On top of providing details about the editing of his false statement, Cohen lays out how in conversations before the first draft, Jay Sekulow got him to shorten the timeframe of the Moscow Trump Tower deal
  • Cohen confirmed that — as I laid out in January — there was a gap in the documents shared with HPSCI necessary to sustain the false story

Perhaps most surprising, though, Cohen’s testimony establishes that Trump lied to Robert Mueller in his sworn answers.

Trump’s responses on Trump Tower questions were the least responsive of his many non-responsive answers

Far too little attention has been focused on Trump’s downright contemptuous responses to Mueller’s questions, many of which conflict with the testimony of numerous loyal Trump people. Worst of all were Trump’s response to seven questions on the Trump Tower deal.

a. In October 2015, a “Letter of Intent,” a copy of which is attached as Exhibit B, was signed for a proposed Trump Organization project in Moscow (the “Trump Moscow project”).

i. When were you first informed of discussions about the Trump Moscow project? By whom? What were you told about the project?

ii. Did you sign the letter of intent?

b. In a statement provided to Congress, attached as Exhibit C, Michael Cohen stated: “To the best of my knowledge, Mr. Trump was never in contact with anyone about this proposal other than me on three occasions, including signing a non-binding letter of intent in 2015.” Describe all discussions you had with Mr. Cohen, or anyone else associated with the Trump Organization, about the Trump Moscow project, including who you spoke with, when, and the substance of the discussion(s).

c. Did you learn of any communications between Michael Cohen or Felix Sater and any Russian government officials, including officials in the office of Dmitry Peskov, regarding the Trump Moscow project? If so, identify who provided this info1mation to you, when, and the substance of what you learned.

d. Did you have any discussions between June 2015 and June 2016 regarding a potential trip to Russia by you and/or Michael Cohen for reasons related to the Trump Moscow project? If yes, describe who you spoke with, when, and the substance of the discussion(s).

e. Did you at any time direct or suggest that discussions about the Trump Moscow project should cease, or were you informed at any time that the project had been abandoned? If yes, describe who you spoke with, when, the substance of the discussion(s), and why that decision was made.

f. Did you have any discussions regarding what information would be provided publicly or in response to investigative inquiries about potential or actual investments or business deals the Trump Organization had in Russia, including the Trump Moscow project? If yes, describe who you spoke with, when, and the substance of the discussion(s).

g. Aside from the Trump Moscow project, did you or the Trump Organization have any other prospective or actual business interests, investments, or arrangements with Russia or any Russian interest or Russian individual during the campaign? If yes, describe the business interests, investments, or arrangements.

In response, Trump wrote three paragraphs.

Response to Question III, Parts (a) through (g)

Sometime in 2015, Michael Cohen suggested to me the possibility of a Trump Organization project in Moscow. As I recall, Mr. Cohen described this as a proposed project of a general type we have done in the past in a variety of locations. I signed the non-binding Letter of Intent attached to your questions as Exhibit B which required no equity or expenditure on our end and was consistent with our ongoing efforts to expand into significant markets around the world.

I had few conversations with Mr. Cohen on this subject. As I recall, they were brief, and they were not memorable. I was not enthused about the proposal, and I do not recall any discussion of travel to Russia in connection with it. I do not remember discussing it with anyone else at the Trump Organization, although it is possible. I do not recall being aware at the time of any communications between Mr. Cohen or Felix Sater and any Russian government official regarding the Letter of Intent. In the course of preparing to respond to your questions, I have become aware that Mr. Cohen sent an email regarding the Letter of Intent to “Mr. Peskov” at a general, public email account, which should show there was no meaningful relationship with people in power in Russia. I understand those documents already have been provided to you.

I vaguely remember press inquiries and media reporting during the campaign about whether the Trump Organization had business dealings in Russia. I may have spoken with campaign staff or Trump Organization employees regarding responses to requests for information, but I have no current recollection of any particular conversation, with whom I may have spoken, when, or the substance of any conversation. As I recall, neither I nor the Trump Organization had any projects or proposed projects in Russia during the campaign other than the Letter of Intent.

The first paragraph is factually accurate. The last paragraph is correct (as far as we know) with respect to having no other proposed projects, but is utterly non-responsive to a question about the response to investigative questions (including these ones) regarding the project, in part because Trump only agreed to answer questions pertaining to the campaign period.

The middle paragraph, however, is inconsistent with the documentary record, but consistent with the false statement that Cohen is now sitting in prison for.

After Cohen pled guilty, Mueller offered Trump a chance to correct his testimony, but he refused

Because I get into why that is, consider that, in the wake of Cohen’s plea, Trump admitted to remembering that the deal may have gone through the end of the campaign (the LOI was only withdrawn after the election) and Rudy ran his mouth admitting that the project went through November. In response, Mueller asked follow-up questions.

In light of the President’s public statements following Cohen’s guilty plea that he “decided not to do the project,” this Office again sought information from the President about whether he participated in any discussions about the project being abandoned or no longer pursued, including when he “decided not to do the project,” who he spoke to about that decision, and what motivated the decision. 1057 The Office also again asked for the timing of the President’s discussions with Cohen about Trump Tower Moscow and asked him to specify “what period of the campaign” he was involved in discussions concerning the project. 1058 In response, the President’s personal counsel declined to provide additional information from the President and stated that “the President has fully answered the questions at issue.” 1059

1057 1/23/19 Letter, Special Counsel’s Office to President’s Personal Counsel.

1058 1/23/ 19 Letter, Special Counsel’s Office to President’s Personal Counsel.

1059 2/6/ l 9 Letter, President’s Personal Counsel to Special Counsel’s Office.

On this matter, then, Trump made comments to the public after submitting his responses to Mueller that made it clear his claims to not recall these matters were false. When Mueller gave him the opportunity to fix his testimony, he refused.

Part of Trump’s response exactly replicates the lies Cohen told, in a statement prepared with the input of Jay Sekulow, to Congress

With that in mind, consider the substance of that middle paragraph. It repeats the key lies that Cohen pled guilty to in December:

  • Trump and Cohen only have a few (three) conversations about the deal rather than ten or more
  • Trump did not know of any travel plans to Russia
  • Trump didn’t discuss the project with anyone else at Trump Org, including Ivanka and Don Jr
  • Cohen’s attempt to contact Dmitry Peskov in January 2016 was via a public email address and proved unsuccessful

Compare those lies with the three main lies Cohen pled guilty to.

  • The Moscow Project ended in January 201 6 and was not discussed extensively with others in the Company.
  • COHEN never agreed to travel to Russia in connection with the Moscow Project and “never considered” asking Individual 1 to travel for the project.
  • COHEN did not recall any Russian government response or contact about the Moscow Project.

Not knowing (or caring) that his former fixer was already cooperating with Mueller, Trump repeated precisely the same lies Cohen is now in prison for, did so under oath, and refused to fix those responses when given an opportunity to.

Cohen’s testimony, however, makes these lies even more damning.

The Trump Organization withheld the documents that would have made it clear Cohen was lying from the Committees

Again, as I noted back in January, there is no way that the lies Cohen told SSCI and HPSCI would have been sustainable if the committees had gotten all the documents they asked for. Specifically, three emails referenced in Cohen’s statement of the offense could not have been turned over to the committees without them figuring out he was lying.

On or about January 14, 2016 , COHEN emailed Russian Official 1’s office asking for assistance in connection with the Moscow Project.

On or about January 16, 2016, COHEN emailed Russian Official 1’s office again , said he was trying to reach another high- level Russian official, and asked for someone who spoke English to contact him.

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

Cohen’s story (and the one Trump submitted as his sworn testimony) is that he tried emailing Dmitry Peskov’s office just once, and that via a public email address. But as Mueller describes it — citing three emails from Cohen and one response from Peskov’s assistant Elena Poliakova — he wrote one email in which he fat-fingered the address for Peskov’s email, one to the general press line, and a second to Peskov’s email. In response, Poliakova wrote back, stating, “I can’t get through to both your phones. Pls, call me.”

On January 11, 2016, Cohen emailed the office of Dmitry Peskov, the Russian government’s press secretary, indicating that he desired contact with Sergei Ivanov, Putin’s chief of staff. Cohen erroneously used the email address “[email protected]” instead of “Pr [email protected] .ru,” so the email apparently did not go through.346 On January 14, 2016, Cohen emailed a different address ([email protected]) with the following message:

Dear Mr. Peskov, Over the past few months, I have been working with a company based in Russia regarding the development of a Trump Tower-Moscow project in Moscow City. Without getting into lengthy specifics, the communication between our two sides has stalled. As this project is too important, I am hereby requesting your assistance. I respectfully request someone, preferably you; contact me so that I might discuss the specifics as well as arranging meetings with the appropriate individuals. I thank you in advance for your assistance and look forward to hearing from you soon.347

Two days later, Cohen sent an email to [email protected], repeating his request to speak with Sergei Ivanov.348 Cohen testified to Congress, and initially told the Office, that he did not recall receiving a response to this email inquiry and that he decided to terminate any further work on the Trump Moscow project as of January 2016. Cohen later admitted that these statements were false. In fact, Cohen had received (and recalled receiving) a response to his inquiry, and he continued to work on and update candidate Trump on the project through as late as June 2016.349

On January 20, 2016, Cohen received an email from Elena Poliakova, Peskov’s personal assistant. Writing from her personal email account, Poliakova stated that she had been trying to reach Cohen and asked that he call her on the personal number that she provided.350 Shortly after receiving Poliakova’s email, Cohen called and spoke to her for 20 minutes.351

346 1/11/16 Email, Cohen to [email protected] (9: 12 a.m.).

347 1/14/16 Email, Cohen to [email protected] (9:21 a.m.).

348 1/16/16 Email, Cohen to [email protected] (10:28 a.m.).

349 Cohen Information ,i,i 4, 7. Cohen’s interactions with President Trump and the President’s lawyers when preparing his congressional testimony are discussed further in Volume II. See Vol. II, Section 11.K.3, infra.

350 1/20/1 6 Email, Poliakova to Cohen (5 :57 a.m.) (“Mr. Cohen[,] I can’t get through to both your phones. Pis, call me.”).

351 Telephone records show a 20-minute call on January 20, 2016 between Cohen and the number Poliakova provided in her email. Call Records of Michael Cohen After the call, Cohen saved Poliakova’s contact information in his Trump Organization Outlook contact list. 1/20/16 Cohen Microsoft Outlook Entry (6:22 a.m.).

The Poliakova email, by itself, would prove all the claims that Cohen got no response to be false.

As Cohen explained it, since he was no longer at Trump Organization anymore, he had to rely on Trump Org lawyers (probably Alan Garten) to comply with discovery requests. That probably means Garten is responsible for withholding the emails — particularly the Poliakova one — not just from Congress, but from Cohen.

Q Now, in your February 28th interview before this committee you mentioned that Alan Futerfas and Alan Garten, the two lawyers who were tied to The Trump Organization, were responsible for the document production that you produced to the committee in response to this committee’s May of 2017 subpoena. ls that accurate?

A That’s accurate.

[snip]

Q Do you have any information about why The Trump Organization would have withheld from this committee production of the January 141h, 2016, email from you to Peskov’s office?

A I do not.

Q Same question as to the January 161h, 2016, email from you to Peskov’s office regarding Sergei lvanov?

A I also do not.

Q Same question with regards to the January 20th,2016, email from Elena Poliyakova (ph)?

A I do not

THE CHAIRMAN: Mr. Cohen, what Mr. Mitchell is asking about is you’ve testified that the members of the joint defense agreement were aware that the written testimony that you were going to give to this committee was false. Documents that would have contradicted that timeline, namely, the three that Mr. Mitchell just referenced, were not produced to this committee. ls there any insight you can shed as to who might have been involved in withholding documentary evidence that would have contradicted your written false testimony?

MR. COHEN: Again, it would be other members of the joint defense team, but specifically at The Trump Organization level.

For reasons I’ll return to, Cohen was one of the only Trump people who got subpoenaed and therefore whose document compliance would be legally binding. But that means that Trump Org failed to comply with a subpoena issued not by Adam Schiff, but by Devin Nunes.

Cohen didn’t talk about these emails with Joint Defense Agreement lawyers, but he talked about the Poliakova one (and the follow-up call) with Trump

All that’s damning enough, especially since Trump claimed to Mueller that the documents turned over to his office would match his story (this is not the only sworn response where Trump falsely claimed the documentary record matches his testimony).

All the more so, though, because Trump is the one person that Cohen spoke to at Trump Org about receiving this Poliakova email (in addition to Felix Sater, who wrote the next day to say Putin’s office had contacted him, seemingly in response).

Indeed, immediately after his call with Poliakova, Cohen talked to Trump about how well versed she was on issues that mattered for their deal.

Q At what time did you speak to anyone at The Trump Organization about this email?

A About this specific email? I did not

Q Never?

A No. Well, actually, I apologize, that’s not true, I spoke to Mr. Trump about it.

Q When was that?

A That was after I had spoken to Ms. Poliyakova (ph).

[snip]

THE CHAIRMAN: And did I hear you to say that you spoke to Mr. Trump about your conversation with Mr. Peskov’s office?

MR. COHEN: Yes, with Ms. Poliyakova (ph).

THE CHAIRMAN: And was the conversation you had with Mr. Trump about that conversation with Ms. Poliyakova (ph) in person or by phone?

MR. COHEN: lt was in person.

THE CHAIRMAN: And how soon after your conversation with her on the phone did that take place?

MR. COHEN: Right afterwards.

THE CHAIRMAN: Can you tell us about the conversation you had with Ms Poliyakova (ph)?

MR. COHEN: I just found that she was very professional and her questions regarding the project were insightful. As an assistant, I was impressed, and I just made mention to him that I had spoken to an assistant for Peskov, and I was, again, incredibly impressed with her line of questioning regarding the project. And I made mention how nice it would be to have an assistant who asked such pertinent questions.

[snip]

THE CHAIRMAN: And by the detailed nature of her questions, you could tell that they knew a great deal about the project?

MR. COHEN: Yes.

THE CHAIRMAN: And what kind of questions did she have for you about the project?

MR. COHEN: The areas that obviously we would want to be building in. I don’t want to try to recollect the specific questions, but there were just very profess — they were very professional, talking about like the size of the project, the scope, length of time, where the construction crews were going to come from. I mean, it was a pretty insightful conversation.

Even if you buy that Trump forgot this conversation and the other seven he claims to have forgotten about a deal he very much wanted, you still need to explain why his responses, which allegedly account for the documentary evidence, nevertheless repeat the story that Cohen told based on a documentary record that Trump lawyers ensured was incomplete.

Given the great lengths Trump went to to not answer any of Mueller’s questions, it would take some doing for him to tell a demonstrable lie.

But he did just that with regards to the Trump Tower meeting — and refused to fix his testimony after he made it clear, publicly, that he had lied.

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 Metadata of the HJC Requests

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While the rest of us were looking at the content of the letters the House Judiciary Committee was sending out to witnesses yesterday, @zedster was looking at the metadata. The requests have dates and times reflecting three different production days: towards end of the work day on March 1 (Friday), a slew starting just after 3PM on March 3 (Sunday), with some individualized documents between then and Sunday evening, with a ton of work being done until 1:30 AM March 4 (Monday morning), and four more trickling in after that.

I think the production dates likely reflect a number of different factors.

First, the letters are boilerplate, which may explain why most of those were done first. Three things might explain a delay on any of those letters: either a late decision to include them in the request, delayed approval by SDNY or Mueller for the request, or some difficulty finding the proper addressee for the letter (usually, but not always, the person’s counsel of record). Not all of these addresses are correct: as one example, Erik Prince reportedly has gotten a new lawyer since Victoria Toensing first represented him, but has refused to tell reporters who represents him now; his letter is addressed to Toensing.

One other possible explanation for late dates on the letters is that the decision to call them came out of Michael Cohen’s testimony last week (and some of those witnesses would have had to have been approved by SDNY as well). As an example, the last document in this set is the one to Viktor Vekelsberg, which clearly relates to Michael Cohen (though interest in him may have come out of Cohen’s HPSCI testimony).

The other two late letters are Cambridge Analytica and Donald Trump Revocable Trust. Both appear to be revisions — a third revision for the former and a second for the latter.

That said, the letters completed after March 1 are interesting: Aside from some institutional letters (like FBI and GSA), they appear to be likely subjects of ongoing investigative interest, whether because of the investigation into Trump’s inauguration, Roger Stone’s prosecution, Maria Butina’s cooperation, ongoing sensitivities relating to Paul Manafort, or the National Enquirer.

Some of these topics happen to be the last topics listed on the Schedule As (I got this from Jared Kushner’s Schedule A which is one of if not the most extensive), including WikiLeaks, Manafort’s sharing of polling data (with the Ukrainian oligarchs, but no Oleg Deripaska), Michael Cohen’s Russian-related graft, and Transition graft, including with the Gulf States. There’s no separate category of documents tied to the NRA.

The Schedule As were based off boilerplate and tailored very loosely based on the recipient; this may have been an area where prosecutors weighed in. These later approvals include a slew of Cambridge Analytica people (remember, Sam Patten, who had ties to the organization, was not included in this request at all). Alexander Nix’s Schedule A is a revision. So is Trump Organization lawyer Alan Garten’s. Some of the people central to any obstruction inquiry — Don McGahn, Jeff Sessions, former McGahn Chief of Staff Annie Donaldson, and Jay Sekulow — were among the last Schedule As printed out.

All of this is just reading tea leaves.

But it does seem to reflect some ongoing sensitivities (the Gulf States, Cambridge Analytica, and obstruction) that got approved last, with some areas (Oleg Deripaska) being significantly excluded.

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. 

How Trump “Directed” Don Jr’s June 9 “No Follow-Up” False Statement to Congress

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In the New Republic, I have a piece expanding on what I laid out in my first post on last week’s BuzzFeed story. It should not have been a big deal that BuzzFeed claimed Trump had “directed” Michael Cohen to lie, because we already had plenty of evidence that Trump had induced his top aides to lie. In it, I note an even more clear cut example of Trump scripting his aides’ lies with the June 9 meeting.

Then last June, the Times published a January 2018 letter in which Trump’s lawyers admitted to Mueller’s office that “the President dictated a short but accurate response to the New York Times article on behalf of his son, Donald Trump, Jr.” The letter tied that statement directly to Don Jr.’s testimony to Congress about the infamous Trump Tower meeting in 2016, in which Don Jr. sought to procure damaging information about Hillary Clinton from Russian agents. “His son then followed up by making a full public disclosure regarding the meeting, including his public testimony that there was nothing to the meeting and certainly no evidence of collusion.” Trump’s statement to the Times claimed there had been “no follow-up” after the June 9 meeting, and Don Jr.’s testimony to Congress sustained that claim. But the public record shows there was follow-up after the election.

And I suggest, later in the piece, that what we know happened with the June 9 meeting is probably what happened with Cohen’s Trump Tower story.

Mueller has hinted that Trump’s other subordinates were involved in just one of these lies: Cohen’s. In a filing describing how Cohen explained “the circumstances of preparing and circulating his response to the congressional inquiries,” Cohen suggested he coordinated with “White House-based staff and legal counsel to Trump.”

That’s what the public record shows happened with Cohen’s statements about the Trump Tower meeting, in which he falsely claimed there was no “follow-up.”

As I suggested, how that happened is already in the public record, in documents released by the Senate Judiciary Committee.

As early as June 3, 2017, Trump Organization lawyer Alan Garten called Rob Goldstone to find out details about the June 9, 2016 meeting, including who the Russian lawyer who attended was. On June 26, Garten contacted Goldstone again to find out about and get contact information for Ike Kaveladze. In a call with Goldstone the next day, Garten expressed “concern” because the June 9 meeting “links Don Jr. to officials from Russia, which he has already denied meeting.”

On July 8, the White House put out a Trump (and Putin) statement claiming the meeting was only about adoptions, and therefore didn’t include any topic that was a campaign  issue. As part of that statement, Trump claimed that “there was no follow-up.”

It was a short introductory meeting. I asked Jared and Paul to stop by. We primarily discussed a program about the adoption of Russian children that was active and popular with American families years ago and was since ended by the Russian government, but it was not a campaign issue at that time and there was no follow up. I was asked to attend the meeting by an acquaintance, but was not told the name of the person I would be meeting with beforehand. [my emphasis]

On July 9, Don Jr put out his own statement, admitting that Goldstone had also offered dirt and that Magnitsky sanctions were discussed, but repeating that “no follow-up” line (as well as telling some other lies).

I was asked to have a meeting by an acquaintance I knew from the 2013 Miss Universe pageant with an individual who I was told might have information helpful to the campaign. I was not told her name prior to the meeting. I asked Jared and Paul to attend, but told them nothing of the substance. We had a meeting in June 2016. After pleasantries were exchanged, the woman stated that she had information that individuals connected to Russia were funding the Democratic National Committee and supporting Ms. Clinton. Her statements were vague, ambiguous and made no sense. No details or supporting information was provided or even offered. It quickly became clear that she had no meaningful information. She then changed subjects and began discussing the adoption of Russian children and mentioned the Magnitsky Act. It became clear to me that this was the true agenda all along and that the claims of potentially helpful information were a pretext for the meeting. I interrupted and advised her that my father was not an elected official, but rather a private citizen, and that her comments and concerns were better addressed if and when he held public office. The meeting lasted approximately 20 to 30 minutes. As it ended, my acquaintance apologized for taking up our time. That was the end of it and there was no further contact or follow-up of any kind. My father knew nothing of the meeting or these events. [my emphasis]

That’s when Goldstone — who had been on a cruise in Europe and so out of the loop — got angry that, after having asked for advance warning a week earlier, was now fielding calls from the press without first knowing what Trump had put out.

I had requested last week of you guys to see what was being put out, so I could be able to prepare our own statement but never received anything from you or your colleague. Can I please at least now see the statement you guys put out.

Goldstone wanted that statement, he explained to SJC, so he could match what Trump put out. “I just felt it would be useful if I knew what they had put out, the style, the type.” He wasn’t so much looking to coordinate; he was just trying to message effectively. “This — this  was area was really alien to me. I’m a music publicist. We talk about ego and nonsense. I’m not used to this kind of structured world.”

Then, on July 10, both Alan Futerfas and Alan Garten sent Goldstone a statement they wanted him to put out under his own name. It included the claim that there had been no follow-up.

As the person who arranged the meeting, I can definitely state that the statements I have read by Donald Trump Jr. are 100 percent accurate. The meeting was a complete waste of time, and Don was never told Ms. Veselnitskaya’s name prior to the meeting. Ms. Veselnitskaya mostly talked about the Magnitsky Act and Russian adoption laws, and the meeting lasted 20 to 30 minutes at most. There was never any follow-up and nothing ever came of the meeting. [my emphasis]

Goldstone told SJC he thought the “ludicrous” because it sounded nothing like him, and so kept trying to put out his own statement.

But (as SJC made clear in questions about the statement) the two Trump Organization Alans, who had been chasing down what happened at this meeting for over a month by the time they drafted a statement for Goldstone, had to have known that the statement they wanted Goldstone to adopt was partly incorrect (in spite of their exhortations that any statement be accurate). That’s because they would already have reviewed an email Goldstone sent to Rhonna Graff the previous fall.

On November 28, after ten days of efforts to set up another meeting for Veselnitskaya after the election and on directions that almost certainly had to have come from Don Jr, Goldstone sent Veselnitskaya’s latest statement on sanctions to Trump’s Assistant, Rhona Graff. On July 15, 2017, after Trump and Don Jr had already issued statements claiming there had been no follow-up to the meeting — and after Trump’s lawyers tried to get Goldstone to say that publicly, too — Graff forwarded Goldstone’s email back to show that there had, in fact, been follow-up.

Nevertheless, almost two months after Graff identified this proof of follow-up (there are also some calls between Don Jr and Goldstone that are in some ways even more damning, though Goldstone disclaims them), Don Jr continued to hew to the family line that there had not been follow-up.

Even in response to a direct question about it, Don Jr insisted there had been no follow-up,

Q. There was, in your view, no follow-up at all from this meeting?

A . Correct.

So Trump dictated a statement (and the lawyers tried to massage it even while leaving a number of lies in the statement), his son repeated it, his lawyers tried to get Goldstone to repeat it, even while they had clear documentary evidence it was not true.

And then Don Jr repeated that lie — there was no follow-up at all from this meeting — in September 2017, sustaining the lie his father first told, only this time to Congress, where it counts as a criminal false statement.

Last week, people on both sides of the aisle treated the BuzzFeed story as the first evidence that Trump had suborned false statements. It’s not. We’ve seen how he does so in very detailed form already.

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 House Intelligence Committee Can and Should Subpoena the 18-Minute Gap on the Trump Tower Deal

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Over the last few days the following happened:

  • Buzzfeed published a story stating what the evidence already shows: Trump suborned perjury
  • Mueller’s spox Peter Carr issued an unprecedented rebuttal to a specific story
  • WaPo, in a story presenting DOJ’s side of events, revealed that someone from Rod Rosenstein’s office (probably Ed O’Callaghan, who has managed most interactions with Mueller’s office) called to ask them if they were going to issue such a statement

I am not certain whether the call from Rosenstein’s office violated Special Counsel regulations protecting the Special Counsel from day-to-day interference in the office, but it certainly is something Jerry Nadler’s committee should inquire about.

And while I think Mueller’s office can make a very good case they needed to respond to Buzzfeed’s story for prosecutorial reasons, Rosenstein’s involvement seems far more suspect, particularly since he’s the guy who set the new DOJ standard that even warning a journalist off a story, as former FBI General Counsel Jim Baker did, may get you disciplined or referred for prosecution. By all appearances, Peter Carr was playing by Rosenstein’s rules in his interactions with Buzzfeed, so Rosenstein is the last person who should weigh in if he doesn’t like the outcome.

But — in addition to House Judiciary Committee (HJC) asking DOJ about contacts between Rosenstein’s office and Mueller’s, as well as contacts between Big Dick Toilet Salesman Matt Whitaker and Rosenstein and contacts between the White House and either one — Congress has a means of pursuing this question that should not harm Mueller’s investigation: Subpoena the information that Cohen, Felix Sater, the Trump Organization, and the campaign withheld from the House Intelligence Committee so as to sustain Cohen’s false testimony through March 22, 2018.

I’ve put the section of the House Intelligence Report that deals with the Trump Tower deal below, with the claims we now know to be false underlined. In addition to a caveat that the findings in the section are based on the documents turned over to the committee, the section includes the following claims we now know to be false given Cohen’s statement of the offense and/or Buzzfeeed’s extensive report on the deal:

  • The report claims the deal died in January but communications (which may or may not be limited to text messages) between Sater and Cohen show that it continued (at least) through June and Buzzfeed suggests the communications extended into July. Rudy Giuliani today stated publicly it may have gone through November.
  • The report claims Cohen was working with Sater’s company, which may or may not be true. But Buzzfeed makes it clear there should be an October 2015 email between Sater and Cohen — sent weeks before Trump signed the Letter of Intent — showing that VTB, a sanctioned bank, would provide financing. A December 19, 2015 communication (it’s unclear whether email or text) would have showed VTB would host Cohen. On December 31, 2015, Sater sent an image showing another sanctioned bank, GenBank, would instead provide financing. There would also be a letter dated late January from Andrey Ryabinskiy, a Russian mortgage tycoon.
  • The report claims Cohen never received a response from anyone associated with the Russian government. But Cohen received a January 20, 2016 email from Dmitry Peskov’s personal assistant, and his call records would reflect a 20 minute call to the number she provided him to call her on.
  • Sater claimed to HPSCI that his claims about Putin’s involvement was “mere puffery” and that “neither President Putin nor any element of the Russian government was actually directly involved in the project.” Yet on January 21, Sater wrote Cohen, “It’s about [Putin] they called today,” which would show still more response to Cohen from the Russian government. And a May 5 text message from Sater to Cohen conveyed Dmitry Peskov’s invitation to attend the St. Petersburg Forum, at which Cohen could discuss the deal with Peskov and he might meet Putin personally.
  • The report says the deal failed because the due diligence failed and  Trump Organization’s representative (it’s unclear whether this would be Cohen, Sater, or someone else) lost confidence in the licensee. That’s almost certainly not consistent with whatever reason Cohen gave Sater on June 14, three hours after WaPo reported that Russia had hacked the DNC, to say he would not be traveling to St. Petersburg after all. There may well be discussion of the WaPo report in the four texts Sater sent Cohen. There also may be communication reflecting Cohen’s assurances that “We’ll go after Cleveland.”
  • The report says the potential licensing deal was not related to the campaign but Cohen, “asked a senior campaign official about potential business travel to Russia.” It’s unclear whether there’s a paper trail of that or not. But there are communications reflecting Cohen’s consideration of other campaign events — definitely the Convention and probably the WaPo report on the DNC hack. And there should be communications showing it go through November, only to be halted — or rather, moved under Segei Millian and George Papadopoulos — once Trump got elected.

While it’s possible the House Intelligence Committee (HPSCI) received the 2015 communications indicating that Trump contemplated working with sanctioned banks during the time he was running for President (in which case it would be scandalous that the Republicans suppressed that detail, and the one that a former GRU officer was involved), much of the rest of these communications could not have been turned over to HPSCI when they requested documents in 2017. While some of the communications are limited to texts between Sater and Cohen, at least some of this paper trail (including Cohen’s meetings with Trump and Don Jr about it) would either reside at the campaign or Trump Organization (or both).

Remember, when SDNY got a warrant — one naming “many” thus far uncharged people — to raid Michael Cohen a month after subpoenaing Trump Organization, they explained there was a concern that documents would get destroyed.

One of the filings on Cohen (I’m still trying to chase down this reference) suggests Mueller had to get his communications on this matter from someone else. It seems likely Mueller had to get the text messages from Sater’s phone (or perhaps even from forensics on Cohen’s own phone).

Nevertheless, the public record identifies an abundant paper trail that should have been turned over to HPSCI, Senate Intelligence Committee (SSCI), and Senate Judiciary Committee (SJC), but could not have been, given what HPSCI reported last March. Additionally, Don Jr’s testimony to HPSCI is necessarily inconsistent with his SJC, yet still appears to include false claims about the Trump Tower deal (though some got cleaned up between his September testimony to SJC and his December testimony to HPSCI).

While Cohen was initially formally subpoenaed (though possibly only for Steele dossier documents), Trump Organization, Felix Sater, and the campaign were not.

Adam Schiff’s committee can make an important first step to clear up questions about the degree to which Trump only tacitly permitted Cohen, Sater, and his spawn to lie to Congress, or whether — as was the case with the June 9 response — his lawyers worked directly with witnesses to craft a false message to the public and Congress. If the June 9 response is any indication, there should be communications directly between Alan Futerfas or Garten with Cohen as he crafted his false story, which would go a long way to showing that their ultimate client suborned perjury.

Rosenstein’s intervention with Mueller’s office regarding Friday’s statement suggests that he, the Big Dick Toilet Salesman, or their boss, may be trying to tamp down discussions about Trump participating in Cohen’s lies. But because the discovery to HPSCI was so obviously incomplete, that committee has an available significant first step that could answer that question themselves, with little opportunity for DOJ to prevent that (and, given that the documents have already been identified in Buzzfeed’s story already, probably little risk of damaging the Mueller investigation in the way that further Cohen testimony might).

It may not be the kind of showboat witness testimony Schiff seems most interested in right now. But he has the ability to demand all the documents that show what details Cohen, Sater, and the President’s company and campaign knew to withhold to sustain Cohen’s lies. That — and a request for any communications about this matter, both in 2017 and in the wake of last year’s raid on Cohen — would go a long way towards answering a question that only Congress can deal with anyway: the degree to which Donald Trump orchestrated his lawyers’ lies about his ongoing business negotiations with Russia while Russia was helping him get elected.

House Intelligence Report

In approximately September 2015, he received a separate proposal for Trump Tower Moscow from a businessman named [Sater] According to Cohen, the concept of the project was that “[t]he Trump Organization would lend its name and management skills, but It was not going to borrow any money and it would not have any resulting debt for the purchase of the land and the building of the facility.”;~ Cohen worked on this idea with [Sater] and his company, the Bayrock Group, a real estate consultancy that had previously worked with the Trump Organization.

[gratuitous paragraph on what a colorful fellow Sater is]

(U) After signing a letter of intent with a local developer in October 2015,36 Cohen and [Sater] exchanged a number of emails and text messages in late 2015 detailing their attempts to move the project forward. For instance, in December 2015, [Sater] tried to get Cohen and candidate Trump to travel to Russia to work on the project.

(U) Several of [Sater’s] communications with Cohen involved an attempt to broker a meeting or other ties between candidate Trump and President Putin, and purported to convey Russian government interest in the project. Perhaps most notably, [Sater] told Cohen in a November 3, 2015, email, “[b]uddy our boy can become President of the USA and we can engineer it.” 39 [Sater] continued that if “Putin gets on stage with Donald for a ribbon cutting for Trump Moscow, . .. Donald owns the republican nomination.” 10 This assertion apparently arose from [Sater’s] rather grandiose theory that cementing a deal with a hostile U.S. adversary would increase candidate Trump’s foreign policy bona fides.41

(U) Sater testified that his communications with Cohen regarding President Putin were ”mere puffery,” designed to elicit a response from the · Trump Organization to move the project along.42 [Sater] explained that “[u]ntil the bank writes the check, it’s all salesmanship and promotion to try to get many, many, many parties towards the center to try to get the deal done.” 43 Cohen similarly characterized [Sater] as “a salesman” who “uses very colorful language.”44

(U) When the project started proceeding too slowly for the Trump Organization,45 Cohen and [Sater] began to exchange acrimonious text messages. 46 As part of those text messages [Sater] told Cohen that President Putin’s people were backing the deal, including “this is thru Putins [sic] administration, and nothing gets done there without approval from the top,” as well as meetings in Russia with “Ministers” and “Putins [sic] top administration people.”] [Sater] also mentioned Dmitry Peskov (President Putin’s spokesman) would “most likely” be included. 48

(U) Cohen thus attempted to reach out to members of the Russian government in an attempt to make the project proceed, but apparently did not have any direct points of contact. for example, Cohen sent an email to a general press mailbox at the Kremlin in an effort to reach Peskov.49 Cohen’s message notes that he has been working with a local partner to build a Trump Tower in Moscow and that communications have stalled with the local partner.50 The email further seeks contact with Peskov so they may ” discuss the specifics as well as arrang[e] meetings with the appropriate individuals.”51 Based on the documents produced to the Committee, it does not appear Cohen ever received a response from anyone affiliated with the Russian government.

(U) [Sater’s] testimony likewise made clear that neither President Putin nor any element of the Russian government was actually directly involved in the project. For instance, in one exchange, [Sater] testified he was offering the Trump Organization access to one of his acquaintances. This acquaintance was an acquaintance of someone else who is “partners on a real estate development with a friend of Putin’s.” 52

[Sater] testified that he was unaware of “any direct meetings with any [Russian] government officials” in connection with the Trump Tower Moscow project.53 In addition, neither candidate Trump nor Cohen traveled to Russia in support of the deal.54

[U] It appears the Trump Tower Moscow project failed in January 2016.57 Trump Jr. testified that, as of early June 2016, he believed the Trump Tower Moscow project was dormant.53 The project failed because “[t]he due diligence did not come through” and the Trump Organization’s representative “lost confidence in the licensee, and [he] abandoned the project.”59 In fact, the Trump Organization did not have a confirmed site, so the deal never reached the point where the company was discussing financing arrangements for the project.60 The Committee determined that the Trump Tower Moscow project did not progress beyond an early developmental phase, and that this potential licensing deal was not related to the Trump campaign.61

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.