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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. 

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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. 

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Roger Stone and the Dozens of Search Warrants on Accounts Used to Facilitate the Transfer and Promotion of Stolen Democratic Emails

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In response to Roger Stone’s bid to get a new judge, the government has submitted a filing explaining why his case is related to the GRU indictment. It explains that Stone’s alleged false statements pertained to an investigation into links between the Russians who stole Democratic emails, entities who dumped them, and US persons like Stone:

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

More interestingly, it makes clear that Stone’s communications “with Guccifer 2.0 and with Organization 1” were found in some of the accounts used to transfer and promote the stolen emails.

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

To be clear: We know that Stone had (innocuous) DMs with both Guccifer 2.0 and WikiLeaks. So this passage is not necessarily saying anything new. But given that Stone’s indictment obscures precisely who his and Jerome Corsi’s go-between with WikiLeaks is, it suggests there may be more direct Stone communications of interest.

Stone will get a sealed description of what those warrants are and — eventually — get the warrants themselves in discovery.

The relevant search warrants, which are being produced to the defendant in discovery in this case, are discussed further in a sealed addendum to this filing.

Meanwhile, Amy Berman Jackson has issued a very limited gag in Stone’s case, prohibiting lawyers from material comments on the case, but gagging Stone only at the courthouse. That said, her gag includes lawyers for witnesses, which would seem to include Jerome Corsi lawyer Larry Klayman.

Counsel for the parties and the witnesses must refrain from making statements to the media or in public settings that pose a substantial likelihood of material prejudice to this case

ABJ does give Stone the following warnings to shut up, however.

This order should not be interpreted as modifying or superseding the condition of the defendant’s release that absolutely prohibits him from communicating with any witness in the case, either directly or indirectly. Nor does this order permit the defendant to intimidate or threaten any witness, or to engage or attempt to engage in any conduct in violation of 18 U.S.C. §1512.

Finally, while it is not up to the Court to advise the defendant as to whether a succession of public statements would be in his best interest at this time, it notes that one factor that will be considered in the evaluation of any future request for relief based on pretrial publicity will be the extent to which the publicity was engendered by the defendant himself.

So the biggest news here might be that Larry Klayman has to shut up.

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. 

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The Unseen Aspects of Paul Manafort’s Lies and Truth-Telling Are as Telling as the Ones We’ve Seen

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As noted, yesterday Judge Amy Berman Jackson ruled that Mueller’s team had proven Paul Manafort lied in three of the five areas they accused him of lying about:

  • The kickback scheme via which he got paid
  • Meetings with Konstantin Kilimnik to share polling data and discuss a “peace” deal with Ukraine
  • The role of a 7-character named person in an attempt to salvage Trump’s campaign being investigated in another district

The ruling is damning, and Manafort now may face what amounts to a life sentence (though, in her order ABJ noted that whether she’ll give him credit for acceptance of responsibility at sentencing depends “on a number of additional factors”).

Yet, in spite of the mounting evidence that Manafort shared polling data at a meeting where he also discussed a Ukrainian peace deal (a backdoor way of giving Russia sanctions relief), in spite of how damning this breach discussion has been, ABJ’s ruling is still just one step in an ongoing process.

I say that for several reasons that have to do with what we didn’t see as part of this breach determination.

We’re only seeing half of Manafort’s cooperation

First, we’re only seeing material relating to half of Manafort’s cooperation. In his declaration on the breach determination, FBI Agent Jeffrey Weiland described Manafort’s cooperation to include 14 sessions:

  • 3 pre-plea proffer sessions: September 11, 12, and 13
  • 9 debriefing sessions: September 20, 21, 25, 26, 27, October 1, October 5, October 11, and October 16
  • 2 grand jury appearances: October 26 and November 2

If I’ve tracked everything properly, the descriptions of Manafort’s lies only include material from some of those sessions:

  • 3 pre-plea proffer sessions: September 11, 12, and 13
  • 5 debriefing sessions: September 20, 21, October 1, October 5, and October 16
  • 1 grand jury appearance: October 26

That means there are three debriefing sessions and a grand jury appearance we haven’t heard anything about yet:

  • 4 debriefing sessions: September 25, 26, 27, and October 11
  • 1 grand jury appearance: November 2

In the breach hearing, Richard Westling claimed that the material we’ve seen constitutes just a “small set” of the topics covered in Manafort’s cooperation and he says some of the other topics were “more sensitive topics.”

WESTLING: And I think, you know, the last point that I would make is that given that relatively small set of areas where this occurred, whether even the allegations are being made, you know, we note that there’s not really a lot to explain. There’s no pattern, there’s no clear motive that would suggest someone who was trying to intentionally not share information. And many of the more sensitive topics that we’re aware of from a — all of us paying attention to what’s gone in the news cycle over the last many months, you know, are things where these issues didn’t come up, where there wasn’t a complaint about the information Mr. Manafort provided. And so we think that’s important context as we get started here today.

THE COURT: Do I have — and I don’t think I need them for today, but I’m certain that what you just said is also going to be a part of your acceptance of responsibility argument and argument at sentencing. Do I have the 302s from 12 days of interviews? Do I have everything, or do I only have what was given to me because it bore on the particular issues that I’m being asked to rule on today?

MR. WEISSMANN: Judge, you do not have everything. We are happy to give you the — all of the 302s. We just gave you — you have, I think, the majority of them, but not all of them.

THE COURT: Okay. And I don’t know that — if I need them. But, it’s hard to assess — and I certainly don’t think they should be a public part of any sentencing submission. But, if you want me to put this in context of more that was said, it helps to have it.

Now, it’s possible that Manafort did tell the truth about these more sensitive topics. It’s possible that (for example, with regards to Trump’s foreknowledge of the June 9 meeting), Manafort lied but prosecutors don’t have proof he did. Or it’s possible they know he lied about other issues but for investigative reasons, don’t want to share the proof they know he lied.

One of the other topics Manafort would have been asked about — which Westling’s reference to “what’s gone in the news cycle over the last many months” may reference — pertains to Roger Stone’s actions.

ABJ asked for — and presumably has or will obtain — the rest of the 302s from Manafort’s cooperation, so she may end up agreeing with Manafort’s lawyers that some of his cooperation was quite valuable.

Mueller was interested in Manafort’s cooperation, in part, to obtain intelligence

As I’ve noted before, Andrew Weissmann described Manafort’s cooperation to be somewhat unusual for the extent to which Mueller was seeking intelligence, rather than criminal evidence. Though he makes clear that that was true, as well, of Rick Gates’ early cooperation.

[T]here’s enormous interest in what I will call — for lack of a better term — the intelligence that could be gathered from having a cooperating witness in this particular investigation

[snip]

And with Mr. Gates, we also wanted to make sure that we could get information, and we thought that there was — I think there was certainly a significant issue. And we dealt with it by having the defendant plead to something in addition to take — to have the ramification for it. But that is to show, I think, an example of wanting the intelligence, but dealing with what we considered to be, you know, unacceptable behavior from the Government, particularly from somebody whose information we would rely on, and potentially ask the jury to rely on.

So we may never see a great deal of what Manafort was asked about.

Mueller is still protecting an ongoing investigation

That said, Mueller is still protecting both his and the other DOJ ongoing investigation. We know what Mueller is protecting from the redactions in the transcript.

ABJ noted that much of what they discussed at the breach hearing could be unsealed, while noting that Mueller felt more strongly about keeping some things secret.

I think a large portion of what we discussed could be public. I think there are certain issues where you probably only need to redact out names and turn them back into entities. And then there are may be one or two issues where we’re really talking about something that was completely redacted at every point prior to this and will continue to be. And, hopefully, you’ll both be on the same page about that with respect to what of the investigation is not yet public. I think the Office of Special Counsel has the stronger point of view about that.

Certainly, all the names had to be redacted, under DOJ guidelines prohibiting the publication of anyone’s name who has not been charged. Likewise, the other investigation is not Mueller’s to reveal (in any case, it seems to be still active, even if Manafort’s refusal to cooperate may have protected the target of it).

But more of the rest of the discussion could have been unsealed if Mueller didn’t have ongoing interests in the topics. Those topics include Manafort’s ongoing communications with the Administration, Ukrainian peace deal/sanctions relief, and his sharing of polling data (though there’s one reference to sharing polling data on page 19 that may have gotten missed by the censors). Mueller redacted those things even though Weissmann makes clear that they believe the polling data goes to the core of what they are investigating.

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 lines redacted] is in the core of what it is that the special counsel is supposed to be investigating.

Note his use of the present progressive. They’re still trying to answer the question about whether that August 2 amounts to witting conspiracy with Russia.

Mueller is still sitting on information about the shared polling data

It may well be that, given Manafort’s refusal to cooperate on this issue, Mueller will never be able to charge Trump’s campaign for sharing polling data with Russia in the context of sanctions relief.

But they are sitting on more information than came out publicly in this breach discussion. Starting on page 93 of the transcript, ABJ, on her own, brings up other information she has seen, that pertains to the topic.

THE COURT: I need to ask the Office of Special Counsel about something ex parte because — and so I apologize for that, but I need to do that. And it may be after I talk to them, they tell me there’s no problem with sharing it with you. But I have received information in this case, in this binder, and in other means, and I just want to make sure I understand something. And so, I can’t — I need to ask —

MR. DOWNING: We would object. But we don’t know he —

THE COURT: I note your objection. And I will deem your objection also to be a request that what we’re about to discuss be revealed to you. And that will be the first thing I’m going to ask. And we can do it at the end, after we’re done, or you can just have him come to the bench for a minute.

The ex parte discussion on this topic is fairly short. But after the lunch break, Weissmann tells ABJ that the material she was thinking of remains redacted. But he does point her to two Gates 302s from early in his cooperation that seem to provide some of the same information.

THE COURT: All right. Let me start with you, Mr. Weissmann. Is there anything further you can add to what we talked about, that you can add publicly?

MR. WEISSMANN: Yes. Yes, Your Honor. So, we haven’t finished our review, but we believe that the material that you asked about was redacted.

THE COURT: Okay.

MR. WEISSMANN: However, I would like to direct your attention to two exhibits in the record. If you recall, I mentioned that I recalled that Mr. Gates had, very early on in his cooperation, given us information about [redacted]. And there are two 302s that are dated in, I believe, both in January of 2018. So before he actually pled guilty, so in connection with his proffers. So, the first one is Exhibit 222. And if you look at page 17 of that exhibit, there’s a long explanation of communications with [redacted] that refer to [redacted] at the direction of Mr. Manafort. And then if you look — and that is dated January 31st, 2018. And that was, of course, provided to counsel in connection with the Eastern District of Virginia trial. And Exhibit 236, and I believe I referred you previously to page 3, and I would also refer you to page 5. Both of those refer to [redacted] and also refer to the discussions of the — discussions of [redacted] at the August 2nd, 2016 meeting.

THE COURT: All right. I will look at all of that. So for right now, I’m going to leave the little conversation that we had ex parte, ex parte with your objection noted.

MR. WEISSMANN: Judge, we will continue to look to see if there is any portion that was unredacted to confirm that.

Given the issues she has presided over, this may pertain to one of the search warrant affidavits that Manafort tried to get completely unsealed last year, but which ABJ suggested pertained to other people.

In any case, there’s more on the sharing of polling data that ABJ knows about, this is relevant to its importance, but that does not appear in the unsealed transcript.

Mueller didn’t reveal all the evidence of Manafort’s attempts to contact the Administration

Finally, there appear to be communications between Manafort and Administration officials that Mueller did not release as part of this process. The government stated that clearly in a footnote (on page 27) of its breach declaration.

This is not a complete listing of such contacts Manafort had with Administration officials. Further, for the purpose of proving the falsity of Manafort’s assertions in this section, the government is not relying on communications that may have taken place, with Manafort’s consent, through his legal counsel.

And, in a bid to refute Manafort’s claim, in the redaction fail filing, that, “Mr. Manafort was well aware that the Special Counsel’s attorneys and investigators had scrutinized all of his electronic communications” because “Mr. Manafort voluntarily produced numerous electronic devices and passwords at the request of the Government,” Agent Weiland states that the FBI had found more than 10 devices or documents for which Manafort hadn’t shared a password.

Defendant said in his pleading that he has provided electronic to the government. However, although he has provided some electronic data, passwords, and documents, in more than ten instances he did not provide passwords to access his electronic communications, thumb drives, or documents.

Mueller’s team remains coy about how many of those 10 accounts, thumb drives, or documents they’ve been able to access without his assistance.

And Greg Andres provides some hints about what those other conversations involve: Manafort providing information about the investigation.

MR. ANDRES: Sure. Judge, throughout the interviews with Mr. Manafort and some of the issues we’ve discussed today, you see that he constantly either minimizes the information he has about the administration or any contact with the administration. So there’s an issue whether or not during his cooperation he’s communicating with [15 character redaction] or providing information about the questions or other things that are happening in the special counsel investigation, whether he’s sharing that with other people. And this is another example of Mr. Manafort —

THE COURT: That hasn’t been given to me as we’re troubled by this or he wasn’t truthful about that, so I don’t see how to put this in the context of that because I don’t know about that.

MR. ANDRES: Well, so for example, in the No. 4, the one that Mr. Manafort — that Mr. Weissmann just talked about with respect to the [redacted, other investigation], you see Mr. Manafort changing his story so as not to implicate either [redacted] or someone in [redacted]. I think, with respect to this issue, again, Mr. Manafort is trying to distance himself from the administration and saying he’s not having contact with the administration at a time when he’s under at least one indictment.

THE COURT: But you’re not suggesting right now that there’s more information in here about other efforts to distance himself from the administration or to deny a relationship or to deny reporting back to them?

MR. ANDRES: We’re not relying on any other evidence of that issue.

Particularly given that Manafort, between his early September proffers and his October 5 lies about the other investigation, managed to match his own testimony to that of the Trump associate being targeted in it, those communications may even date as recently as last fall (though that would mean he was communicating with the Administration from jail).

The fact that Mueller has other communications between Manafort and the Administration — but chose not to bolster their argument that Manafort lied about ongoing communications with the White House — suggests protecting what he wants to do with those communications is more valuable than convincing ABJ that Manafort lied about this topic (and, indeed, this is one of the two topics where she did not rule for the government).

For all the debate about whether Mueller is almost done or not, the things we didn’t learn about during this breach discussion are just as interesting as the things we did learn about. They suggest that all the discussion about cooperation deals (including my own) often forgets that Mueller is seeking both criminal evidence and intelligence on what the Russians were doing. They also suggest that Manafort may have provided testimony that bears on other parts of the investigation we’ve recently learned about (which might include Stone, or the Trump Tower deal) — but we can’t be sure whether Manafort told the truth, or whether he lied but Mueller either can’t prove or doesn’t want to reveal that he knows Manafort lied. They suggest that Mueller would still like to make the case, in whatever form, that Manafort intentionally gave the Russians polling data with the understanding that he’d push a Ukrainian peace deal that amounted to sanctions relief — but Manafort’s refusal to cooperate on this point might thwart that effort. Finally, they make it clear that Manafort remained a part of an effort to obstruct this investigation, including via means that bypassed the Joint Defense Agreement Trump has exploited.

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. 

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Amy Berman Jackson Rules that Manafort Lied about Possible Criminal Activity Related to Donald Trump’s Campaign

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Amy Berman Jackson has issued her ruling on whether Paul Manafort breached his plea agreement. She ruled that, for the purposes of acceptance of responsibility, Mueller’s team proved he had lied on three of the five topics they laid out: about his kickback scheme with a SuperPAC that was probably illegally coordinating with Trump’s campaign, about another investigation pertaining to someone’s efforts to save Trump’s candidacy, and when Manafort claimed he didn’t hand Konstantin Kilimnik polling data on the same day they talked about sanctions relief.

I. OSC has established by a preponderance of the evidence that defendant intentionally made false statements to the FBI, the OSC, and the grand jury concerning the payment by Firm A to the law firm, a matter that was material to the investigation. See United States v. Moore, 612 F.3d 698, 701 (D.C. Cir. 2010).

II. OSC has failed to establish by a preponderance of the evidence that on October 16, 2018, defendant intentionally made false statements concerning Kilimnik’s role in the obstruction of justice conspiracy.

III. OSC has established by a preponderance of the evidence that the defendant intentionally made multiple false statements to the FBI, the OSC, and the grand jury concerning matters that were material to the investigation: his interactions and communications with Kilimnik.

IV. OSC has established by a preponderance of the evidence that on October 5, 2018, the defendant intentionally made false statements that were material to another DOJ investigation.

V. OSC has failed to establish by a preponderance of the evidence that on October 16, 2018, defendant intentionally made a false statement concerning his contacts with the administration.

That she didn’t rule that he had lied on the other two doesn’t help him much. While he tried to walk back his admission that he conspired with suspected GRU-asset Konstantin Kilimnik on witness tampering last year, ABJ effectively just ruled his efforts to walk back that guilty plea were only half-hearted.

And while prosecutors didn’t prove he lied about ongoing communications with Trump, they also didn’t show all their cards there, withholding some of the other communications they know about. Effectively, though, ABJ has just ruled that Manafort breached his plea agreement because he continues to lie about possible criminal activity related to Trump’s campaign.

Mind you, Manafort may not mind this outcome, much. After all, according to Andrew Weissmann, he lied (especially about sharing polling data) because he figured it was his best hope for a pardon. Admitting to the full details about the polling data he shared with the intent it be passed on to his Ukrainian and Russian paymasters, according to Weissman, “would have, I think, negative consequences in terms of the other motive that Mr. Manafort could have, which is to at least augment his chances for a pardon.”

So he may be sentenced to 20 years next month, but so long as he continues to lie about the crimes committed during Trump’s campaign, he might get a pardon.

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On SSCI’s Investigation: Manafort “Conspired” Whether or Not Trump Also “Colluded”

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I’d like to point out something about this NBC report headlined, “Senate has uncovered no direct evidence of conspiracy between Trump campaign and Russia,” but instead showing,

investigators disagree along party lines when it comes to the implications of a pattern of contacts they have documented between Trump associates and Russians — contacts that occurred before, during and after Russian intelligence operatives were seeking to help Donald Trump by leaking hacked Democratic emails and attacking his opponent, Hillary Clinton, on social media.

I sometimes beat up on Ken Dilanian and I don’t mean to do so here. Putting the headline and lead aside, his report shows the disagreement here, and he even references Mark Warner’s recent focus on Paul Manafort’s sharing of polling data with Konstantin Kilimnik (though it’s not clear he asked Richard Burr about the report).

After it recently emerged that Trump campaign chairman Paul Manafort shared campaign polling data with a man the FBI says is linked to Russian intelligence, Warner called that the most persuasive evidence yet of coordination.

“This appears as the closest we’ve seen yet to real, live, actual collusion,” he said on CNN.

No evidence has emerged, however, linking the transfer of polling data to Trump.

Natasha Bertrand says the report soft-pedals the Democrats’ belief.

Senate Intelligence Committee aide tells me, re: NBC story, that right now there is “a common set of facts” that the panel is working with, “and a disagreement about what those facts mean.” They add: “We are closer to the end than the beginning, but we’re not wrapping up.”

But I think something else is going on, in addition to any downplaying Democrats’ views.

It’s that the report shifts back and forth between “conspiracy” and “collusion.”

After two years and 200 interviews, the Senate Intelligence Committee is approaching the end of its investigation into the 2016 election, having uncovered no direct evidence of a conspiracy between the Trump campaign and Russia, according to both Democrats and Republicans on the committee.

[snip]

“If we write a report based upon the facts that we have, then we don’t have anything that would suggest there was collusion by the Trump campaign and Russia,” said Sen. Richard Burr, R-N.C., the chairman of the Senate Intelligence Committee, in an interview with CBS News last week.

[snip]

“We were never going find a contract signed in blood saying, ‘Hey Vlad, we’re going to collude,'” one Democratic aide said.

[snip]

House Republicans announced last year they had found no evidence of collusion, but their report came under immediate criticism as a highly partisan product that excluded Democrats.

[snip]

“Senator Richard Burr, The Chairman of the Senate Intelligence Committee, just announced that after almost two years, more than two hundred interviews, and thousands of documents, they have found NO COLLUSION BETWEEN TRUMP AND RUSSIA!” Trump tweeted Sunday. “Is anybody really surprised by this?”

[snip]

“This [sharing polling data] appears as the closest we’ve seen yet to real, live, actual collusion,” he said on CNN.

[snip]

The final Senate report may not reach a conclusion on whether the contacts added up to collusion or coordination with Russia, Burr said.

Democrats told NBC News that’s a distinct possibility.

“What I’m telling you is that I’m going to present, as best we can, the facts to you and to the American people,” Burr told CBS. “And you’ll have to draw your own conclusion as to whether you think that, by whatever definition, that’s collusion.”

The story promises to talk about conspiracy, but then ends up talking about “collusion,” going so far as quoting Burr saying you need to draw your own conclusion about what you think the definition of “collusion” is.

That’s an important distinction, especially in a report that talks about Paul Manafort, not least because Manafort has already pled guilty to conspiring with Konstantin Kilimnik, albeit for covering up crimes in 2018 rather than committing them in 2016.

And while Burr complains we can’t know his or any of the other flunkies’ motives, Andrew Weissmann made it clear that Manafort told the grand jury he didn’t have just one motive when he handed highly detailed, recent polling data to Konstantin Kilimnik to be handed over to his Ukrainian and Russian paymasters.

And I think that in the grand jury, Mr. Manafort said that from his perspective, [sharing polling data] which he admitted at that point was with — he understood that it was going to be given by [redacted] to the [redacted] and to Mr. redacted 9 character name], both. That from his perspective, it was — there was no downside — I’m paraphrasing — it was sort of a win-win. That there was nothing — there was no negatives.

[snip]

My answer, with respect to the Court’s question about what it is — what the defendant’s intent was in terms of what he thought [redacted] I was just trying to answer that question, even though that’s not one of the bases for saying there was a lie here. And so I was just trying to answer that question. And what I meant by his statement that there’s no downside, is that can you imagine multiple reasons for [redacted]. And I think the only downside —

THE COURT: You meant no downside to him?

MR. WEISSMANN: Yes.

THE COURT: You weren’t suggesting that there was nothing — there’s no scenario under which this could be a bad thing?

MR. WEISSMANN: Oh, sorry. Yes. I meant there was no downside — Mr. Manafort had said there was no downside to Mr. Manafort doing it.

[snip]

MR. WEISSMANN: And meaning all of this is a benefit. The negative, as I said, was it coming out that he did this.

This August 2, 2016 data hand-off occurred in the specific context of Manafort trying to get whole on his $20 million debt to Oleg Deripaska. The data was also going to some Ukrainian oligarchs that Manafort expected to pay him $2.4 million in November 2016. And all that’s aside from whether Manafort expected the Russians to do anything with the data that might help Trump.

He was badly underwater, and — according to his grand jury testimony, at least as described by Weissmann — he clandestinely handed off recent detailed polling data to a guy connected to the agency that was still hacking Hillary Clinton, to be shared with a bunch of oligarchs who could help him reverse his financial fortunes.

It seems there’s a conspiracy there one way another. Either Manafort effectively stole Trump’s campaign data and traded it to foreigners for monetary gain. And/or Manafort handed over that data expecting that the campaign would get a thing of value from the foreigners he was sharing it with.

Richard Burr would seem to argue that’s not “collusion” unless Trump knew about it (whether he did is one of the questions Mueller posed to Trump).

But it is a conspiracy, an agreement with Konstantin Kilimnik to commit one or more crimes, right there in the middle of the election season. Whether Mueller will charge it or do something else with it remains to be seen. But it is fairly clearly a conspiracy, down to the clandestine arrivals and departures from the dark cigar lounge.

Ultimately, Burr’s retreat to that word “collusion” is a tell. Because, given the public facts in this case, Republicans should be outraged that Trump’s campaign manager was so disloyal he shared highly sensitive data with potentially malign actors. Republicans should be outraged that Trump’s campaign manager was putting his own financial imperatives ahead of sound campaign practice.

But they’re not. For some reason, Republicans are not squawking about the explanation for this data hand-off that would suggest the campaign didn’t expect to benefit.

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. 

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What We Know about the “Other” Investigation about which Paul Manafort Lied

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In this post, I noted that another investigation that Paul Manafort had been questioned about while he was purportedly cooperating could not be Steve Calk, as I and others had previously assumed. The breach hearing transcript makes it clear that’s not true for several reasons, including the length of the names of the key players, and the fact that this involved “saving the candidate.”

In this post, I’d like to lay out what we do know about that other investigation.

Effectively, Manafort was asked some questions in a proffer session before his plea on September 13, in response to which he offered information that implicated someone with a 7-character name. [These dates are in the government’s January 15 filing at 23.] Then, in a debriefing on October 5, he changed his story to make it less incriminating — and to match the story the subject of the investigation was telling to the FBI at the time (last fall). When pressed by his lawyers, Manafort mostly changed his story back to what it had been. But the head fake made Manafort useless as a witness against this person.

Judge Amy Berman Jackson summed up this change this way:

The allegation is that the defendant offered a version of events that downplayed [redacted; “the President’s” or “the Candidate”s might fit] role and/or his knowledge. Specifically, his knowledge of any prior involvement of the [16-17 character redaction] that was inconsistent with and less incriminating of [7 character redaction] than what he had already said during the proffer stage and now consistent with what Mr. [7 character redaction] himself was telling the FBI.

This investigation pertains to events that happened “prior to [Manafort] leaving the campaign (on August 19).” [January 15 filing at 26]

As Andrew Weissman described in the breach hearing, Manafort’s version of the story first came when prosecutors, “were asking questions about an e-mail that Mr. [5 character name] had written about a potential way of saving the candidate. That’s sort of paraphrasing it. And this was a way of explaining, or explaining away that e-mail.” In the Janaury 15 filing, this conversation arises to explain “a series of text messages.” [See 25]

Weissmann describes that the revised story Manafort told was, “quite dramatically different. This is not I forgot something or I need to augment some details of a basic core set of facts.” Manafort’s original story involved Mr. [7 character redaction] providing information about a [redacted] who was doing something. Manafort appears to have made a representation about what Mr. [7 character name] believed about that (likely important to proving intent).

But in the second session, Manafort appears to have shifted the blame, implicating Mr. [5 character name] whom, “Mr. Manafort had previously said, I did not want to be involved in this at all,” but leaving out what Mr. [7 character name] had said. Manafort’s testimony effectively left out that when Mr. [5 character name] had called previously, Manafort had said, “I’m on it, don’t get involved.” It appears that Weissmann surmised that Manafort changed the story because his version would make it central to the question of criminality [this might be a reference to being related to the Mueller investigation], so he revised it in an attempt to avoid providing anything that might be helpful to implicating Mr. [7 character name].

Weissmann argues that the lie is important because it effectively made Manafort useless as a witness.

I don’t think adversely impact is the standard, but when — assuming that the Court were to find there is a lie, that is the adverse impact in terms of the utility that can be made of the cooperating witness.

While ABJ doesn’t seem to think it one of Manafort’s most egregious lies, she does recognize that it meets the materiality standard of a false statements charge.

Weissmann: I do think if the Court was trying to address also the issue of whether it hits all the elements of a false statement in terms of is it material to an investigation, I mean, what we’ve tried to do with each of these is put in enough context to show the materiality here, the whole —

THE COURT: I understand the materiality in this circumstance.

When Richard Westling tries to dismiss all this as just Manafort getting off to a bad start one day, ABJ corrects him and makes it clear he has substituted one fact for another.

THE COURT: I do think, to quibble with maybe the first thing you said, where you said he started at the level of generality and didn’t add the same amount of detail he added the first time, but then he was happy to add the details, that’s very different than telling a different detail than the detail you provided the first time. I don’t think that’s quite a — it was a very generous characterization.

The investigation is in another district.  The initial government 12/7 filing says that explicitly at 8. The breach filing at 112 says they had the other investigative team “come here.”

This could be the hush payments (investigated in SDNY), but Michael Cohen — if he’s the 5-character name redacted — never said he didn’t want to be involved in those.

It could also involve Manafort’s burgeoning FARA scandal: Vin Weber or Greg Craig could be the 5-character name, and Tony Podesta could be the 7-character name (though I doubt Manafort would perjure himself at this point to save Podesta, particularly at the detriment of Weber). The timing would work perfectly, as would the timing of the subject of this investigation talking to the FBI last fall. But it’s not clear that that burgeoning investigation ever really required “saving the candidate,” as the 5-character person seems to have deemed the issue.

Given the timing, it might involve the PsyGroup offer, but with Jared Kushner rather than Don Jr playing the starring role. That would mean that offer of foreign assistance investigation would have been moved to another district, possibly SDNY like the rest of things. Rick Gates was in the loop on that, but they wouldn’t have redacted his name if he were the 5-character named person involved.

Update: This morning, The New Yorker published this on PsyGroup’s efforts to win business in the 2016 election, with a description of the FBI’s investigation of them. It describes Joel Zamel pitching Jared Kushner, as well as the known outreach to Rick Gates and Don Jr.

During the 2016 Presidential race, the company pitched members of Donald Trump’s campaign team on its ability to influence the results. Psy-Group’s owner, Joel Zamel, even asked Newt Gingrich, the former House Speaker, to offer Zamel’s services to Jared Kushner, Trump’s son-in-law.

[snip]

In early May, 2016, Zamel sent an e-mail to Gingrich, saying that he could provide the Trump campaign with powerful tools that would use social media to advance Trump’s chances. Zamel suggested a meeting in Washington to discuss the matter further. Gingrich forwarded the e-mail to Jared Kushner and asked if the campaign would be interested. Kushner checked with others on the campaign, including Brad Parscale, who ran Web operations. According to a person familiar with the exchange, Parscale told Kushner that they didn’t need Zamel’s help. (A 2016 campaign official said, “We didn’t use their services.”)

And while someone claimed they didn’t use PsyGroup’s services, Zamel reportedly bragged to George Nader after the election that he had helped get Trump elected.

But, according to the Nader representative, shortly after the election Zamel bragged to Nader that he had conducted a secret campaign that had been influential in Trump’s victory. Zamel agreed to brief Nader on how the operation had worked. During that conversation, Zamel showed Nader several analytical reports, including one that described the role of avatars, bots, fake news, and unattributed Web sites in assisting Trump. Zamel told Nader, “Here’s the work that we did to help get Trump elected,” according to the Nader representative. Nader paid Zamel more than two million dollars, but never received copies of the reports, that person said.

If Don Jr. handed the PsyGroup pitch onto Jared and Manafort, it might mean that the other investigation is one into PsyGroup.

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. 

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Paul Manafort Sold Out Donald Trump — and His Anonymous Leakers Are Lying about It Publicly

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Back when Paul Manafort’s lawyers redaction fail first revealed that Manafort lied about sharing polling data with Konstantin Kilimnik, someone made the following claim to the NYT:

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.

Given what appears in the breach hearing transcript, that appears to be a totally blatant lie. And Manafort’s lawyers appear to have made similar cynical lies in that hearing to deny what Manafort had actually done.

For reference, here are the other filings on Manafort’s breach:

The data was incredibly detailed

The discussion of the polling data starts on page 82. Judge Amy Berman Jackson starts by noting that Manafort tried to deny the data had been shared and claimed at one point that it was just public data.

He said it just was public information.

Later in the hearing, when Manafort’s lawyers suggest that this was mostly public data — part of the claim that someone leaked to the NYT — ABJ asked then why the pollster (this is probably a reference to Tony Fabrizio, whom Mueller met with in the weeks before Rick Gates flipped and after Gates first revealed that they had shared the data) was making so much money.

In response, Richard Westling, from the same defense team working so hard to claim this was public data, then wildly shifted, arguing that the data was so detailed it would be meaningless to someone like him. In response, ABJ notes that that’s what makes the sharing of it so important.

But, as Weissmann lays out, not only had Kilimnik worked for Manafort (and therefore with this pollster, Fabrizio) for many years — so would know how to read the data — Manafort walked him through the data at the August 2 meeting.

Later in this exchange, ABJ has an ex parte discussion with the prosecutors, to see if something she’s been made aware of can be shared with Manafort’s lawyers. Remember: she is also presiding over Sam Patten’s case. Patten worked with both Gates and Manafort, and was working with Kilimnik in this period. He not only might be able to corroborate the data-sharing story, but he would be able to help Kilimnik use it, even if the years of working with Manafort hadn’t already prepared Kilimnik to do so himself. When Patten submitted a status report on December 31, it was filed under seal; his next status report is due on Monday.

The data was shared with multiple people, which Manafort considered a win-win

Andrew Weissmann lays out that Manafort ultimately admitted that the data would be shared both with a named individual and with some other entity. And he describes Manafort considering the sharing of that data to be a win-win, perhaps suggesting that it might help Donald Trump, but even if it didn’t, it would get him work in Ukraine and Russia down the road.

Weissmann returns to that — sharing this data, for Manafort, was a win-win, unless the fact that he shared the data subsequently became public.

Mr. Manafort had said there was no downside to Mr. Manafort doing it.

[snip]

MR. WEISSMANN: And meaning all of this is a benefit. The negative, as I said, was it coming out that he did this.

Of course, now it’s public and Manafort is willing to lie himself into further prison time to try to downplay that he shared detailed polling data with someone the FBI maintains has ties to the same Russian agency that hacked the DNC right in the middle of the campaign.

Update: JL notes that neither of the two Ukrainian oligarchs identified by NYT’s leakers, Lyovochkin and Akhmetov, fit the 9-character redaction after “Mr.” in the last screen cap. But “Deripaska” does. And we know this meeting was specifically focused on Kilimnik reporting back to Deripaska. In addition, Deripaska’s plane was in NY just after the meeting.

Manafort and Gates shared the data on August 2, not in the spring

At least according to ABJ’s understanding, Gates and Manafort shared the data not in the spring (as claimed to the NYT) but at the August 2, 2016 meeting at the Havana Club, to which — discussion elsewhere made clear — the two men came and left separately, emphasizing the clandestine nature of this hand-off.

ABJ’s understanding is backed by several Gates’ 302s, which must also correlate with emails that, per ABJ, corroborate Gates’ account.

Even before ABJ made that point, Westling appears to suggest that what Gates shared with Kilimnik was the most recent data.

One other reason this is important — but which didn’t get mentioned in this hearing: Manafort shared incredibly detailed polling information with someone who has ties to GRU a month before GRU went back to hack Hillary’s analytics. So they had very detailed data from both sides.

Kevin Downing twice attempts to render a jury verdict against Gates

Manafort’s team, generally, tries to claim that the sharing of polling data is just a matter of Gates’ word against Manafort’s, in spite of there being emails involving Manafort himself on sharing the data (and, apparently, emails showing whom Kilimnik shared them with).

But when ABJ notes that the poll data hand-off happened at the August 2 Havana Club meeting, in a fit of desperation, Kevin Downing claims that this all depended on Gates’ testimony and ABJ shouldn’t take anything he said as true because the jury found he totally lacked credibility. ABJ warns him twice not to go there.

MR. DOWNING: Your Honor, one other point. I know this Court hasn’t had the opportunity to review the testimony, probably, of Mr. Gates from Eastern District of Virginia, but he was found so incredible by the jury that a juror said to the press that they completely disregarded his entire testimony. So to the extent that this Court would cite Mr. Gates as any evidence, I think a review of the findings of the jurors in EDVA should be undertaken because if he is not corroborated —

THE COURT: Don’t. Don’t.

MR. DOWNING: Your Honor, it’s a fact.

THE COURT: I’m not going to base anything on what one juror said to the press.

In spite of having been warned once, Downing again returns to what the juror in EDVA said later in the hearing.

MR. DOWNING: And I will admit, on my end I won’t take it as a failure on my part because I did not think this Court wouldn’t take into consideration the fact how he was found to have no credibility at all by the jury over there.

THE COURT: You cannot keep saying that.

MR. DOWNING: I can keep saying it, Your Honor, because it’s true

THE COURT: First of all, you’re asking me to make a determination about what 12 jurors concluded because of what one juror was quoted in the paper as saying, which right now I don’t even have in front of me. But I believe she said we decided to vote on whether or not we could find him beyond a reasonable doubt, putting his testimony aside, which is different than saying we agreed, as 12 people, that nothing he said was true.

MR. DOWNING: That’s — that’s —

THE COURT: That’s totally different.

MR. DOWNING: I disagree with you. But I could go and get the press account of that.

THE COURT: I don’t know. I don’t have the press account. The press account is not evidence.

Downing floats bringing ABJ the press account himself, but then suggests he could provide the transcript. ABJ even offers to call Gates before her to testify.

Over lunch, ABJ goes on her own to find that press account. And, as she explains immediately after lunch, she doesn’t agree with Downing’s reading of it. Indeed, she calls it hyperbolic.

I went back and read the article that I believe I read at the time and, indeed, there was a juror who spoke publicly. She spoke publicly because she said she wanted the public to know that while she wanted Mr. Manafort to be not guilty, the evidence was overwhelming.

She indicated that the only reason he was not convicted on all counts was because of a lone holdout in the jury. She did not attribute that to Mr. Gates’s credibility. And reportedly, she did say, as I thought I recalled, some of us had a problem accepting his testimony because he took the plea. So we agreed to throw out his testimony and look at the paperwork. And then she added, I think he would have done anything to preserve himself, that’s just obvious in the fact that he flipped on Manafort.

So, I don’t believe — there’s certainly not anything in this record for these proceedings, or the public record, for that matter, that supports your argument that I should consider the fact that the jury unanimously concluded he was a liar, as was reported in the press by a juror, and threw out his testimony. I don’t believe that that is what the newspaper articles reported. Not that I would have relied on the newspaper article or what happened in the Eastern District of Virginia anyway, but I believe your argument was a little hyperbolic.

Manafort’s lawyers knew about this allegation because they tried to air it during the EDVA trial

In addition to trying to claim that this matter just pits Gates against Manafort, Manafort’s lawyers try to claim that Gates only made the claim about sharing polling data last fall, late in the process of his cooperation, meaning that they didn’t have an opportunity to prep their client on it.

I may be wrong about this, but we have a note — a September 27th, 2018 interview which we did not see until this submission was made, where Mr. Gates makes that statement.

Mr. Weissmann has suggested we had all of Mr. Gates’s 302s where he said this previously. I don’t think he said it before that interview. And so as far as we know, that’s new testimony from Mr. Gates compared to what he said in prior proffer sessions, where I think he said something more like it was more what was publicly available.

Weissmann corrects that by noting that at a proffer on January 30, 2018, Gates laid all that out.

Mr. Weissmann, with respect to the specific argument that they just made that this was a new twist by Mr. Gates, only in the 302 that they most recently received, do you have anything you want to add to that, respond to that?

MR. WEISSMANN: Yes, I do. So, I would direct the Court’s attention to Exhibit 236, which is a 302 with respect to Mr. Gates, and the date of that is January 30th, 2018.

He later notes the two 302s from early in Gates’ cooperation where that came up (it was actually January 31, not January 30).

In any case, after first raising Gates’ proffer from January mentioning Manafort sharing this polling data, Weissmann notes that Kevin Downing called attention to this during the EDVA trial.

Back in September, I suggested that Greg Andres’ success at getting this sidebar sealed probably had something to do with Manafort’s willingness to take a fairly shitty plea deal. It was a big fucking deal at the time. And the notion that Kevin Downing — who tried to get the information in the public record at the trial — is now claiming he didn’t know about it is simply contemptuous.

Manafort lied about sharing data with a Russian asset in hopes of getting a pardon

And this is where what appears to be at least the second reference in the hearing to Manafort’s hopes of getting a pardon appears (by context, this is almost certainly Weissmann, though the transcript labels it as Westling).

Manafort knows well what he did in August 2016. But he — and his lawyers, and whoever lied anonymously to the NYT — continue to lie about it in hopes that, by refusing to confirm that he conspired with Russia to get Trump elected, Trump will pay him off with a pardon.

The truth appears to be that Manafort walked Konstantin Kilimnik through recent, highly detailed polling data at a clandestine meeting in NYC on August 2, 2016, in part because even if it didn’t help Trump, it might help his own fortunes down the way. And he’s willing to bet that lying about that fact is his best chance for a pardon.

Update, from the comments: Eureka notes that the same night Manafort shared campaign data, probably with Oleg Deripaska, Stone defended him, insisting he was doing “everything humanly possible to help” Trump.

Aug 2, 2016 09:59:24 PM The idea that @PaulManafort is not doing everything humanly possible to help @realDonaldTrump win is patently false [Twitter for iPhone]

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. 

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Two Details That Many Are Missing in/about the Stone Indictment

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I’ve been traveling most of the day to get out of the Midwest before the snow and record low temperatures show up, and will be buried for three days working on things that have nothing to do with any investigation Mueller has been involved in since 2013.

But I do want to add two details to the parlor game going on about whether or not the Roger Stone indictment is the tip of a conspiracy-burg or evidence there’s no there there. Joyce White Vance argues that Mueller charged Stone the way he did to hide the rest of the conspiracy prosecution.

Why didn’t Mueller charge Stone with conspiracy? The rules in federal cases require that prosecutors provide defendants with broad discovery. By indicting Stone on a fairly narrow set of charges, Mueller limits what has to be disclosed & can protect ongoing investigation.

Randall Eliason offers a respectable version of the argument that the indictment suggests there won’t be a conspiracy case.

There have always been at least two possible end games for the Mueller investigation. He could uncover evidence of a widespread criminal conspiracy between the Trump campaign and Russians to influence the election. Or he could conclude that the campaign’s numerous documented interactions with Russians seeking to help Trump win were not criminal, but people close to Trump lied to cover up those interactions because revealing them would have been politically devastating.

Stone’s indictment falls into the coverup category. Mueller may have evidence of the broader conspiracy, and more charges may well be coming. But every case like Stone’s, or those against former campaign manager Paul Manafort, that is filed without charging a conspiracy with the Russians makes it seem more likely that criminal charges brought by the special counsel will end up being primarily about the coverups.

Andy McCarthy offers a less respectable version of the same.

Neither Eliason nor McCarthy account for one of the only new details in the indictment, showing that an unidentified Steve Bannon associate congratulated Stone on October 7.

On or about October 7, 2016, Organization 1 released the first set of emails stolen from the Clinton Campaign chairman. Shortly after Organization 1’s release, an associate of the high-ranking Trump Campaign official sent a text message to STONE that read “well done.” In subsequent conversations with senior Trump Campaign officials, STONE claimed credit for having correctly predicted the October 7, 2016 release.

This detail shows that the Trump campaign at least believed that Stone succeeded in getting WikiLeaks to drop the John Podesta emails to distract attention from the Access Hollywood video, which in turn is consistent with a claim Jerome Corsi made about Stone having advance knowledge of the Access Hollywood video and that he and Stone succeeded in timing the email release.

 Corsi wrote in his forthcoming 57,000-word book that he told Zelinsky that Stone told him in advance that the “Access Hollywood” tape would be released.

He wrote that “although I could not remember exactly when Roger told me, or the precise substance of the discussion, I remembered Roger told me before the Washington Post went to press with the Billy Bush tape that the tape was coming and that it would be a bombshell.”

Corsi said he had three phone calls with Stone in the hours before the release of the tape.

“I know nothing about that, either does Jerry Corsi,” Stone told TheDCNF. When asked why Corsi might be motivated to make a false claim, Stone said: “He’s saying this because the prosecutors induced him to say it.”

Corsi also wrote that Zelinsky revealed that prosecutors had evidence of an email exchange between he and Stone “in which Stone expressed pleasure that Assange had released the Podesta emails as instructed.”

Corsi said he replied that he and Stone “should be given credit” for the release.

While Stone disputes Corsi’s claim and Corsi feigns forgetfulness about precisely what happened, by including a communication showing Stone getting credit for the timing, Mueller is suggesting that Corsi is right — and that he has credible, corroborating evidence to prove it.

That’s more coordination — between Corsi and Stone, but more importantly between some go-between and WikiLeaks — than would be the case if Stone’s indictment were all Mueller had. It would put Stone and Corsi in a conspiracy with WikiLeaks and their go-between(s).

Then there’s this detail from the motion to seal Stone’s indictment that no one has yet offered a full explanation for (indeed, most of the reports that noted that Amy Berman Jackson had been assigned the case didn’t explain this detail at all).

Someone — and it would almost certainly have to be the prosecutors (including one who, DC US Attorney’s office prosecutor Jonathan Kravis, is on the internet Research Agency case),  — told the court that Stone’s namby pamby “process crime” is related to the big conspiracy case involving WIkiLeaks with a bunch of Russian hackers. (I’ve updated my running docket of Mueller and potentially related cases to reflect Stone’s indictment.) And while it’s true that Stone is described in the GRU indictment, he is not named in a way that the court would identify that by themselves. WikiLeaks shows up in both, but there’s no need to tie WikiLeaks cases together unless some defendant is going to show up to face prosecution (and WikiLeaks is does not take any of the overt acts described in the Stone indictment).

I don’t pretend to understand how this happened or what it all means. But there’s nothing about the Stone obstruction prosecution that would overlap with the evidence in the GRU indictment. And, as charged, the GRU indictment won’t be prosecuted at all until Julian Assange or someone else involved in it ends up in DC to face charges.

By all means, continue the parlor game. But at least explain how those two details fit into your theory of nothing-“berder” or grand conspiracy.

Update: By popular demand, I’m including the definition of a “related case” under DC’s local rules.

A related case for the purpose of this Rule means as follows:

(1) Criminal cases are deemed related when

(i) a superseding indictment has been filed, or

(ii) more than one indictment is filed or pending against the same defendant or defendants, or

(iii) prosecution against different defendants arises from a common wiretap, search warrant, or activities which are a part of the same alleged criminal event or transaction. A case is considered pending until a defendant has been sentenced.

Certainly, WikiLeaks is named as a co-conspirator in both. But it is not yet a defendant. Though both cases may rely on a wiretap targeting Wikileaks. Or perhaps Stone’s search warrant included his conversations with Guccifer 2.0, and so the other indictment.

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. 

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Things Not Said in Roger Stone’s Indictment: “Trump Directed” and Other More Damning Details

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I’m a leading purveyor of the theory that Robert Mueller is producing his mythical “report” via one after another speaking indictments. That said, it has always been true that some of the most interesting parts of his indictments involved what didn’t get said. That’s especially true in today’s Roger Stone indictment. Before I explain what didn’t get said, let me review what got said. The indictment shows that Stone was asked to figure out what emails on Hillary Julian Assange had, and using at least Jerome Corsi and Randy Credico as go-betweens, Stone did so, providing information (most explicitly) to Trump campaign manager Steve Bannon. When Congress asked Stone about all this, he lied, first hiding any of his go-betweens, and then seemingly using Randy Credico to hide Jerome Corsi. Mueller provides a lot of the communications between Stone and his go-betweens and the communications from October 2016, as well as some of the ones from the cover-up period.

But he doesn’t provide us everything.

I have argued that the early morning raid, not to mention the larding on of charges, suggest this is an effort to get Stone to flip, both against Jerome Corsi (which is why Meuller locked in testimony from Corsi’s stepson yesterday) and Trump himself.

With that in mind, here are the things that Mueller doesn’t say.

With whom — besides Campaign Manager Steve Bannon — at the Trump Campaign did Roger Stone speak

The word “campaign” shows up 52 times in Stone’s indictment, of which (by my count) 7 are generic references, 16 are to Hillary’s campaign or a descriptor for John Podesta, and 29 are to Trump’s campaign or associates of it. The indictment describes Stone’s discussions with people on the campaign over and over. While a number of those are to identified individuals — most notably Steve Bannon — a number of those are generic, including the following references.

During the summer of 2016, STONE spoke to senior Trump Campaign officials about Organization 1 and information it might have had that would be damaging to the Clinton Campaign. STONE was contacted by senior Trump Campaign officials to inquire about future releases by Organization 1.

[snip]

STONE also continued to communicate with members of the Trump Campaign about Organization 1 and its intended future releases.

[snip]

By in or around June and July 2016, STONE informed senior Trump Campaign officials that he had information indicating Organization 1 had documents whose release would be damaging to the Clinton Campaign.

[snip]

STONE thereafter told the Trump Campaign about potential future releases of damaging material by Organization 1.

It does so in an indictment that alleges (correctly, obviously) that one of Stone’s lies to the House Intelligence Committee that was material was whom he was speaking with on the campaign. The description of that lie cites the October 4 Bannon communication and the “supporter.” But it still leaves who else he spoke with unstated.

STONE’s False and Misleading Testimony About Communications with the Trump Campaign

35. During his HPSCI testimony, STONE was asked, “did you discuss your conversations with the intermediary with anyone involved in the Trump campaign?” STONE falsely and misleadingly answered, “I did not.” In truth and in fact, and as described above, STONE spoke to multiple individuals involved in the Trump Campaign about what he claimed to have learned from his intermediary to Organization 1, including the following:

a. On multiple occasions, STONE told senior Trump Campaign officials about materials possessed by Organization 1 and the timing of future releases.

And, of course, there’s this reference, which uses the word “directed” exactly a week after BuzzFeed got pilloried for using it about Trump.

After the July 22, 2016 release of stolen DNC emails by Organization 1, a senior Trump Campaign official was directed to contact STONE about any additional releases and what other damaging information Organization 1 had regarding the Clinton Campaign.

Mind you, this indictment had to have been approved in advance by Big Dick Toilet Salesman Matt Whitaker, and the last time he permitted prosecutors to name Individual-1 in an indictment, he got chewed out for it.

So maybe Mueller is not saying who else on the Trump campaign Stone was talking to (though we know he had frequent calls with Trump all through the campaign) to hide what else he knows. Maybe the Big Dick Toilet Salesman wouldn’t let Mueller lay this out (though I doubt that’s the case). Or maybe Mueller is just trying to avoid a second week in a row featuring headlines about what Trump “directed” his associates to do as part of the Russian conspiracy.

Corsi’s (and possibly Credico’s) role in the conspiracy

As I noted above, Mueller got aggressive with Stone to get him to flip on others. Obviously, the big prize is Trump. But there’s space for Stone to take his revenge on Jerome Corsi (and possibly even Randy Credico).

I suspect that Credico is not in any danger here. That said, he is described as a potential co-conspirator, Person 2, and did clearly discuss a conspiracy to obstruct HPSCI’s investigation. “‘Stonewall it. Plead the fifth. Anything to save the plan’ . . . Richard Nixon,” Stone wrote as he tried to persuade Credico not to testify to HPSCI.

There’s just one detail that makes me wonder if Credico was not fully truthful with Mueller. When Credico discussed Stone’s September request that he ask Assange about emails pertaining to Hillary’s efforts to undermine a Libyan peace effort with WSJ last year, he denied he had sent the request to either Assange or his lawyer Margaret Kunstler.

“Please ask Assange for any State or HRC e-mail from August 10 to August 30–particularly on August 20, 2011,” Mr. Stone wrote to Randy Credico, a New York radio personality who had interviewed Mr. Assange several weeks earlier. Mr. Stone, a longtime confidant of Donald Trump, had no formal role in his campaign at the time.

Mr. Credico initially responded to Mr. Stone that what he was requesting would be on WikiLeaks’ website if it existed, according to an email reviewed by the Journal. Mr. Stone, the emails show, replied: “Why do we assume WikiLeaks has released everything they have ???”

In another email, Mr. Credico then asked Mr. Stone to give him a “little bit of time,” saying he thought Mr. Assange might appear on his radio show the next day. A few hours later, Mr. Credico wrote: “That batch probably coming out in the next drop…I can’t ask them favors every other day .I asked one of his lawyers…they have major legal headaches riggt now..relax.”

Mr. Credico said in an interview with the Journal that he never passed the message on to Mr. Assange or his lawyers, but “got tired” of Mr. Stone “bothering” him, and so told Mr. Stone he had passed along the message.

The indictment says he in fact did forward the request to Kunstler.

On or about September 20, 2016, Person 2 forwarded the request to a friend who was an attorney with the ability to contact the head of Organization 1. Person 2 blind-copied STONE on the forwarded email.

That said, the indictment clearly remains silent about a lot of the details Mueller has incriminating Corsi in a cover-up (who, remember, prosecutors threatened to charge in a conspiracy to suborn perjury with respect to Stone’s testimony, and whose stepson Mueller locked into testimony before this indictment). The indictment includes this reference to a November discussion between Stone and Corsi.

On or about November 30, 2017, STONE asked Person 1 to write publicly about Person 2. Person 1 responded, “Are you sure you want to make something out of this now? Why not wait to see what [Person 2] does. You may be defending yourself too much—raising new questions that will fuel new inquiries. This may be a time to say less, not more.” STONE responded by telling Person 1 that Person 2 “will take the 5th—but let’s hold a day.”

But it remains silent on the report that Stone asked Corsi to write in August 2016 to establish a cover story, and it remains silent on whether Stone paid Corsi hush payments to stay silent after that.

Farage and Malloch and any other go-betweens

The indictment names Ted Malloch, though not as a co-conspirator.

On or about the same day, Person 1 forwarded STONE’s email to an associate who lived in the United Kingdom and was a supporter of the Trump Campaign.

[snip]

The body of the email read in part that Person 1’s associate in the United Kingdom “should see [the head of Organization 1].”

It doesn’t, however, put the Malloch references into context.

For example, it doesn’t reveal that — around the time someone “was directed” to get Stone to find out what WikiLeaks had — Stone and Alex Jones met with Nigel Farage at the RNC, which ultimately led to Farage joining Trump at a campaign event.

One night during the convention, Farage was introduced to Trump’s longtime adviser, the infamous political trickster, Roger Stone, at an Italian restaurant in The Flats district of Cleveland, according to both men.

Stone, who was accompanied that night by the Internet radio host and conspiracy theorist Alex Jones, said Farage’s main goal appeared to be to get a meeting with Trump.

The next day, Stone said, he tried to help by calling his former business partner, Paul Manafort – then Trump’s campaign chairman – and suggested that the Republican nominee get together with Farage. Manafort’s response was something along the lines of, “I’ll put a good word in,” Stone recalled.

Then, Stone met Ted Malloch — with Corsi — for dinner in NYC.

Asked about the nature of his relationship with Malloch, Stone said he did not know the other man well. He initially said he met Malloch three times but later said he recalled only two meetings with him.

Stone’s and Malloch’s first meeting was at a New York restaurant, Strip House, during the 2016 campaign. The two men dined with Jerome Corsi, a far-right political commentator and conspiracy theorist, Stone said.

Stone said his conversation with Malloch and Corsi at dinner was friendly but not memorable, and that they discussed “Brexit and globalism.” He added that they never discussed WikiLeaks, Assange, or Russia.

Stone, at least, is very sketchy about the timing of this, though it may actually precede when Stone asks Corsi to reach out to Malloch (indeed, might be the very reason he thought Corsi could get to Assange via Malloch).

That led to Farage’s campaign appearance with Trump on August 23.

Note, too, that the Stone indictment actually doesn’t say that Corsi is the go-between that Stone was hiding when he instead claimed Credico was his link to Assange. Indeed, of that go-between, he says he had only phone contact (though as I’ll write in a follow-up, that may have been for other reasons).

Particularly given Stone’s move to begin setting up a cover-story in August 2016, I’m not yet convinced we know who Stone’s real go-between is (and I’m still fairly certain that he and possibly Corsi had actual Podesta emails by then). He could have been working with Malloch directly. Or it could be someone else entirely.

Whoever it is, nothing in the Stone indictment tells us that for sure.

The Assange pardon

The Stone indictment is also silent about something that they have evidence — in the form of texts between Credico and Stone, surely among other things — that Stone tried to get Assange a pardon early last year.

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

The recipient of the messages was Randy Credico, a New York-based comedian and left-leaning political activist whom Stone has identified as his back channel to WikiLeaks during the 2016 campaign—a claim Credico strongly denies. During the election, Stone, a political provocateur who got his start working for Richard Nixon’s presidential campaign, made statements that suggested he had knowledge of WikiLeaks’ plans to publish emails stolen from Hillary Clinton’s campaign chairman, John Podesta, and other Democrats, and his interactions with WikiLeaks have become an intense focus of special counsel Robert Mueller’s ongoing investigation into Russian election interference. As Mueller’s team zeroes in on Stone, they have examined his push for an Assange pardon—which could be seen as an attempt to interfere with the Russia probe—and have questioned at least one of Stone’s associates about the effort.

Particularly given that any pardon would have had to involve the one guy in the United States who can pardon Assange, it seems relevant to Mueller’s investigation. And yet it doesn’t show up in this indictment.

That’s something, then, that Stone could walk Mueller through as an effort to get rid of the 20-year witness tampering charge he faces.

Russia

Finally, the indictment remains mostly silent about Russia, particularly Roger Stone’s 180-turn on August 1 to claim that Russia may not have been behind the hack of the DNC. That’s all the more interesting given the way the indictment lays out the attribution to Russia made in mid-June.

On or about June 14, 2016, the DNC—through Company 1—publicly announced that it had been hacked by Russian government actors.

And then included Stone’s denial that Russia had hacked the DNC in his statement before HPSCI.

“These hearings are largely based on a yet unproven allegation that the Russian state is responsible for the hacking of the DNC and [the Clinton Campaign chairman] and the transfer of that information to [Organization 1].”

The indictment makes these two nods to attribution even as (as a number of people have observed) in their motion to seal Stone’s indictment, prosecutors deemed Stone’s indictment to be related to the GRU indictment, and his docket includes one of the DC AUSAs also on the Internet Research Agency case, Jonathan Kravis. (I’ve updated my running docket of Mueller and potentially related cases here.)

Remember, the GRU indictment describes (but doesn’t charge) Stone’s communications with Guccifer 2.0.

On or about August 15, 2016, the Conspirators, posing as Guccifer 2.0, wrote to a person who wasin regular contact with senior members of the presidential campaign of Donald J. Trump, “thank u for writing back . . . do u find anyt[h]ing interesting in the docs i posted?” On or about August 17, 2016, the Conspirators added, “please tell me if i can help u anyhow . . . it would be a great pleasure to me.” On or about September 9, 2016, the Conspirators, again posing as Guccifer 2.0, referred to a stolen DCCC document posted online and asked the person, “what do u think of the info on the turnout model for the democrats entire presidential campaign.” The person responded, “[p]retty standard.”

So prosecutors are saying that Stone’s crimes are more closely related to the actual Russian hack (which, remember, continued into September, after Stone deemed the DCCC analytics Guccifer 2.0 released to be “standard”) than they are to Flynn or Manafort or Papadopoulos or anyone else’s indictments.

Mind you, WikiLeaks appears as an unindicted co-conspirator in both the Stone and the GRU indictments, which may explain the connection.

But for some reason, Mueller thinks it important to note in Stone’s indictment that he pretended to believe Russia didn’t hack the DNC long after the hack had been attributed, without ever once mentioning that he had also spoken with the GRU persona dumping files.

Update: I’ve taken out the reference to Sam Nunberg, who says he’s not the person listed in this indictment.

Update: I’ve corrected this to reflect it was Jerome Corsi’s stepson who appeared before the grand jury Thursday. h/t AK

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. 

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