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Dear Editors: Stop Trying to Predict the Mueller Report

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Darren Samuelsohn, who gets credit for one of the most important courthouse scoops of the Mueller investigation — the challenge of a Mueller subpoena by a foreign-owned corporation — wrote a piece laying out, “The week that could reveal Mueller’s end-game.” It relies heavily on analysis from Matt Miller, who was among those people saying not just that Mueller was substantially done three weeks ago (apparently true) but that he would issue his report (didn’t happen as predicted). He also quotes Ty Cobb promising Mueller will finish by mid-March, which is something like 16 months after he first predicted the end date.

Yet Samuelsohn’s piece doesn’t mention his own Mystery Appellant scoop, which is currently scheduled for discussion on SCOTUS’ March 22 conference (and would take some time to coerce compliance after that), at all. This appears to be a case where a foreign owned corporation is shielding the potentially criminal behavior of an American citizen by claiming only the President can coerce it to comply, the kind of appellate question that might rival the one decided in US v. Nixon. Solicitor General Noel Francisco’s role in the defense of the subpoena seems to indicate the high stakes of this challenge. Yet even Samuelsohn seems ready to believe that the resolution of this challenge won’t hold up the end game of the Mueller investigation.

Samulesohn also doesn’t mention Andrew Miller’s challenge to a Mueller subpoena. He lost his challenge in the DC Circuit on February 26, but depending on whether this challenge is treated as a criminal or civil one, he still has time to ask for an en banc reconsideration. In the wake of Roger Stone’s indictment, Mueller’s team told Miller’s lawyer they still need his client’s testimony, apparently for other charges. Admittedly, that could just involve a superseding indictment for Stone down the road — which might explain why Mueller was looking for 8 months before trial — but it’s a loose end that won’t be tied anytime soon (unless Miller quietly complied without anyone noticing).

Even among the details that Samuelsohn lays out (status reports in Flynn and Gates, a gag review and status hearing in Stone’s case, and sentencing for Manafort), he misses a really intriguing one. In the wake of Mueller’s clarification regarding the circumstances behind the printing of polling data on August 2, 2016 and which oligarchs that got that data are Russian (a clarification that made it clear they reinterviewed Rick Gates just a month ago), Manafort submitted a sealed motion (docket 538) for Amy Berman Jackson to reconsider her breach determination.

In a minute order filed last Monday, she approved the filing of that motion under seal, but ordered Manafort’s lawyers and Mueller’s to get together to agree on a set of redactions to release that motion. While there have been several sealed motions submitted since then, we don’t yet have that motion for reconsideration.

Manafort’s lawyers have been working hard to publicly reveal details — spun using any of a variety of changing cover stories — about that August 2 meeting since last summer. They’ve already lost a bid to unseal more details of this dispute from one of the past hearings, and they may have lost a dispute here (or it may something that will be aired in Wednesday’s sentencing hearing).

It’s interesting not just that Manafort’s lawyers, in their relentless bid to perform as the guy holding the pardon pen most wants them to perform, are still trying to explain away why Trump’s campaign manager provided data to be shared with Russia at the same meeting he discussed what amounts to relief from the Ukraine related sanctions. But even as Kevin Downing tries yet again to offer a cover story, Mueller appears to be successfully hiding the full details of this incident.

If they’re done, there’s no reason to hide these details, yet ABJ seems to agree they do have reason to hide them.

It is at once possible — likely even! — that the bulk of the investigative work is done (allowing Mueller’s lead Agent to be put in charge of the Richmond FBI Office), but that there are remaining threads that Mueller needs for his final “report.” It’s even possible that everyone misunderstands what form that final report will take.

But thus far no editor has produced a story that adequately describes the signs of a nearing end that adequately accounts for the number of known loose ends that will take some weeks to be tied.

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 Trajectories: Sleazy Influence Peddler Paul Manafort and Foreign Agent Prosecutor Brandon Van Grack

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Like many, while I expected TS Ellis to give Paul Manafort a light sentence, I’m shocked by just how light it was.

Ellis gave Manafort 47 months of prison time for crimes that the sentencing guidelines say should start at a 19 year sentence. Even if Amy Berman Jackson gives Manafort the stiffest sentence she can give him — 10 years — and makes it consecutive, he’ll still be facing less than the what sentencing guidelines recommend. Ellis even declined to fine Manafort beyond the $24 million he’ll have to pay in restitution (Zoe Tillman lays out the money issues here).

There are a number of reasons to be outraged by this.

Ellis explicitly suggested that Manafort’s crimes were less serious than similar organized crime that people of color would commit. In the wake of this sentence, any number of people (especially defense attorneys) have pointed to non-violent criminals facing more prison time than Manafort. That said, I agree with those who suggest we should aim to bring those other sentences down in line with what the civilized world imposes, and not instead bump white collar criminals up to the barbaric levels that come out of the drug war.

Ellis gave this sentence even though Manafort expressed no remorse. Ellis commented that “I was surprised that I did not hear you express regret for engaging in wrongful conduct. In other words, you didn’t say, ‘I really, really regret not doing what the law requires,'” but nevertheless sentenced him as if he had.

Perhaps most infuriating were the backflips Ellis did to spin Paul Manafort as a good man. He emphasized that Manafort was “not before the court for any allegation that he or anybody at his direction colluded with the Russian government to influence the 2016 presidential election,” which is true; but Ellis received the breach determination materials showing that at a time when Manafort was purportedly cooperating, he instead lied about sharing polling data with a suspected Russian asset while discussing a Ukrainian peace deal that he knew amounted to sanctions relief, a quid pro quo. Because those materials go to the issue of whether Manafort took responsibility and was a risk for recidivism, they were fair game for consideration, but Ellis didn’t consider them.

Indeed, because of time served, Ellis effectively sentenced Manafort to an equivalent sentence that Michael Cohen faces having committed an order of magnitude less financial fraud, pled guilty, and provided limited cooperation to the government. Effectively, then, Ellis has sanctioned Manafort’s successful effort to avoid cooperating in the case in chief, on how he and Trump conspired with Russia to exploit our democratic process.

Instead of referring to the materials on Manafort’s refusal to cooperate, Ellis instead just regurgitated defense materials and claimed that aside from stealing millions of dollars from taxpayers and whatever else went on before Amy Berman Jackson, Manafort had “lived an otherwise blameless life.”

And that’s where I step away from a generalized discussion of the barbaric nature of our criminal justice system to look specifically at the barbaric nature of what Paul Manafort has done with his life. I feel much the way Franklin Foer does.

In an otherwise blameless life, Paul Manafort lobbied on behalf of the tobacco industry and wangled millions in tax breaks for corporations.

In an otherwise blameless life, he helped Philippine President Ferdinand Marcos bolster his image in Washington after he assassinated his primary political opponent.

In an otherwise blameless life, he worked to keep arms flowing to the Angolan generalissimo Jonas Savimbi, a monstrous leader bankrolled by the apartheid government in South Africa. While Manafort helped portray his client as an anti-communist “freedom fighter,” Savimbi’s army planted millions of land mines in peasant fields, resulting in 15,000 amputees.

[snip]

In an otherwise blameless life, he spent a decade as the chief political adviser to a clique of former gangsters in Ukraine. This clique hoped to capture control of the state so that it could enrich itself with government contracts and privatization agreements. This was a group closely allied with the Kremlin, and Manafort masterminded its rise to power—thereby enabling Ukraine’s slide into Vladimir Putin’s orbit.

[snip]

In an otherwise blameless life, he produced a public-relations campaign to convince Washington that Ukrainian President Viktor Yanukovych was acting within his democratic rights and duties when he imprisoned his most compelling rival for power.

In an otherwise blameless life, he stood mute as Yanukovych’s police killed 130 protesters in the Maidan.

Paul Manafort invented the profession of sleazy influence peddler. His own daughter once acknowledged, “Don’t fool yourself. That money we have is blood money.” And our democracy, as well as more corrupt regimes around the globe where Manafort was happy to work, are much less just because of Manafort’s life’s work.

Which is why I take more solace in something that happened the night before Manafort’s sentencing: A CNN report that DOJ has put Brandon Van Grack — a prosecutor who, under Mueller, prosecuted Mike Flynn and his sleazy influence peddler business partners — in charge of a renewed effort to crack down on unregistered sleazy influence peddlers.

The initiative at the Justice Department to pursue violations of the Foreign Agents Registration Act, which requires that an entity representing a foreign political party or government file public reports detailing the relationship, will be overseen by Brandon Van Grack, who left Mueller’s team in recent months to rejoin the national security division.

Van Grack’s appointment to the newly created position and the Justice Department’s interest in expanding its pursuit of foreign influence cases stemmed largely from the impact of Russian operations on the 2016 presidential election, John Demers, the head of the national security division, said Wednesday at a conference on white-collar crime.

With Van Grack’s new role, the Justice Department will shift “from treating FARA as an administrative obligation and regulatory obligation to one that is increasingly an enforcement priority,” Demers said.

He also pointed to the impact of a recent settlement with one of the country’s highest-profile law firms — Skadden, Arps, Slate, Meagher & Flom LLP — on the department’s decision to escalate its enforcement in that area.

[snip]

Demers added that the Justice Department is considering seeking congressional authorization for administrative subpoena power to enforce the Foreign Agents Registration Act, which it currently lacks.

“That’s something that we’re taking a hard look at,” he said. Referencing Skadden, he added: “Do I think the firm would have behaved differently if they had received a subpoena versus they had just received a letter? Yes.”

This marks a decision to treat FARA violations — sleazy influence peddling that hides the ultimate foreign customer — as a real risk to our country. As I have laid out in my comparison of Manafort’s “otherwise blameless life” and Maria Butina’s efforts to infiltrate right wing politics, a venal insider with an already rich political network will be far more effective (and insidious) than even a beautiful woman backed by a mobbed up foreign government official and abetted by her own washed out Republican insider.

I don’t know what Mueller is doing with all the evidence of a conspiracy that he continues to protect. I don’t know that he’ll be able to deliver a prosecutorial conclusion that will deliver justice for the sleazy things that Trump did to win the election. Prosecuting very powerful people is very difficult, and we shouldn’t forget that.

But one other point of this entire investigative process was to learn lessons, to make it harder for hostile outsiders to hijack our democratic process going forward.

In letting Manafort off with a metaphorical wrist-slap, TS Ellis did nothing to deter others who, like Manafort, will sell out our country for an ostrich skin jacket. Even ABJ will face some difficult challenges in DC when she tries to sentence FARA crimes (particularly those of Sam Patten, who cooperated) without precedents to do so.

But the way to build those precedents — the way to establish a record that causes a Skadden Arps or a Rob Kelner to treat FARA registration as the official declaration to the government that it is — is to pursue more of these cases, against sleazy influence peddlers working for all foreign entities, not just the ones we despise.

So Manafort may get off easy for helping Russia interfere in our election in a bid to line up his next gig white-washing brutal oligarchs.

But along the way, our justice system may be adapting to the certainty that he did not live an otherwise blameless life

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. 

On the Exonerating Information Rick Gates Just Provided

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Yesterday, the government submitted a notice clarifying the record on the Paul Manafort breach determination. The bulk of the filing describes that, after reading about the dispute in public reporting on the topic, Rick Gates provided additional information on the topic that may corroborate part of Manafort’s story.

The new Gates information necessarily pertains to the sharing of polling data. That’s clearly true because it discusses all the same evidence the government used to substantiate Manafort’s lies about the polling data:

  • Multiple Rick Gates 302s
  • Some other fact about August 2, perhaps the clandestine nature of the meeting
  • Kilimnik emails discussing the polling data (I now realize that the government’s declaration makes it clear they have 8 emails referencing the polling data)
  • A Paul Manafort email telling Gates to print out the polling data, with the polling data attached

Here’s where that evidence shows up in the filing:

In addition, that passage cites paragraphs of the declaration, ¶55 and ¶56, that by structure necessarily deals with the sharing of poll data.

At first, I thought Gates’ new information corroborated the NYT story about Manafort sharing data with Kilimnik twice, once in May and once in August. But I now lean towards the new information corroborating Manafort’s story that he asked Gates to print out that data for a campaign meeting that day.

I say that in part because the order in which the corroboration was treated, with Manafort’s email coming last. In addition, this passage seems to reflect Gates using the poll data to prepare for a meeting.

As to this passage, I suspect it clarifies that just one of the oligarchs that Manafort intended to receive the data was Russian — Oleg Deripaska — and that (as Andrew Weissmann appeared to say at one point) the other recipients were his Ukrainian paymasters.

The transcript appears to have been corrected on that point. If that is the only change, it wouldn’t really change the key fact that Manafort shared data with a guy who was a central player in the election year conspiracy.

ABJ hasn’t demanded any additional briefing on this topic, so she may agree with the government that the issue of the email doesn’t otherwise change her ruling. As the government notes, Gates’ self-correction makes him more credible, and suggests the story he is telling — which appears to sustain the same explanation for the August 2 meeting — is as helpful to Manafort as possible, which is not at all.

Update: In her minute order on this (doing nothing about the breach determination), ABJ did indeed order the passage (page 36 line 16) where she discussed the recipients of the data to be corrected, making it virtually certain Manafort shared the data with one Russian and two Ukrainian oligarchs.

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. 

Did Mueller Ask Manafort Any Questions about His Early May 2016 Meeting with Kilimnik?

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I’ll be honest with you. The reason I did this post — showing that the polling data Paul Manafort shared with Konstantin Kilimnik on August 2, 2016 amounted to at least 75 pages — (and a whole lot of background work not shown) was because I wanted to puzzle through the NYT’s latest story on what Manafort shared with Kilimnik when. Ken Vogel (who bylined both the other stories repeating the cover story someone fed them in January), perhaps faced with mounting evidence they got lied to, now says Manafort shared polling data with Kilimnik twice, once at the May meeting they had, and again at the August one.

And around the same time that he was passing through Washington nearly three years ago — just as Mr. Trump was clinching the Republican presidential nomination — he first received polling data about the 2016 election from two top Trump campaign officials, Mr. Manafort and Rick Gates, as Russia was beginning a social media operation intended to help Mr. Trump’s campaign.

[snip]

Around the time of Mr. Kilimnik’s trip to the United States in spring 2016, Mr. Manafort directed Mr. Gates to transfer some polling data to Mr. Kilimnik, including public polling and some developed by a private polling company working for the campaign, according to a person with knowledge of the arrangement.

Mr. Manafort asked Mr. Gates to tell Mr. Kilimnik to pass the data to Mr. Lyovochkin and Mr. Akhmetov, the person said. Representatives for both Mr. Lyovochkin and Mr. Akhmetov said they neither requested nor received the data, and would have had no use for it.

Mr. Mueller’s team has focused on what appears to have been another discussion about polling data in New York on Aug. 2, 2016. A partly redacted court transcript suggests that Mr. Gates, who entered a plea agreement with the special counsel that requires his cooperation, may have told prosecutors that Mr. Manafort had walked Mr. Kilimnik through detailed polling data at a meeting that day in the cigar lounge of the Grand Havana Room in Manhattan.

The meeting also included a conversation about one Ukrainian “peace plan,” according to court filings.

I think if Vogel were more confident about this, it’d be the lede. BREAKING: suspected Russian asset got Trump’s polling data over and over.

Instead, Vogel tries to finesse the earlier report — which this coverage unambiguously marks as an error — so as to pretend that when the NYT reported that a court filing referred to Manafort sharing polling data with Kilimnik, the court filing meant that had happened in spring, not August. The court dispute — as Vogel’s reference to Mueller’s team’s focus now concedes — all pertains to August.

The publication history of the NYT “correction”

Side note: the publishing history of the original January 8 NYT article is of particular interest, especially since the Newsdiffs site apparently didn’t track this article, According to the Internet archive, the original story (bylined by Sharon LaFraniere and Ken Vogel) posted by 20:22 on January 8. The only description of the polling data comes in the lede:

Paul Manafort shared Trump campaign polling data with an associate tied to Russian intelligence during the 2016 campaign, prosecutors alleged, according to a court filing unsealed on Tuesday.

The first version of the story to include more detail posted at 3:51 on January 9. This is the first version that includes Maggie Haberman on the byline (and Scott Shane and Andrew Kramer as contributors). This is the version that said Manafort knew Kilimnik was going to share the data with Oleg Deripaska. But it also introduces two things that are inaccurate: the timing, and that the data was public.

As a top official in President Trump’s campaign, Paul Manafort shared political polling data with a business associate tied to Russian intelligence, according to a court filing unsealed on Tuesday. The document provided the clearest evidence to date that the Trump campaign may have tried to coordinate with Russians during the 2016 presidential race.

[snip]

The document gave no indication of whether Mr. Trump was aware of the data transfer or how Mr. Kilimnik might have used the information. But from March to August 2016, when Mr. Manafort worked for the Trump campaign, Russia was engaged in a full-fledged operation using social media, stolen emails and other tactics to boost Mr. Trump, attack Mrs. Clinton and play on divisive issues such as race and guns. Polling data could conceivably have helped Russia hone those messages and target audiences to help swing votes to Mr. Trump.

Both Mr. Manafort and Rick Gates, the deputy campaign manager, transferred the data to Mr. Kilimnik in the spring of 2016 as Mr. Trump clinched the Republican presidential nomination, according to a person knowledgeable about the situation. Most of the data was public, but some of it was developed by a private polling firm working for the campaign, according to the person.

Mr. Manafort asked Mr. Gates to tell Mr. Kilimnik to pass the data to Oleg V. Deripaska, a Russian oligarch who is close to the Kremlin and who has claimed that Mr. Manafort owed him money from a failed business venture, the person said. It is unclear whether Mr. Manafort was acting at the campaign’s behest or independently, trying to gain favor with someone to whom he was deeply in debt. [my emphasis]

So at that point, the story was:

  • Byline includes Maggie for the first time
  • Shared in spring
  • Mostly public
  • Intended for Deripaska

The story posts in a “corrected” form sometime before 19:23 on January 9. It retains the timing and public data claims, but changes the recipient with a “correction,” even while retaining an earlier paragraph about Deripaska that (particularly given the August handoff) should disprove the “correction.” It also adds a paragraph effectively admitting that it isn’t as obvious why two Ukrainian oligarchs would want the polling data in the way that Deripaska would have an obvious use for it.

About the same time, Mr. Manafort was also trying to curry favor with Oleg V. Deripaska, a Russian billionaire close to the Kremlin and an associate of Mr. Kilimnik. In July 2016, Mr. Manafort, then the Trump campaign chairman, told Mr. Kilimnik that he could offer Mr. Deripaska “private briefings,” according to emails reported by The Washington Post. Mr. Deripaska had claimed Mr. Manafort owed him millions from a failed business venture, and Mr. Manafort may have been trying to use his status in the campaign to hold him at bay.

[snip]

Mr. Manafort asked Mr. Gates to tell Mr. Kilimnik to pass the data to two Ukrainian oligarchs, Serhiy Lyovochkin and Rinat Akhmetov, the person said. The oligarchs, neither of whom responded to requests for comment, had financed Russian-aligned Ukrainian political parties that had hired Mr. Manafort as a political consultant.

Why Mr. Manafort wanted them to see American polling data is unclear. He might have hoped that any proof that he was managing a winning candidate would help him collect money he claimed to be owed for his work on behalf of the Ukrainian parties.

[snip]

A previous version of this article misidentified the people to whom Paul Manafort wanted a Russian associate to send polling data. Mr. Manafort wanted the data sent to two Ukrainian oligarchs, Serhiy Lyovochkin and Rinat Akhmetov, not Oleg V. Deripaska, a Russian oligarch close to the Kremlin.

There’s a part of me that wonders whether NYT was not so obstinate on the issue of this data being public and shared in spring because they’ve seen lawyers notes or even the 302 of Manafort’s testimony that Amy Berman Jackson has since ruled to be a lie. They’re still sourcing the claim to one individual in the know, which seems like pretty shaky sourcing to ignore after the plain language of the official court transcript of the February 4 hearing made it clear this was an August hand-off. So it may be they’ve got a non-public document that leads them to believe this is the case, even if that non-public document is just a record of Manafort lying.

Weissmann may have corrected the NYT in the breach determination hearing

But we know that after the NYT story, with its prominent Deripaska claim followed by its “correction,” the government submitted a declaration on January 15 in which most of the discussion of polling data was entirely redacted, then argued the point at length on February 4. In addition to Richard Westling’s comments that make it clear this wasn’t mostly public data, Andrew Weissmann argued (in passage that was mistakenly attributed to Westling in the transcript), that Manafort knew the data would be shared with two entities.

As noted, the last redaction in this passage would fit neither of the Ukrainian oligarchs named but would fit Deripaska, though that’s just one possibility. That said, given that the meeting was on August 2, in the context of Manafort “getting whole” with Deripaska, it would be inconceivable that Kilimnik would share the data only with the Ukrainians.

In addition to saying that Manafort was telling the lies he told in a bid to sustain hopes for a pardon, Weissmann also makes a reference to a lie told “three weeks ago.” Given the redaction fail, we can be certain that nothing in the Manafort filing (which was technically more than three weeks before the hearing) could be that lie. But the “correction” to the NYT could be.

Weissmann also moves directly from that discussion to an assertion that the question of sharing polling data went straight to the heart of Mueller’s mandate — investigating “witting or unwitting” coordination with Russia.

MR. WEISSMANN: So — so, first, in terms of the what it is that the special counsel is tasked with doing, as the Court knows from having that case litigated before you, is that there are different aspects to what we have to look at, and one is Russian efforts to interfere with the election, and the other is contacts, witting or unwitting, by Americans with Russia, and then whether there was — those contacts were more intentional or not. And for us, the issue of [2.5 lines redacted] is in the core of what it is that the special counsel is supposed to be investigating.

And we know from Amy Berman Jackson’s breach determination ruling that she found this was indeed a link with Russia — not Russian backed oligarchs, but Russia.

That’s circumstantial, but it seems that Weissmann was rebutting the notion that Manafort intended Kilimnik to share this information exclusively with Ukrainians, and not Russians. Whatever the case, ABJ has ruled that the sharing of this data did entail a link with the Russian government.

Manafort invokes some earlier meeting as a last ditch ploy in his final filing

Which brings me to ABJ’s mention of a totally new argument that Manafort apparently raised in their final brief.

Some background to this brief. During the debate over the polling data on February 4, Manafort’s lawyers tried to rebut the claim first by Richard Westling spinning the data, then by Kevin Downing claiming that Rick Gates had no credibility, as proven (he claimed) by Gates’ flop before the EDVA jury. ABJ then, on her own, gets the public report from a juror on the EDVA jury to prove Downing’s attacks are overblown. Through it all, the possibility that Gates might be called in to testify on this issue (which of course would allow ABJ to decide that he’s way more credible than Manafort, but then most people are). Ultimately, Manafort’s lawyers say they don’t want that to happen, but say they’ll submit one more brief.

That’s the one I cited in this post, referencing the polling data and Kilimnik’s emails about them. According to ABJ in her judgment hearing, after the entire breach determination was done, Manafort’s team tried to make a totally new argument about what Manafort was saying when he told Gates to print out the polling data.

More important to me, there’s other corroboration. There’s Exhibit 233, an [redacted — remember, this exhibit is the email with polling data attached] Now, I was told on February 8th, for the first time, in the third pleading that was filed in response to these allegations and after the hearing was over, that when Mr. Manafort said [3 lines redacted] There’s nothing provided to substantiate that, but there’s also nothing in the record to indicate one way or the other that the two men had met previously [redacted]

All Gates said to the FBI in Exhibit 236 on January 30th was that [redacted]. Is that text alone definitive? Am I relying on that solely? No. But is it corroborative of Gates’s statement that [redacted] Yes.

This seems to be an effort to suggest that the first three times Gates claimed Manafort shared polling data in proffer sessions in January and February 2018 he was saying something different than what he was saying in what they claim was a brand new claim on September 28, in testimony parallel to Manafort’s own. There’s nothing in the unredacted passages of that filing that explain this argument (though it does reference data from “prior to the Republican Convention and the start of the General Election,” which could be July 15 or could be May 2.

Ultimately, the ploy doesn’t work. ABJ goes through two different Gates 302s from January and another (which may be the stuff that had been ex parte at the February 4 hearing) from February 7, 2018 that all corroborate that Manafort ordered Gates to print out the polling data to be shared at that August 2 meeting.

I’m interested in this for two reasons. First, this new argument, made a month after someone first gave a false story to the NYT, seems to be referencing an earlier meeting between … somebody. Maybe Gates and Kilimnik?

But I do find that to be an interesting detail for two reasons. First, as noted, the NYT story, without correcting their initial outright error that the court dispute pertained to the August 2 meeting, now claims that Manafort directed Gates to deal poll data twice, once in May and once in August.

And around the same time that he was passing through Washington nearly three years ago — just as Mr. Trump was clinching the Republican presidential nomination — he first received polling data about the 2016 election from two top Trump campaign officials, Mr. Manafort and Rick Gates, as Russia was beginning a social media operation intended to help Mr. Trump’s campaign.

[snip]

Around the time of Mr. Kilimnik’s trip to the United States in spring 2016, Mr. Manafort directed Mr. Gates to transfer some polling data to Mr. Kilimnik, including public polling and some developed by a private polling company working for the campaign, according to a person with knowledge of the arrangement.

Mr. Manafort asked Mr. Gates to tell Mr. Kilimnik to pass the data to Mr. Lyovochkin and Mr. Akhmetov, the person said. Representatives for both Mr. Lyovochkin and Mr. Akhmetov said they neither requested nor received the data, and would have had no use for it.

Is that what Manafort’s team invented at this late date? A claim that the reference in the August 2 email to sharing data with Kilimnik was about a meeting that had transpired three months earlier?!?!

The May Kilimnik meeting never shows up in the breach determination

But it does raise some interesting questions. Notably, it’s not clear whether the May 2016 meeting between Manafort and Kilimnik came up at all during his cooperation.

The government’s January 15 declaration sets a start date on Manafort’s lies, “Beginning on August 2, 2016, and continuing until March 2018, Manafort and Kilimnik communicated about a [peace deal],” but that seems to relate exclusively to that peace deal. It doesn’t rule out a discussion of that earlier meeting (though it does seem to rule out Mueller knowing that Ukrainian sanctions came up, which actually is a good thing for Trump given the stink around the Ukrainian language in the Republican platform in July). 

Which leaves three possibilities, apart from Manafort’s efforts to separate the sharing of polling data from the discussions about a Ukraine peace deal.

  • Prosecutors didn’t discuss the May meeting at all with Manafort during his cooperation
  • Prosecutors discussed the May meeting with Manafort (which may have included a meeting with Trump) and he told the truth about it
  • Manafort lied about the May meeting, but prosecutors didn’t want to lay out what they really know about it

All would be interesting. I mean, even aside from the possibility that Trump met Kilimnik, the early May meeting should be of significant interest because at least two other events closely coincide with it:

  • On May 4, Ivan Timofeev tells George Papadopoulos he has been cleared to start negotiations with Papadopoulos, which leads him to forward an email discussing such an offer to multiple people on the campaign, including (on May 21), Manafort
  • After their discussions about a Trump Tower had moved to Dust between January and May, Felix Sater sends Michael Cohen texts moving to set up his and Trump’s trips to Moscow.

In other words, May 4 or thereabouts, just a week after the Russians first dangled the emails to Papadopoulos, the plot appears to start up again. That coinkydink of significant events would seem to be something prosecutors would want to discuss with Manafort.

If they did, they’re not telling us whether he told the truth.

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

Manafort’s Bid for a Pardon: No Collusion No Collusion No Collusion No Collusion No Collusion No Collusion No Collusion No Collusion

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Paul Manafort submitted his DC sentencing memo. I lay out some of his more ridiculous claims about wanting to serve public servants like Mobutu Sese Seko, Ferdinand Marcos and Jonas Savimbi and his use of “garden variety” to describe his epic corruption in this thread. Particularly given the way that parts of this memo will surely piss off Amy Berman Jackson (and probably even TS Ellis, his EDVA judge), the real substance of his argument is this:

Importantly, the defendant has not been charged with any crimes related to the primary focus of the Special Counsel’s investigation; i.e., “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump[,]” otherwise referred to as “Russian collusion” by the national media.

[snip]

As said at the beginning of the case, there is no evidence of Russian collusion.

[snip]

Shortly after Mr. Trump’s election, the Acting Attorney General appointed the Special Counsel in May 2017 to investigate allegations that his campaign colluded with the Russian government to influence the 2016 election. The scrutiny was (and remains) intense because the investigation involves a sitting U.S. president.

[snip]

Rousing the defendant and his wife from bed, the federal agents entered their home with guns drawn and searched high and low—not for evidence of Russia collusion—but rather for evidence of tax and financial crimes and Mr. Manafort’s failure to file forms under the obscure FARA statute.

[snip]

In October 2017, unable to establish that Mr. Manafort engaged in any Russia collusion, the Special Counsel’s Office charged Mr. Manafort in the District of Columbia with crimes that did not relate to Mr. Manafort’s work on the 2016 U.S. presidential campaign and generally involved his employment years ago by Ukrainian oligarchs, politicians and the Party of Regions. Several months later, in February 2018, the Special Counsel increased the pressure by charging Mr. Manafort in the Eastern District of Virginia (EDVA) with tax fraud, failing to report foreign bank accounts, and bank fraud—allegations, once again, that predated the 2016 campaign or that were unrelated to collusion between Mr. Trump’s campaign and the Russian government.5

5 As U.S. District Judge T.S. Ellis, III noted in the EDVA matter, the Special Counsel’s strategy in bringing charges against Mr. Manafort had nothing to do with the Special Counsel’s core mandate—Russian collusion—but was instead designed to “tighten the screws” to compel Mr. Manafort to cooperate and provide incriminating information about others. See United States v. Manafort, 18-CR-0083-TSE (EDVA), Tr. of May 4, 2018 Motions Hearing at 5

[snip]

The Special Counsel’s investigation and prosecution in this case (and the EDVA case) do not charge him with anything related to Russia collusion or to the presidential campaign. 34

34 As Judge Ellis noted in the EDVA case: “And so what is really going on … is that this indictment [was] used as a means of exerting pressure on the defendant to give you information that really is in [the Special Counsel’s] appointment, but itself has nothing whatever to do with it.” United States v. Manafort, 18-CR0083-TSE (E.D.Va. 2018), Tr. of May 4, 2018 Motions Hearing at 8.

[snip]

The sentences already imposed in other cases that have been investigated and/or prosecuted by the Special Counsel’s Office reflect the fact that courts recognize that these prosecutions bear little to no relation to the Special Counsel’s core mandate of investigating allegations that the Trump campaign colluded with the Russian government to influence the 2016 election.

Particularly given ABJ’s finding that Manafort lied about how he gave the Russian government polling data via Konstantin Kilimnik amid conversations about a sanctions-ending Ukraine “peace” plan, and given that the warrant to search his Alexandria condo explicitly including Russian conspiracy in the affidavit, the eight different claims Mueller wasn’t searching for and didn’t find “collusion” are false.

But that’s doesn’t matter. Manafort’s job — if he wants the pardon he has been playing for all this time — is to keep repeating that lie, just like the guy he’s speaking to.

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. 

On August 2, 2016, Paul Manafort Gave Konstantin Kilimnik 75 Pages of Recent, Detailed Polling Data

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I want to return again to the question of what Paul Manafort ordered Rick Gates to print out on August 2, 2016, so he could share it with Konstantin Kilimnik at a clandestine meeting that night. While Manafort seems to have told the government or grand jury that the data “just was public information,” the comments of his own lawyer, Richard Westling, make it clear that it was something else entirely.

In the February 4 breach hearing, Westling actually argues that “if the goal [of sharing the data with Kilimnik] were to help Mr. Manafort’s fortunes, that some other kind of [redacted] something more public, more [redacted] might help.” He says that after describing the polling data as “gibberish” because he can’t, himself, understand the data, while describing it as, “very detailed [redacted] on a level that is very focused.” In an effort to sustain a claim that Manafort ordered Gates to print it out for use at a campaign meeting that day, Westling also says, “it was the most recent, from what we can tell, the most recent [redacted] but I’m not sure. That would have been relevant to a meeting they were having within the campaign.”

Westling also suggests that Amy Berman Jackson should go check it out herself: “there’s copies of it in the exhibits.”

In what might be an effort to describe the evidence they’re looking at to co-conspirators, Manafort’s lawyers again provided descriptive information of the polling data in a follow-up filing (which ABJ complains in her ruling hearing presented new claims not even raised at the breach hearing and which may have already been integrated into this still erroneous on the point of the polling data NYT story) — provides more detail about how much polling data Manafort gave Kilimnik to be shared with Russia. In an effort to flip-flop on their explanation that the data was the most recent available, they describe the email Manafort sent Gates on August 2, telling him to print out the polling data.

That exhibit is Exhibit 233.

Then it describes the data itself — stating that it dates to “prior to the Republican Convention and the start of the General Election.”

Even if this claim is true (again, as ABJ noted, Manafort’s team made this claim at a time when Mueller would not have an opportunity to correct the record), it would mean the data may have been just 15 days old. Dated, but not necessarily months old as the NYT likes to parrot.

Then, a totally redacted footnote further describes the data. While the description is redacted, the pagination of the exhibit is not. It shows that there are 75 pages of polling data.

This last filing also says a bit about the emails that Mr. Kilimnik sent, discussing his access to the data. Two footnotes make it clear there are at least 6 Kilimnik emails referring to the polling data.

Again — that’s not what I’m saying, or Amy Berman Jackson, or Andrew Weissmann. That’s how Manafort’s own lawyers describe the data and the emails where Kilimnik discussed having received it.

It’s when you couple that data with what Weissmann and ABJ go on to say about it that the data is more damning. As I’ve noted before, Rick Gates testified that Manafort walked Kilimnik through the data at that clandestine August 2 meeting.

And the logic of ABJ’s judgment makes clear that this sharing of poll data amounts to a link to the Russian government.

I disagree with the defendant’s statement in docket 503, filed in connection with the dispute over the redactions, that, quote, the Office of Special Counsel’s explanation as to why Mr. Manafort’s alleged false statements are important and material turns on the claim that he is understood by the FBI to have a relationship with Russian intelligence.

I don’t think that’s a fair characterization of what was said. The intelligence reference was just one factor in a series of factors the prosecutor listed. And the language of the appointment order, “any links,” is sufficiently broad to get over the relatively low hurdle of materiality in this instance, and to make the [redaction] Kilimnik and [redaction] material to the FBI’s inquiry, no matter what his particular relationship was on that date.

So 75 pages of gibberish that only a highly trained operative like Kilimnik could understand, which he then passed onto someone that ABJ believes amounts to a link to the Russian government. That’s Manafort’s least damning 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. 

Quid Pro Quo Redux, Part Two: Russian Government Involvement in All Three Conspiracy Agreements

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Given reports that Mueller will “report” imminently, I’m not sure I’m going to finish the second version of my Quid Pro Quo series laying out the evidence of a conspiracy between the Trump campaign and Russia trading campaign help and real estate deals for sanctions relief (here’s the initial series; here’s the first post of this second series). But I’d like to make a point as a way of showing that Amy Berman Jackson deemed Paul Manafort’s August 2, 2016 meeting with Konstantin Kilimnik to be evidence of a link between the Russian government and the campaign.

We know of at least five conversations at which various people entered into what I describe as a quid pro quo conspiracy:

  1. January 20, 2016, when Michael Cohen told Dmitry Peskov’s personal assistant that Trump would be willing to work with a GRU-tied broker and (soft and hard) sanctioned banks in pursuit of a $300 million Trump Tower deal in Russia.
  2. June 9, 2016, when Don Jr, knowing that currying favor with Russia could mean $300 million to the family, took a meeting offering dirt on Hillary Clinton as “part of  Russia and its government’s support for Mr. Trump.” At the end of the meeting, per the testimony of at least four attendees, Don Jr said they’d revisit Magnitsky sanctions if his dad won.
  3. August 2, 2016, when Paul Manafort and Rick Gates had a clandestine meeting with Konstantin Kilimnik at which Trump’s campaign manager walked Kilimnik through highly detailed poll data and the two discussed a “peace” plan for Ukraine understood to amount to sanctions relief.
  4. December 29, 2016, when (working on instructions relayed by KT McFarland, who was at Mar-a-Lago with Trump) Mike Flynn said something to Sergey Kislyak that led Putin not to respond to Obama’s election-related sanctions.
  5. January 11, 2017, when Erik Prince, acting as a back channel for Trump, met with sanctioned sovereign wealth fund Russian Direct Investment Fund CEO Kirill Dmitriev.

Remember: to enter into a conspiracy you have to agree to one object of a conspiracy (a conspiracy might have multiple objectives), and take an overt act to further that conspiracy. You don’t have to agree to all objects of the conspiracy, nor do you have to know about all parts of it.

The key conversations in this conspiracy, it seems to me, are the middle three: the June 9 Trump Tower plus dirt for sanctions relief agreement, the August 2 election assistance for sanctions agreement, and the December 29 reassurance that Trump would revisit Obama’s sanctions. The involvement of the Russian government in the fourth one — with Sergey Kislyak and Mike Flynn on a series of phone calls relaying messages back and forth between Putin and Trump — is obvious (as it is for the first and fifth).

It’s the other two where, in recent months, the government has solidified its proof of direct Russian government involvement.

Natalia Veselnitskaya, Russian government agent, at the June 9 meeting

They did so for the June 9 meeting on December 20 when they charged Natalia Veselnitskaya with obstruction of justice. The indictment alleges that an MLAT request served on the Russian government in the Prevezon case was actually drafted by Veselnitskaya. As Joshua Yaffa argued after the indictment was unsealed on January 8, the indictment will probably never result in prison time for Veselnitskaya but it does substantiate a claim that she is an agent of Russia.

In short, the U.S. Attorney’s office alleges that a document that was ostensibly prepared by the office of Russia’s general prosecutor and sent to its counterparts in the U.S. Department of Justice was in fact drafted, or at least edited, by Veselnitskaya herself, who then went on to cite the document as independent proof of her version of events. In this manner, the U.S. Attorney’s office alleges, “Veselnitskaya obstructed the civil proceeding in the Prevezon action then pending in this District.”

[snip]

Veselnitskaya is unlikely ever to return to the United States. This means that U.S. prosecutors are probably less interested in this particular, narrow matter than in what filing charges allows them to do going forward. “If the government wants on record that Natalia is a Russian government agent, this indictment serves this purpose,” the former member of the Prevezon defense team told me. That is to say, if and when charges are filed in relation to the Trump Tower meeting, prosecutors now have a building block on which to argue that, in her actions in the United States, Veselnitskaya did not represent merely herself and her client but the interests of Russian officials. That should worry Donald Trump, Jr., and Jared Kushner, who attended the meeting with Veselnitskaya, and, in turn, the President himself.

So when Don Jr told Veselnitskaya on June 9, 2016, that Trump would revisit sanctions if he won, he was effectively telling an agent of the Russian government that.

Konstantin Kilimnik, Russian government link, at the August 2 meeting

While the redactions require logic to demonstrate the case, Amy Berman Jackson’s explanation of her breach decision shows she believes that Konstantin Kilimnik — regardless of his alleged ties to the GRU — served as a link to the Russian government at that August 2 meeting.

Early on in the hearing, while ruling that she regards Manafort’s attempts to backtrack on his confession to conspiring with Kilimnik to witness tamper in 2018 to be bad faith but not proven, she questions Manafort’s loyalties while calling Kilimnik his “Russian conspirator.”

To me, this is definitely an example of a situation in which the Office of Special Counsel legitimately concluded he’s lying to minimize things here, he’s not being forthcoming, this isn’t what cooperation is supposed to be. This is a problematic attempt to shield his Russian conspirator from liability and it gives rise to legitimate questions about where his loyalties lie.

When she turns to the two-fold lies about Manafort’s ongoing meetings with Kilimnik (which starts on page 28, line 2), here’s what ABJ judges, up to the point where she talks about whether Kilimnik is a tie to Russia:

  • Manafort’s most problematic Ukraine peace deal lie is that he never discussed a peace deal after August because he thought it was a bad idea. His subsequent emails supporting one show that claim to be an “alternative narrative.”
  • Manafort’s denial of the Madrid meeting amounts to denying a contact. (29)
  • Manafort offered “a series of revised explanations” about providing questions for a poll on a Ukraine peace deal in conjunction with running another campaign in Ukraine. (29-30)
  • Manafort’s claims to have forgotten about the August 2 meeting because he was so busy running Trump’s campaign in fact show the opposite. That’s because sharing polling data “relates to the campaign.” If he was “so single-mindedly focused on the campaign, then the meeting he took time to attend” to share polling data and discuss a Ukraine “peace” plan had a purpose related to the campaign. Or, if he only took the meeting to curry favor with Ukrainian and Russian paymasters, “well, in that case he’s not being straight with me about how single-minded he was. It’s not good either way.” (31)
  • The clandestine nature of the meeting, with Gates and Manafort arriving and leaving separately “because of the media attention focused at that very time on Manafort’ relationships with Ukraine” further undermines his claims he can’t remember the meeting. (32)
  • In heavily redacted language, ABJ lays out why she finds Gates’ testimony on the August 2 meeting credible. (33-35)
  • There’s further corroboration surrounding the August 2 meeting, which Manafort appears to have tried to rebut with information newly submitted on February 8 (which seems to relate to an earlier meeting and may be an effort to suggest this was dated polling information). (34)
  • There are a series of emails from Kilimnik to somebody else (possibly ones sharing the information) that corroborate Gates’ story. (35)
  • The defense claim that the polls are gibberish doesn’t fly because Manafort, Gates, and Kilimnik all understood them. Indeed, these polls (presumably from Fabrizio) were the ones Manafort preferred and that Kilimnik would understand. (35-36)

The discussion of whether Kilimnik amounts to a tie to Russia starts on 36; it is a response to Manafort’s attempt to disprove that this exchange is material by arguing that Mueller has alleged, but not proven, that Kilimnik has ties to Russian intelligence (which suggests not even Manafort is claiming that these events don’t amount to a tie with Russia). ABJ starts that discussion by moving directly from describing (in a heavily redacted passage) who the intended recipients of the data were to the Russian question.

Also, the evidence indicates that it was understood that [redacted–poll data] would be [redacted] from Kilimnik [redacted] including [redacted], and [redacted]. Whether Kilimnik is tied to Russian intelligence or he’s not, I think the specific representation by the Office of Special Counsel was that he had been, quote, assessed by the FBI, quote, to have a relationship with Russian intelligence, close quote.

The only way that ABJ would make that transition, logically, is if the descriptions behind some of those redactions are Russians. If they were just the Ukrainian oligarchs the NYT claims they were, this entire passage — and Manafort’s attempted rebuttal of them (that is, to deny its import because Kilimnik himself has no ties to Russian intelligence) — makes zero sense.

Having made that transition, ABJ then lays out why she doesn’t have to determine whether Kilimnik is himself Russian intelligence to determine that he does amount to a tie to the Russian government.

Whether that’s true, I have not been provided with the evidence that I would need to decide, nor do I have to decide because it’s outside the scope of this hearing. And whether it’s true or not, one cannot quibble about the materiality of this meeting.

In other words, I disagree with the defendant’s statement in docket 503, filed in connection with the dispute over the redactions, that, quote, the Office of Special Counsel’s explanation as to why Mr. Manafort’s alleged false statements are important and material turns on the claim that he is understood by the FBI to have a relationship with Russian intelligence.

I don’t think that’s a fair characterization of what was said. The intelligence reference was just one factor in a series of factors the prosecutor listed. And the language of the appointment order, “any links,” is sufficiently broad to get over the relatively low hurdle of materiality in this instance, and to make the [redaction] Kilimnik and [redaction] material to the FBI’s inquiry, no matter what his particular relationship was on that date.

From there, ABJ dismisses the defense claim that because Kilimnik made comments about various loyalties (possibly to the press, possibly to the State Department), he couldn’t be Russian intelligence. She even suggests that an email sent on August 18, 2016, at a time when Manafort’s ties to Ukraine were becoming incredibly toxic, may not be all that reliable. She notes the timing: “Manafort was gone the next day.”

Having dismissed that claim, ABJ then judges that “Manafort made intentional false statements to the FBI and the grand jury with respect to the material issue of his interactions with Kilimnik, including, in particular, [redacted; this must either be a reference to the August 2 meeting generally or the sharing of polling data].

But then ABJ makes a more general statement, having reviewed the multiple efforts Manafort made to obscure his relationship with Kilimnik. In it, she repeats again that he is a link to Russia, whether or not he’s an active spy.

On that note, I also want to say we’ve now spent considerable time talking about multiple clusters of false or misleading or incomplete or needed-to-be-prodded-by-counsel statements, all of which center around the defendant’s relationship or communications with Mr. Kilimnik. This is a topic at the undisputed core of the Office of Special Counsel’s investigation into, as paragraph (b) of the appointment order put it, Any links and/or coordination between the Russian government and individuals associated with the campaign.

Mr. Kilimnik doesn’t have to be in the government or even be an active spy to be a link. The fact that all of this is the case, that we have now been over Kilimnik, Kilimnik, and Kilimnik makes the defense argument that I should find the inaccurate statements to be unintentional because they’re all so random and disconnected, which was an argument that was made in the hearing, is very unpersuasive.  [my emphasis]

To have ruled this conversation material, ABJ rules that Kilimnik (especially the sharing of this polling data, seemingly) amounts to a link with the Russian Government, whether or not he has ties to Russian intelligence. And note, this is a link to the Russian government, not just a link to a Russian like Oleg Deripaska.

We don’t know why that is so; it seems like it relates to the recipients of this polling data. But we know she considers him one, according to the preponderance of the evidence she has seen.

Mind you, if this is all moving just to a report claiming such a conspiracy, but stopping short of charging one, then it may not matter all that much.

But for the three main exchanges in which Trump flunkies entered into agreements that form part of a larger conspiracy, at least one key player has been deemed to have a tie to the Russian government this year (and of course the other two exchanges — Cohen to Peskov and Prince to Kirill — also have obvious Russian government involvement).

RESOURCES

These are some of the most useful resources in mapping these events.

Mueller questions as imagined by Jay Sekulow

CNN’s timeline of investigative events

Majority HPSCI Report

Minority HPSCI Report

Trump Twitter Archive

Jim Comey March 20, 2017 HPSCI testimony

Comey May 3, 2017 SJC testimony

Jim Comey June 8, 2017 SSCI testimony

Jim Comey written statement, June 8, 2017

Jim Comey memos

Sally Yates and James Clapper Senate Judiciary Committee testimony, May 8, 2017

NPR Timeline on Trump’s ties to Aras Agalarov

George Papadopoulos complaint

George Papadopoulos statement of the offense

Mike Flynn 302

Mike Flynn statement of the offense

Mike Flynn cooperation addendum

Peter Strzok 302 (describing Flynn’s interview)

Michael Cohen statement of the offense

Internet Research Agency indictment

GRU indictment

Senate Judiciary Committee materials on June 9 meeting

BuzzFeed documents on Trump Tower deal

Text of the Don Jr Trump Tower Meeting emails

Jared Kushner’s statement to Congress

Erik Prince HPSCI transcript

Government declaration supporting breach determination

Manafort breach hearing

Amy Berman Jackson breach determination hearing

Amy Berman Jackson order finding Manafort breached his plea deal

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. 

On Mueller’s Choice Not to Elaborate on Paulie’s Lies

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Back in November, I noted that by finding Paul Manafort in breach of his plea deal, Mueller guaranteed he could write a report — in the form of a sentencing memo laying out the significance of his lies — that Big Dick Toilet Salesman could not suppress.

And that “detailed sentencing submission … sett[ing] forth the nature of the defendant’s crimes and lies” that Mueller mentions in the report?

There’s your Mueller report, which will be provided in a form that Matt Whitaker won’t be able to suppress.

Back in December, I noted that at each step of his investigation, Mueller has chosen to submit far more details into the public record than necessary, effectively issuing a report of his work along the way. The WaPo and AP have neat stories in the last few days substantiating that that remains the case.

Indeed, today’s sentencing memo reinforces that point, insofar as it includes 577 pages of trial exhibits laying out Manafort’s sleazy influence peddling with respect to Ukraine.

What it doesn’t do is what I suggested — had Mueller chosen to use it as such — he might do, if he believed his report would be suppressed by the then [Acting] Attorney General, which is to use this report to lay out extensive details of what his investigation discovered. Rather than doing that, which would totally be in the norm for sentencing memos (indeed, Mueller would have been able to present more than Manafort’s lies as related conduct), he instead simply notes that Amy Berman Jackson is already familiar with all that.

Manafort’s conduct after he pleaded guilty is pertinent to sentencing. It reflects a hardened adherence to committing  crimes and lack of remorse. As the Court is fully familiar with this proof, we do not repeat the evidence herein.

The sentencing memo then incorporates Special Counsel’s submissions on the breach determination.

The government relies on and incorporates herein its submissions on this issue.

In a footnote supporting the first statement, the memo cites ABJ’s order finding that Manafort had lied to protect a Trump flunkie in another investigation, lied to hide why and how he dealt polling data to Konstantin Kilimnik at a meeting where they also discussed a Ukrainian peace deal (which Manafort knew to be code for sanctions relief), lied about his ongoing discussions about a sanctions-relief peace deal, and lied about a kickback scheme he had with vendors he hired to work for Trump’s campaign. It also cites the transcript where she explained her ruling on those issues, which among other things deemed the August 2, 2016 meeting to be material to the investigation, including the core issue of coordination with the Russian government.

[O]ne cannot quibble about the materiality of this meeting.

[snip]

This is a topic at the undisputed core of the Office of Special Counsel’s investigation into, as paragraph (b) of the appointment order put it, Any links and/or coordination between the Russian government and individuals associated with the campaign.

A footnote supporting the second statement cites the FBI’s declaration supporting the breach determination, which also included a slew of exhibits.

Of course, the transcript, declaration, and exhibits are significantly (almost entirely, in the case of the breach exhibits) redacted. Some of those redactions are dictated by law and DOJ regulations. The grand jury transcripts are protected by grand jury secrecy rules. The description of the other DOJ investigation Manafort lied about is protected as an ongoing investigation. And names of unindicted people are protected per DOJ regulations.

But the rest of those materials are redacted for another reason: to protect the investigation.

In addition, we know that Mueller actually didn’t show all the evidence of Manafort’s ongoing communications with the Trump administration, including communications that “provid[e] information about the questions or other things that are happening in the special counsel investigation, … sharing that with other people.” That was the only area where ABJ totally disagreed with Mueller’s claim that Manafort was in breach (she agreed Manafort’s lies about conspiring with Kilimnik were not good faith cooperation, but said making a finding that they had proven it without a transcript was “challenging”). In other words, Mueller could have presented more evidence that Manafort continued to be in communication with Trump to get ABJ’s ruling on that topic too, but didn’t, at least in part because they didn’t want to share what they knew with Manafort.

So Mueller chose not to make that information available, when he could have, especially given reports (which I have no reason to doubt) that the investigation is substantially complete. Compare the decision to keep that stuff secret with what Mueller did in the George Papadopoulos, Mike Flynn, Michael Cohen, and draft Jerome Corsi pleas, and Roger Stone’s indictment. In each of the other accusations of lying, Mueller laid out juicy details that pointed to key details of the investigation. Here, in a case where they legitimately considered charging Manafort with more false statements charges, they chose to keep precisely the kind of stuff they had disclosed in other false statements accusations secret. Particularly on the issue of sharing polling data, which Andrew Weissmann described to be the “the core of what it is that the special counsel is supposed to be investigating” because they pertained to whether contacts with Russia “were more intentional or not,” Mueller kept the key details redacted to protect the ongoing investigation.

And by choosing to leave the record where it stands — by choosing not to describe what the evidence shows regarding that August 2 meeting in this sentencing memo — Mueller has deviated from the approach he has taken in every other instance (including this one, as it pertains to Manafort’s Ukrainian lobbying) where he had an opportunity to provide a speaking document.

So it was, in fact, the case that deeming Manafort to be in breach provided an opportunity — that Big Dick Toilet Salesman could not and did not prevent — to provide more information. We got snippets of that, especially on the August 2 meeting. If Mueller believed he could not present a substantive final report now, he could have presented those details in unredacted form.

But is also the case that Mueller deviated from past practice. And he did so not because he didn’t believe the lies were material, nor because he believed the lies weren’t criminal, as the lies that Papadopoulos, Flynn, Cohen, Corsi, and Stone all told also were. Both Weissmann and ABJ made it clear the lies, particularly about that August 2 meeting, were central to the topic of investigation. He deviated from past practice to protect an ongoing investigation we have every reason to believe is substantially completed.

That leads me to believe he’s certain he will be able to provide a report in some public form, presumably in the same kind of detail he has presented in all his other statements. He doesn’t need to avail himself of this opportunity to do so.

I don’t know what that means about what form the report will take. I don’t know what that means about what it will show with regards to criminal conduct (except that, presumably, we’ll get the details that remain hidden about the August 2 meeting and communications with Trump’s people).

But it does make it clear that even given the opportunity to follow past practice at a time when, according to most reporting, the investigation is substantially done, Mueller chose not to avail himself of that opportunity, instead just pointing to materials that hide the most important details to protect the investigation.

After predicting (given claims that have since not borne out that the report was coming out next week) that this sentencing memo would lay out precisely the details that Mueller chose to keep hidden with his citations to redacted documents, I argued “we’ll learn a lot abt what [reports that Mueller is done] means from Manafort’s sentencing memo tho.”

I believe it suggests that Mueller plans to and believes he can present the details about that August 2 meeting somewhere else.

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 Amy Berman Jackson Got Roger Stone to Step in It and Then Step in It Again

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As you no doubt have heard, Amy Berman Jackson imposed a gag on Roger Stone yesterday in response to his posting a picture of her with a cross-hairs on it.

But I’d like to look at how she did so, not just because of the way she crafted it to withstand what may be a legal challenge from Stone’s lawyers, but for how she got Stone on the hook for lies that may get him jailed anyway.

At the beginning of the hearing, she puts Bruce Rogow, Stone’s attorney, on the record about several issues. She gets him to certify that the post in question came from Stone’s Instagram account, as well as the timing of its posting and removal.

THE COURT: And I note that the defendant is present. Who’s going to be handling the argument for the defendant?

MR. ROGOW: I am, Your Honor.

THE COURT: Okay. Well, why don’t you remain there. And you can be seated, Mr. Farkas. Mr. Haley, could you please provide a copy of something that I’ve marked as Exhibit A to Mr. Rogow?

MR. ROGOW: Received, Your Honor. I have a copy.

THE COURT: I would like to know if Exhibit 1 is the Instagram post for which the defendant docketed the notice of apology, found at docket 38, on February 18, 2019?

MR. ROGOW: It is, Your Honor.

THE COURT: So, Roger J. Stone, Jr. is the defendant’s Instagram account?

MR. ROGOW: Yes, sir — yes, ma’am. I’m sorry.

THE COURT: And the post depicted in Exhibit 1 was posted and later removed on that Instagram account on or about February 18?

MR. ROGOW: It was.

THE COURT: Okay. You can return the exhibit to the deputy clerk. And it will be sealed and made a part of the record in this proceeding. I’m not done with you. So what is your position on behalf of the defendant on whether the media contact order in this case should be modified? [my emphasis]

It probably didn’t help matters that Rogow — who has already broken local rules twice in this case — misgenders ABJ. And from the transcript he seemed surprised she was having him — an officer of the court — certify these things from the start.

Rogow tries to deliver his flourish — that he (insanely!!) was going to put Stone on the stand. ABJ lets him, but then proceeds to get him to restate the basis for his objection to a gag. Rogow presents it as a strict prior restraint issue, arguing that as a defendant Stone should have even more right to speak than a member of the press would.

MR. ROGOW: My position is that it should not be modified, that Mr. Stone should have another opportunity to comply. And I want to put Mr. Stone on the witness stand so that he can — you can hear him, Your Honor, and hear him explain what happened, why it happened, and how he apologizes for it, as he did in that filing a couple of days ago. But he would like to have another opportunity to comply with this Court’s original order. And I think that is our position with regard to that.

THE COURT: All right. Well, if you choose to put Mr. Stone on the stand, I’m going to give you that opportunity. I do have a few questions for you first, and then I may save my other questions for Mr. Stone. In docket 28, your submission in response to my solicitation of submissions about the media contact order, you relied heavily on Nebraska Press Association, a case involving prior restraints on the press. Does the — and I don’t know if it’s pronounced Gentile or Gentile or Gentile case — indicate that Nebraska — the Nebraska Press test, the clear and present danger test that you hung your hat on, has to be applied when the restraint is on a participant in a criminal trial?

MR. ROGOW: It does not.

THE COURT: All right. So how does it apply then in this situation?

MR. ROGOW: It applies by analogy. And I think even stronger with regard to a defendant which is on trial for his or her freedom. The Nebraska Press case, of course, deals with restraints upon the press. In a situation with Mr. Stone, we’re talking about a restraint upon the defendant. The Supreme Court has never addressed the restraint upon the defendant in the First Amendment context, as far as I’m aware, which is what I said in my filing to the Court.

That’s when ABJ makes her move. She asks him how this prior restraint issue applies under the Bail Reform Act, which requires a judge to use the least restrictive means to keep a trial and the public safe. Rogow doesn’t understand where she’s going, so concedes that the Bail Reform Act permits her to impose new conditions to keep the community safe.

THE COURT: All right. He’s currently on bond pending trial on an indictment charging multiple felonies, and subject to conditions of pretrial release. How do the principles that you’re talking about operate in connection with the Bail Reform Act?

MR. ROGOW: Well, they operate to the extent that the Bail Reform Act focuses on whether or not there is a risk of flight or a threat to the community, for the most part. And in this situation there is neither a risk of flight nor a threat to the community. The question in this case is whether or not there was a violation of this Court’s order, an order that the Court entered, with warnings. And Mr. Stone will address that. But our position is that the Bail Reform Act is not the issue in this case in terms of revocation of the conditions of his release.

THE COURT: Well, what if I want to modify the conditions of release? What’s the test for what a Court has to find to impose a condition of pretrial release that’s necessary to protect another person or the community? [my emphasis]

Rogow then introduces a standard — clear and present threat — that has no basis in case law, which ABJ calls him on, which he immediately concedes, then tries to reclaim.

MR. ROGOW: Well, if you found that there is a real threat to another person in the community, an actual clear and present threat to that person, then of course you could apply Your Honor’s power to restrain that person, including revocation of the conditions of release, or change of the conditions of release.

THE COURT: Where does the Bail Reform Act require a clear and specific threat to a specific person?

MR. ROGOW: It doesn’t require in those terms, a clear and present threat, Your Honor, but —

THE COURT: Right. You keep using those terms, and now you’ve told me that it hasn’t been applied in this situation to a participant in the trial and it doesn’t apply in the case of the Bail Reform Act. So why do you keep using that test?

MR. ROGOW: Because I think the test is the proper test to use in a situation where a person is about to go on trial, and is a defendant in a case, and has a right to bail, a right to release on conditions that the Court sets. And so it seems to me that at that point, if the Court is going to not allow him or her to be released, that there ought to be very specific facts. I use clear and present because clear and present seems to be a test that gets applied in many situations where important liberty interests are at stake. [my emphasis]

So she asks him again for case law, and he defers by saying he didn’t expect her to raise this issue because it’s not within the basis of his own argument against a gag.

THE COURT: All right. And what is the best legal authority you have for the theory that you’ve just laid out?

MR. ROGOW: Well, I didn’t have any legal authority on that issue because that was not the subject of my response with regard to the gag order. So I really don’t have any authority off the top of my head, Your Honor, to tell you what case or what statute holds with regard to the conditions of release in a situation like this. And I’m focusing on a situation like this, where you have a specific single instance where this occurred.

Having gotten him to admit that — at least as he stood there, not realizing where she was headed — he had no case law to dispute her, ABJ then gets Rogow on the record regarding how much of what he did claim — that Stone was effectively a journalist — really pertained to speech he needed to conduct for his livelihood.

THE COURT: You said the following in your very impassioned submission about the proposed media contact order: You said, “While it is true that most criminal defendants do not wish to be heard, either publicly or in the course of their trial, Mr. Stone is not such a defendant. His work, for more than 40 years, has been talking and writing about matters of public interest. “He’s published half a dozen books, many stating controversial viewpoints. He’s penned many hundreds of articles and has been the subject of many hundreds more, published in myriad publications. Whether it is his pursuit of a posthumous pardon for Marcus Garvey or the style of his clothes or the state of the nation, Roger Stone is a voice. “Given those realities, a prior restraint of Roger Stones’s free speech rights would be an unconstitutional violation of Stone’s right to work, to pursue his livelihood, and be a part of the public discourse.” That raised some questions in my mind, particularly in the wake of the recent events and his explanations for them that may bear on his conditions of release. And so my first question is: How exactly does he pursue his livelihood? [my emphasis]

ABJ gets Rogow to distinguish Stone’s blather from the things he gets paid for — effectively, PR. Rogow then proceeds to certify that his client is an expert of sorts in PR.

MR. ROGOW: He consults with different business and other political persons. That is one of his kinds of work. The other is he comments, obviously, and gets paid for his commentary. He speaks and gets paid for his speaking.

THE COURT: All right. So when he consults, he consults on the subject of communications or public relations? Is that his —

MR. ROGOW: It could be. It could be both.

THE COURT: — field of expertise? All right. Now, he told Pretrial Services Agency he was employed at Drake Ventures, LLC. So what is the nature of the work for which he reported an income of $47,000 a month? Is that the communications consulting?

She establishes a few more details about Stone’s business, then permits Rogow to call Stone to the stand — but not before she warns him that Stone will be sworn (Rogow knows that, but this will be important if and when he gets charged for lying on the stand) , then also warns Rogow she’ll have questions for him again when Stone is done.

THE COURT: All right. So as long as you understand he’s going to be subject to cross-examination. I have a number of questions. If you are saying to me that you would like me to pose them directly to your client, instead of to you, I will do that; he will be sworn.

MR. ROGOW: I am saying that, Your Honor.

THE COURT: All right. You can call Mr. Stone to the stand. I may still have questions for you after, since you entered your appearance in this case.

MR. ROGOW: I understand, Your Honor.

THE COURT: And I expect you to be able to answer my questions. All right. You can call your client to the stand. Understand that the United States will have the right to cross-examine him in the scope of his direct.

MR. ROGOW: I do. I do.

THE COURT: All right.

Remarkably, Rogow seems unprepared when ABJ tells him to go first.

MR. ROGOW: Thank you.

THE COURT: You may proceed.

MR. ROGOW: May I remain? I thought Your Honor was going to ask the questions.

THE COURT: You can start.

What happened next has been the focus of most of the coverage of this. Under Rogow’s direction, Stone tried to appear sorry. ABJ interjects, when Rogow tries to tie Stone’s livelihood to his speech, to challenge that.

Q. How could we be assured, Mr. Stone, if the Judge remains with the order that she had entered allowing you to speak freely, how can we be assured that there will not be a recurrence of something like this, or anything like this?

A. First of all, I’m very grateful to Your Honor for the initial order, because I do have to make a living. And I am sorry that I abused your trust. I —

THE COURT: Is anybody paying you to speak about this case?

THE DEFENDANT: No.

THE COURT: Okay. So an order that you couldn’t speak about this case wouldn’t affect your ability to make a living?

THE DEFENDANT: That is correct.

When Rogow finishes, ABJ then gets Stone on the record about several issues: who owns the Instagram account, what he claimed the crosshairs to be. Then she notes that Stone’s public comments about what he had done differed from what his lawyers had gotten him to sign in the apology they submitted to her. She gets Stone on the record trying to square what he had said publicly with what he and his lawyers had represented to her.

THE COURT: Well, according to the apology, the post was improper. What was improper about it?

THE DEFENDANT: My attorneys wrote that and I signed it because it was improper for me to criticize at all; I recognize that.

THE COURT: Well, at the time I imposed the order there were no restrictions on your talking about the case. So, my questions to you are not about the fact that you criticized the office of special counsel, that you criticized me, that you criticized an opinion in the case that I had written earlier. My question to you is what is it that you said was improper when you told me it was improper.

THE DEFENDANT: Again, I did not write that, I signed it on the advice of counsel. I would have —

THE COURT: Well, wait.

THE DEFENDANT: Yes.

THE COURT: You said to me, “I abused your trust.”

It goes on for a bit, leading up to ABJ getting epic rat-fucker Roger Stone to agree, under oath, that his post could have a malicious impact, regardless of what he himself claimed to intend by it.

THE COURT: Why is it consistent with how sorry you were, when you sent the apology, to continue for the next two days to speak publicly about the fact that you’re being treated unfairly in this situation as well, that it’s really this symbol, that it’s really that symbol, it’s the media going after you. How is that consistent with your telling me that you’re deeply and sincerely sorry?

THE DEFENDANT: Because that was a reference to what I believe was a media distortion of my intent. It was — I did not have a malicious intent, Your Honor.

THE COURT: Do you understand that what you did could have a malicious impact, notwithstanding your intent?

THE DEFENDANT: That’s why I abjectly apologized and I have no rationalization or excuse. I’m not seeking to justify it.

DC prosecutor Jonathan Kravis then gets Stone on the record about a bunch of things I’m sure the FBI is busy at work to prove to be false claims, such as who found the photo of ABJ with the crosshairs, which device was used to post it, which Proud Boy “volunteer” he worked with to make a threat against a judge. This is important, not just because the FBI is likely to find several issues about which Stone lied under oath yesterday (which if they can prove will provide immediate reason to deny Stone bail), but also because much of the eventual case (and much of what Mueller’s team spent a year getting all of Stone’s retinue on the record about) will be about proving what Stone personally tweeted or otherwise communicated, and what someone else did.

ABJ interjects a few times, including to call him on an attempt to use the passive voice to avoid saying something that the FBI will be able to prove is a lie.

THE COURT: When you say, “My phone is used,” who’s the subject of that sentence? The passive voice is not helpful. Who uses your phone to post?

THE DEFENDANT: All of the people who work for me.

She also gets Stone to contradict earlier testimony about who picked the photo. She gets Stone on the record affirming that he stated to InfoWars that the media was making him a target. She calls Stone on a bullshit claim about five people being too many to know who had access to his phone.

Stone really wasn’t prepared to be grilled by ABJ.

Just to be fair to Bruce Rogow, note that when ABJ asks Kravis for what the government wants, he doesn’t realize what she has just done, either. He still believed, at this point, that this was a question about the jury pool.

That conduct amounts to what the Court in United States versus Brown referred to as, quote, a desire to manipulate media coverage to gain favorable attention, unquote, thereby threatening to taint the jury pool. The defendant, even after the Instagram post was taken down, continued to give interviews where he reiterated the statements that appeared in the text of the message. He gave varying accounts of who was responsible for the post, what the symbol meant, where it came from, so on and so forth. And every time the defendant gave another one of those interviews, he continued to amplify the media coverage and increase the risk — increase the risk to the jury pool.

After Kravis argues jury pool jury pool jury pool, ABJ finally guides him to where she’s headed: the the safety of the community. Kravis doesn’t get the hint, and returns to the jury pool, before — lightbulb! — he notes that Stone’s comments might be deemed threatening and therefore appropriate for restrictions under the Bail Reform Act.

THE COURT: All right. Looking at the Bail Reform Act, however, under 18 U.S.C. Section 3142(g), when I’m considering imposing conditions on someone’s release, I’m supposed to consider the available information concerning the nature and circumstances of the charged offenses, the weight of the evidence against the defendant, the history and characteristics of the defendant, and the nature and seriousness of the danger to any person or to the community that would be posed by the defendant’s release, or release without certain conditions. Is there anything you would like to bring to my attention in that regard, assuming that I would be considering making any restrictions on speech a condition of his release?

MR. KRAVIS: Your Honor, the facts that I would bring to the Court’s attention are the facts and circumstances surrounding the content of the post, in that whatever the defendant’s testimony about his subjective intentions may have been, the result of his conduct was the wide dissemination of an image that could be construed, could reasonably be construed by people as a threatening image, and that introduces a new threat of — a new threat of taint to the — taint to the jury pool.

And because the conduct we’re talking about now, because the message we’re talking about now are not just messages about proclaiming innocence or articulating a defense, but are messages that could be construed as threatening, the government believes that the restriction on extrajudicial statements would be appropriate under the Bail Reform Act.

ABJ gets Rogow on the record once more to walk him through how Stone’s actions prove his own claims from last week about publicity to be false.

That’s when ABJ takes a break, then comes back and imposes a gag not just to ensure her ability to seat a jury, but to preserve the safety of the community. She presents Stone’s speech, rightly, as an incitement (and neatly blames the wingnuts he hangs out with for any potential violence).

Under Section 3142(g), in determining whether there are conditions that will reasonably assure the safety of other persons or the community, I’m supposed to take into account a number of things, including the nature and circumstances of the charged offenses, the weight of the evidence against the defendant, the history and characteristics of the defendant, and the nature and seriousness of the danger to any person, or to the community, that would be posed by the defendant’s release. In connection with that assessment, you can’t overlook the fact that this indictment does not charge the defendant with financial or regulatory irregularities in connection with some business deal a long time ago. It’s not even limited to the allegations that he lied to the United States Congress. It specifically charges him with threatening witnesses, within the past year. Now, it’s true those allegations have yet to be proven. But for purposes of Section 3142, the evidence detailed in the indictment alone is quite compelling. And the evidence of the past few days indicates that this defendant has not been chastened by the pendency of those charges, and that in connection with this matter, he has decided to pursue a strategy of attacking others.

[snip]

What concerns me is the fact that he chose to use his public platform, and chose to express himself in a manner that can incite others who may feel less constrained. The approach he chose posed a very real risk that others with extreme views and violent inclinations would be inflamed.

Importantly, ABJ uses Stone’s own testimony to emphasize that he chose to use a threatening image, and he’s an expert so he surely didn’t do it by accident.

The defendant himself told me he had more than one to choose from. And so what he chose, particularly when paired with the sorts of incendiary comments included in the text, the comments that not only can lead to disrespect for the judiciary, but threats on the judiciary, the post had a more sinister message. As a man who, according to his own account, has made communication his forté, his raison d’être, his life’s work, Roger Stone fully understands the power of words and the power of symbols. And there’s nothing ambiguous about crosshairs.

So here’s what she did.

First, in spite of the fact that both the prosecution and the defense were treating this as primarily a jury pool issue (which ABJ did return to and establish in the record), she instead — from the start — laid the ground work to impose a gag because Stone’s public comments pose a threat to the community, giving her the authority to impose the gag under the Bail Reform Act. She makes clear that whether or not he intends violence, those around him might.

In the process, she did a number of things:

  • Impose a gag that a Twitter account bearing Stone’s name may have violated within an hour
  • Get Rogow and Stone on the record explaining why the terms of her gag won’t impact Stone’s ability to make a living, undercutting a significant part of the First Amendment claim they’ve been making
  • Provide a basis for the gag that Rogow did not anticipate, which may be far harder — and politically more difficult — to challenge
  • Provide an opportunity for both the prosecution and herself to catch Stone in multiple sworn lies (which, again, I’m sure the FBI is busy at work proving now), which if charged as perjury would lead to Stone’s immediate jailing

Here’s why, I think, this was allowed to happen. For Stone’s entire life, the press has coddled Stone, treating him as a nifty character whose toxic speech doesn’t damage society. ABJ was having none of that, and used both Rogow’s position as an officer of the court and Stone’s insane willingness to take the stand to get them to acknowledge that his speech is toxic, that it does pose a threat to society. Stone presumably wasn’t prepared for that because no one has called him on his toxic speech before.

If Stone’s lucky, the now much harder to challenge gag will be the only detrimental outcome from yesterday’s hearing and he’ll avoid perjury charges.

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. 

Four Sentences: What the Legal System Has Said about the Suspect Loyalty of Trump’s Aides

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In an attempt to undercut Andrew McCabe’s publicity tour, the President is on a tear, attacking what he claims was McCabe and Rod Rosenstein’s “treasonous” insurance policy.

We’re at a point where both sides are making claims of treason, which only serves to feed the intensity of both sides, without convincing Trump’s supporters (and other denialists) that the concerns about Trump’s loyalty — and therefore the investigation that McCabe opened into him — are well-grounded.

But there are neutral third party observers here, weighing the claims of loyalty. Four different sentencing processes have sided with those questioning the loyalty of Trump and those close to him.

George Papadopoulos

In the first two cases where Trump flunkies have been sentenced, the flunkies themselves have pointed to how their own misplaced loyalties caused them to commit crimes. In George Papadopoulos’ sentencing memo, he attributed the actions that led to his prosecution — his attempts to broker a meeting between Putin and Trump — to a desire to curry Trump’s favor.

Eager to show his value to the campaign, George announced at the meeting that he had connections that could facilitate a foreign policy meeting between Mr. Trump and Russian President Vladimir Putin. While some in the room rebuffed George’s offer, Mr. Trump nodded with approval and deferred to Mr. Sessions who appeared to like the idea and stated that the campaign should look into it.

George’s giddiness over Mr. Trump’s recognition was prominent during the days that followed the March 31, 2016 meeting. He had a sense of unbridled loyalty to the candidate and his campaign and set about trying to organize the meeting with President Putin.

Papadopoulos says he lied to the FBI out of loyalty to Trump.

Mr. Papadopoulos misled investigators to save his professional aspirations and preserve a perhaps misguided loyalty to his master.

[snip]

George explained that he was in discussions with senior Trump administration officials about a position and the last thing he wanted was “something like this” casting the administration in a bad light. The agents assured him that his cooperation would remain confidential.

More specifically, he lied to avoid tainting the Trump campaign with any tie to Russia.

George found himself personally conflicted during the interrogation as he felt obligated to assist the FBI but also wanted to distance himself and his work on the Trump campaign from that investigation. Attempting to reconcile these competing interests, George provided information he thought was important to the investigation while, at the same time, misleading the agents about the timing, nature, and extent of his contacts with Professor Mifsud, Olga, and Ivan Timofeev. In his answers, George falsely distanced his interactions with these players from his campaign work. At one point, George told the agents that he did not want to “get too in-depth” because he did not know what it would mean for his professional future. He told the agents he was “trying to help the country and you guys, but I don’t want to jeopardize my career.”

George lied about material facts central to the investigation. To generalize, the FBI was looking into Russian contacts with members of the Trump campaign as part of its larger investigation into Russian interference with the 2016 election. This issue had dominated the news for several months with stories concerning Carter Page and Paul Manafort. The agents placed this issue squarely on the table before George and he balked. In his hesitation, George lied, minimized, and omitted material facts. Out of loyalty to the new president and his desire to be part of the administration, he hoisted himself upon his own petard.

I have argued that this memo served the dual purpose of accepting responsibility while signaling others and reaffirming his loyalty to Trump, and I stand by that. Given his efforts to reverse his sentence, Papadopoulos show of contrition at his hearing was just that, a ruse. But it was one of the things that convinced Judge Randolph Moss to impose just two weeks. Another, however, were the comments of Papadopoulos’ lawyer, Thomas Breen, who argued Trump had obstructed the Mueller investigation far more than his client had.

Trump, Breen said, “hindered this investigation more than George Papadopoulos ever could,” by calling the FBI’s Russia inquiry a “witch hunt” and casting doubt on credible allegations of wrongdoing by his associates.

“The president of the United States, the commander in chief, told the world that this was fake news,” Breen said, contrasting this with Mueller’s “professional” and “well-prepared” team.

In imposing prison time, Moss emphasized that Papadopoulos lied about a manner of grave importance.

The judge noted that most defendants convicted on a false-statement charge don’t get any prison time, but he said he considered the Mueller investigation “a matter of enormous importance.” Moss, an appointee of President Barack Obama who served as a top Justice Department official under President Bill Clinton, described the inquiry as an attempt to investigate an “effort to interfere in our democracy.”

“It’s important that the public know there are real consequences when you mislead and tell lies to the FBI about a matter of grave national importance,” he said.

[snip]

Breen said his client was trying to preserve his job prospects in the Trump administration, but Moss told the lawyer that those were “not noble reasons to tell a lie.”

“This was fairly calculated,” the judge said. “It took six months for Mr. Papadopoulos to correct the record.”

So Papadopoulos’ lawyers agreed his loyalties were misplaced and Judge Moss judged that Papadopoulos’ lies pertained to something that strikes at the integrity of our democracy.

Michael Cohen

As Papadopoulos did, Michael Cohen attributed his obstruction to his blind loyalty to Trump and a desire to sustain Trump’s false narrative denying ties to Russia.

I made these misstatements to be consistent with Individual 1’s political messaging and out of loyalty to Individual 1.

In his cynical, Lanny Davis-crafted statement at sentencing, Cohen talked about how he put loyalty to Trump over that to his family, ending with an apology to the US.

 I blame myself for the conduct which has brought me here today, and it was my own weakness, and a blind loyalty to this man that led me to choose a path of darkness over light. It is for these reasons I chose to participate in the elicit act of the President rather than to listen to my own inner voice which should have warned me that the campaign finance violations that I later pled guilty to were insidious.

Recently, the President Tweeted a statement calling me weak, and he was correct, but for a much different reason than he was implying. It was because time and time again I felt it was my duty to cover up his dirty deeds rather than to listen to my own inner voice and my moral compass. My weakness can be characterized as a blind loyalty to Donald Trump, and I was weak for not having the strength to question and to refuse his demands.

[snip]

I stand behind my statement that I made to George Stephanopoulos, that my wife, my daughter, my son have my first loyalty and always will. I put family and country first. My departure as a loyal soldier to the President bears a very hefty price.

For months now the President of the United States, one of the most powerful men in the world, publicly mocks me, calling me a rat and a liar, and insists that the Court sentence me to the absolute maximum time in prison. Not only is this improper; it creates a false sense that the President can weigh in on the outcome of judicial proceedings that implicate him.

[snip]

I want to apologize to the people of the United States. You deserve to know the truth and lying to you was unjust.

In sentencing Cohen, Judge William Pauley pointed to how his ties to Trump and the access that gave him led him to lose his moral compass.

[H]is entire professional life apparently revolved around the Trump organization. He thrived on his access to wealthy and powerful people, and he became one himself.

[snip]

But somewhere along the way Mr. Cohen appears to have lost his moral compass and sought instead to monetize his new-found influence. That trajectory, unfortunately, has led him to this courtroom today.

Cohen’s guilty plea — particularly the way he tried to cabin off cooperation implicating his family — is cynical as hell. But to the extent he is willing to help prosecutors, it entails being treated as a traitor by the President.

Mike Flynn

The other two Trump flunkies who’ve gotten close to sentencing are even more striking — in part because they have been less successful at crafting a fiction about setting their loyalty to Trump or other paymasters aside.

Flynn was set to get probation until he and his lawyer used their own sentencing memo to continue the line all the other loyal Trump flunkies have, suggesting that the investigation was illegitimate.

There are, at the same time, some additional facts regarding the circumstances of the FBI interview of General Flynn on January 24, 2017, that are relevant to the Court’s consideration of a just punishment.

At 12:35 p.m. on January 24, 2017, the first Tuesday after the presidential inauguration, General Flynn received a phone call from then-Deputy Director of the FBI, Andrew McCabe, on a secure phone in his office in the West Wing.20 General Flynn had for many years been accustomed to working in cooperation with the FBI on matters of national security. He and Mr. McCabe briefly discussed a security training session the FBI had recently conducted at the White House before Mr. McCabe, by his own account, stated that he “felt that we needed to have two of our agents sit down” with General Flynn to talk about his communications with Russian representatives.21

Mr. McCabe’s account states: “I explained that I thought the quickest way to get this done was to have a conversation between [General Flynn] and the agents only. I further stated that if LTG Flynn wished to include anyone else in the meeting, like the White House Counsel for instance, that I would need to involve the Department of Justice. [General Flynn] stated that this would not be necessary and agreed to meet with the agents without any additional participants.”22

Less than two hours later, at 2:15 p.m., FBI Deputy Assistant Director Peter Strzok and a second FBI agent arrived at the White House to interview General Flynn.23 By the agents’ account, General Flynn was “relaxed and jocular” and offered to give the agents “a little tour” of the area around his West Wing office. 24 The agents did not provide General Flynn with a warning of the penalties for making a false statement under 18 U.S.C. § 1001 before, during, or after the interview. Prior to the FBI’s interview of General Flynn, Mr. McCabe and other FBI officials “decided the agents would not warn Flynn that it was a crime to lie during an FBI interview because they wanted Flynn to be relaxed, and they were concerned that giving the warnings might adversely affect the rapport,” one of the agents reported.25 Before the interview, FBI officials had also decided that, if “Flynn said he did not remember something they knew he said, they would use the exact words Flynn used, . . . to try to refresh his recollection. If Flynn still would not confirm what he said, . . . they would not confront him or talk him through it.”26 One of the agents reported that General Flynn was “unguarded” during the interview and “clearly saw the FBI agents as allies.”27

While Emmet Sullivan — ever on guard against prosecutorial misconduct — might have done so anyway, this led the judge to ask for the paperwork behind Flynn’s claims. Which in turn led to the production of really damning details of Flynn’s lies. That, in turn, led Sullivan to hesitate before sentencing Flynn, in part because the “great deal of nonpublic information in this case” he read led him to grow disgusted about what Flynn had done. Sullivan, as the first judge to read in detail about Mueller’s underlying investigation, said some absolutely remarkable things (and note, at least some of this language pertains to Flynn selling out to Turkey, not Russia).

I’m going to also take into consideration the aggravating circumstances, and the aggravating circumstances are serious. Not only did you lie to the FBI, but you lied to senior officials in the Trump Transition Team and Administration. Those lies caused the then-Vice President-Elect, incoming Chief of Staff, and then-Press Secretary to lie to the American people. Moreover, you lied to the FBI about three different topics, and you made those false statements while you were serving as the National Security Advisor, the President of the United States’ most senior national security aid. I can’t minimize that.

Two months later you again made false statements in multiple documents filed pursuant to the Foreign Agents Registration Act. So, all along you were an unregistered agent of a foreign country, while serving as the National Security Advisor to the President of the United States.

[snip]

COURT: All right. I really don’t know the answer to this question, but given the fact that the then-President of the United States imposed sanctions against Russia for interfering with federal elections in this country, is there an opinion about the conduct of the defendant the following days that rises to the level of treasonous activity on his part?

[snip]

I mean, arguably, that undermines everything this flag over here stands for (indicating). Arguably, you sold your country out. The Court’s going to consider all of that. I cannot assure you that if you proceed today you will not receive a sentence of incarceration. But I have to also tell you that at some point, if and when the government says you’ve concluded with your cooperation, you could be incarcerated.

It could be that any sentence of incarceration imposed after your further cooperation is completed would be for less time than a sentence may be today. I can’t make any guarantees, but I’m not hiding my disgust, my disdain for this criminal offense.

So in this case, Flynn’s bid to discredit the investigation instead led to remarkable comments about how Flynn’s underlying crimes — the ones he lied to cover-up — amount to selling out his country.

Paul Manafort

Which brings us to Paul Manafort, who is currently facing what amount to be several life sentences because he refused to cooperate, even after promising to do so, against Trump and his Ukrainian and Russian paymasters. As I have noted, Manafort’s lies served to avoid giving the government evidence that Trump conspired with Russia to get elected.

But don’t take my word for it. In announcing her ruling in the breach determination last week, Amy Berman Jackson paid special attention to Manafort’s lies about Konstantin Kilimnik. The most important lie, it seems, pertains to Manafort sharing of detailed polling data with Kilimnik at a meeting where they also discussed sanctions relief in the guise of a Ukrainian peace detail. The description of whom Manafort intended that data to be shared with is redacted. But ABJ moved directly from describing the intended recipients to judging that sharing the data amounts to a link with Russia.

Also, the evidence indicates that it was understood that [redacted] would be [redacted from Kilimnik [redacted] including [redacted], and [redacted]. Whether Kilimnik is tied to Russian intelligence or he’s not, I think the specific representation by the Office of Special Counsel was that he had been, quote, assessed by the FBI, quote, to have a relationship with Russian intelligence, close quote. Whether that’s true, I have not been provided with the evidence that I would need to decide, nor do I have to decide because it’s outside the scope of this hearing. And whether it’s true or not, one cannot quibble about the materiality of this meeting.

[snip]

I don’t think that’s a fair characterization of what was said. The intelligence reference was just one factor in a series of factors the prosecutor listed. And the language of the appointment order, “any links,” is sufficiently broad to get over the relatively low hurdle of materiality in this instance, and to make the [redacted] Kilimnik and [redacted] material to the FBI’s inquiry, no matter what his particular relationship was on that date.

She continued by saying that she didn’t even have to determine whether — as the government claims — Kilimnik has active ties to GRU. Whatever Kilimnik’s ties to Russian military intelligence, ABJ still considers his relationship with Manafort to implicate coordination with the Russian government.

I also want to say we’ve now spent considerable time talking about multiple clusters of false or misleading or incomplete or needed-to-be-prodded-by-counsel statements, all of which center around the defendant’s relationship or communications with Mr. Kilimnik. This is a topic at the undisputed core of the Office of Special Counsel’s investigation into, as paragraph (b) of the appointment order put it, Any links and/or coordination between the Russian government and individuals associated with the campaign.

Mr. Kilimnik doesn’t have to be in the government or even be an active spy to be a link. The fact that all of this is the case, that we have now been over Kilimnik, Kilimnik, and Kilimnik makes the defense argument that I should find the inaccurate statements to be unintentional because they’re all so random and disconnected, which was an argument that was made in the hearing, is very unpersuasive.

ABJ’s most striking comments, however, came in language introducing why, even though she didn’t find that Mueller’s team had proven Manafort’s lies about conspiring with Kilimnik to be proven by a preponderance of the evidence, it nevertheless was obvious that what Manafort was trying to do in disclaiming a conspiracy with Kilimnik was to “shield his Russian conspirator.”

Mr. Manafort doesn’t just say to the agents, Kilimnik doesn’t believe he was pressuring the witness, or Kilimnik didn’t think he was suborning perjury, he didn’t intend to violate U.S. law, he makes the affirmative assertion that Kilimnik believed the project was a European project, when Manafort plainly knew that Kilimnik knew it wasn’t and the documents plainly reflect that it wasn’t, and that was the basis for the conspiracy count to which he pled guilty in the first place.

To me, this is definitely an example of a situation in which the Office of Special Counsel legitimately concluded he’s lying to minimize things here, he’s not being forthcoming, this isn’t what cooperation is supposed to be. This is a problematic attempt to shield his Russian conspirator from liability and it gives rise to legitimate questions about where his loyalties lie.

We have yet to get Mueller’s sentencing memo in the DC case or ABJ’s response to any claims they may make about why Manafort chose to face a life sentence rather than tell the truth about his conspiracies with Konstantin Kilimnik.

But it’s pretty clear that ABJ believes Manafort’s lies suggest he has suspect loyalties.

Four times so far in this investigation, Trump’s aides have started the sentencing process for their crimes designed to obstruction Robert Mueller’s investigation. All four times, before four different judges, their misplaced loyalty to Trump above country has come up. And with both Flynn and Manafort — where the judges have seen significant amounts of non-public information about the crimes they lied to cover-up — two very reasonable judges have raised explicit questions about whether Trump’s aides had betrayed their country.

Trump wants this to be a case of contested claims of betrayal. But the judges who have reviewed the record have used striking language about who betrayed their country.

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.