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The Guy Who Defended Roger Stone’s Campaign Finance Shenanigans Did Not Testify to the Grand Jury

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In response to an order from DC Chief Judge Beryl Howell, the government has revealed the two witnesses of interest to Congress who did not testify to the grand jury. The first, Don Jr, should not surprise anyone who has been following closely, as that was clear as soon as the Mueller Report came out.

The other–Don McGahn–is far more interesting, especially since he was interviewed on five different occasions: November 30, December 12, December 14, 2017; March 8, 2018; and February 28, 2019.

Most likely, the reason has to do with privilege, as McGahn’s testimony, more than almost anyone else’s, implicated privilege (in part because many witnesses’ testimony cut off at the transition). McGahn ended up testifying far more than Trump knew, and it’s possible he did that by avoiding a subpoena, but had he been subpoenaed, it would provide the White House opportunity to object.

Elizabeth De la Vega said on Twitter it likely had to do with how valuable McGahn was in his five interviews. By not making him testify to the grand jury, she argued, you avoid creating a transcript that might undermine his credibility in the future. That’s certainly consistent with the Mueller Report statement finding McGahn to be “a credible witness with no motive to lie or exaggerate given the position he held in the White House.” But that reference is footnoted to say, “When this Office first interviewed McGahn about this topic, he was reluctant to share detailed information about what had occurred and only did so after continued questioning.” Plus, while McGahn testified more than any other witness not under a cooperation agreement, Steve Bannon and Hope Hicks testified a bunch of times, too (four and three times respectively), but were almost certainly put before the grand jury.

But there is a different, far more intriguing possibility.

First, remember that Roger Stone was investigated for more than lying to Congress (indeed, just the last four warrants against him, all dating to this year, mentioned just false statements and obstruction). Which crimes got named in which warrants is not entirely clear (this government filing and this Amy Berman Jackson opinion seem to conflict somewhat). Computer Fraud and Abuse Act, 18 U.S.C. § 1030(a)(2)(C), was named in all Stone’s warrants before this year. But at least by August 3, 2018, the warrants against Stone listed a slew of other crimes:

  • 18 U.S.C. § 3 (accessory after the fact)
  • 18 U.S.C. § 4 (misprision of a felony)
  • 18 U.S.C. § 371 (conspiracy)
  • 18 U.S.C. §§ 1505 and 1512 (obstruction of justice)
  • 18 U.S.C. § 1513 (witness tampering)
  • 18 U.S.C. § 1343 (wire fraud)
  • 18 U.S.C. § 1349 (attempt and conspiracy to commit wire fraud)
  • 52 U.S.C. § 30121 (foreign contribution ban)

For whatever reason, the government seems to have decided not to charge CFAA (if, indeed, Stone was the actual target of that investigation). They may have given up trying to charge him for encouraging or acting as an accessory after the fact.

The Mueller Report explains — albeit in mostly redacted form — what happened with the 52 U.S.C. § 30121 investigation. First Amendment and valuation concerns about a prosecution led Mueller not to charge it, even though he clearly seemed to think the stolen emails amounted to an illegal foreign campaign donation.

But that leaves wire fraud and conspiracy to commit wire fraud. During the month of August 2018, DOJ obtained at least 8 warrants relating to Stone including wire fraud. Beryl Howell — who in her order requiring the government unseal McGahn’s name, expressed puzzlement about why Don McGahn didn’t testify before the grand jury — approved at least five of those warrants. Rudolph Contreras approved one and James Boasberg approved two. So apparently, very late in the Stone investigation, three different judges thought there was probable cause Stone and others engaged in wire fraud (or tried to!).

And it’s not just those judges. Roger Stone’s aide, Andrew Miller, was happy to testify about WikiLeaks and Guccifer 2.0. But at least when his subpoena first became public, he wanted immunity to testify about the campaign finance stuff he had done for Stone.

Miller had asked for “some grant of immunity” regarding financial transactions involving political action committees for which he assisted Stone, according to Alicia Dearn, an attorney for Miller.

On that issue, Miller “would be asserting” his Fifth Amendment right to refuse to answer questions, Dearn said.

I’d like to consider the possibility that McGahn, Donald Trump’s campaign finance lawyer before he became White House counsel, was happy to testify about Trump’s attempt to obstruct justice, but less happy to testify about campaign finance issues.

Mind you, McGahn is not one of the personal injury lawyer types that Stone runs his campaign finance shenanigans with. Whatever else he is, McGahn is a professional, albeit an incredibly aggressive one.

That said, there are reasons it’s possible McGahn limited what he was willing to testify about with regards to work with Stone.

At Roger Stone’s trial the government plans (and has gotten permission) to introduce evidence that Stone lied about one additional thing in his HPSCI testimony, one that wasn’t charged but that like one of the charged lies, involves hiding that Stone kept the campaign in the loop on something.

At the pretrial conference held on September 25, 2019, the Court deferred ruling on that portion of the Government’s Notice of Intention to Introduce Rule 404(b) evidence [Dkt. # 140] that sought the introduction of evidence related to another alleged false statement to the HPSCI, which, like the statement charged in Count Six, relates to the defendant’s communications with the Trump campaign. After further review of the arguments made by the parties and the relevant authorities, and considering both the fact that the defendant has stated publicly that his alleged false statements were merely accidental, and that he is charged not only with making individual false statements, but also with corruptly endeavoring to obstruct the proceedings in general, the evidence will be admitted, with an appropriate limiting instruction. See Lavelle v. United States, 751 F.2d 1266, 1276 (D.C. Cir. 1985), citing United States v. DeLoach, 654 F.2d 763 (D.C. Cir. 1980) (given the defendant’s claim that she was simply confused and did not intend to deceive Congress, evidence of false testimony in other instances was relevant to her intent and passed the threshold under Rule 404(b)). The Court further finds that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.

A September hearing about this topic made clear that it pertains to what Stone’s PACs were doing.

Assistant U.S. Attorney Michael J. Marando argued that Stone falsely denied communicating with Trump’s campaign about his political-action-committee-related activities, and that the lie revealed his calculated plan to cover up his ties to the campaign and obstruct the committee’s work.

It sounds like Stone cleared up this testimony (Stone sent two letters to HPSCI in 2018, and one of those would have come after Steve Bannon testified about emails that included a Stone demand that Rebekah Mercer provide him funding), which may be why he didn’t get charged on that front.

As I’ve suggested, if Stone was actively trying to deny that the work of his PACs had any interaction with the Trump campaign, it might explain why he threatened to sue me when I laid out how McGahn’s continued work for Trump related to Stone’s voter suppression efforts in 2016.

And remember: when Stone aide Andrew Miller did finally testify — after agreeing to at virtually the moment Mueller announced he was closing up shop — he did so before a new grand jury, after Beryl Howell agreed with prosecutors that they were in search of evidence for charges beyond what Stone had already been indicted on or against different defendants.

McGahn’s campaign finance work for Stone and Trump is one of the things he’d have no Executive Privilege claims to protect (though barring a showing of crime-fraud exception, he would have attorney-client privilege), since it all happened before inauguration.

Again, there are lot of more obvious explanations for why he didn’t testify before the grand jury. But we know that Mueller investigated these campaign finance issues, and we know McGahn was right in the thick of them.

Remember Roger the Rat-Fucker?

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I’d like to point to three data points on Roger Stone, who is scheduled to go on trial on November 5, 364 days before the 2020 Presidential election.

Andrew Miller will testify against his former boss

First, Natasha Bertrand reported yesterday that Andrew Miller — the Roger Stone aide who fought a grand jury subpoena for a year — has been called as a government witness in Stone’s trial.

Andrew Miller, a longtime aide to Stone, received a subpoena in early August to appear as a government witness, said Miller’s lawyer, Paul Kamenar. Kamenar said he was “puzzled” as to why prosecutors wanted Miller as a government witness — he said earlier this year that he did not think Miller would be called — but confirmed that Miller plans to comply.

The result is that one of Stone’s closest aides will be testifying about him at his trial in November for lying to Congress about his dealings with WikiLeaks during the 2016 election. He has pleaded not guilty.

Miller worked with Stone for over a decade, managing his schedule and travel. Miller accompanied Stone to the Republican National Convention in 2016, meaning he might have insight into Stone’s activity around this time.

It’s clear that Miller’s lawyer doesn’t understand how his client’s testimony helps the government’s case. But it’s worth considering that we still don’t know how Roger Stone was learning of WikiLeaks’ plans. WikiLeaks claims they never spoke to him directly until later in the process, and Jerome Corsi does not appear to learn anything until weeks later (and I don’t rule out Corsi learning some of it from Stone, not vice-versa).

But, at least according to Michael Cohen’s testimony (which he suspects was corroborated by other sources), Stone called Donald Trump on either July 18 or 19 and told the candidate that WikiLeaks was about to drop a massive dump of emails that would damage Hillary’s campaign.

As I earlier stated, Mr. Trump knew from Roger Stone in advance about the WikiLeaks drop of emails. In July 2016, days before the Democratic Convention, I was in Mr. Trump’s office when his secretary announced that Roger Stone was on the phone. Mr. Trump put Mr. Stone on the speaker phone. Mr. Stone told Mr. Trump that he had just gotten off the phone with Julian Assange, and that Mr. Assange told Mr. Stone that within a couple of days, there would be a massive dump of emails that would damage Hillary Clinton’s campaign.

Mr. Trump responded by stating to the effect, Wouldn’t that be great.

[snip]

Ms. WASSERMAN SCHULTZ. Roger Stone says he never spoke with Mr. Trump about WikiLeaks. How can we corroborate what you are saying?

Mr. COHEN. I don’t know, but I suspect that the special counsel’s office and other government agencies have the information that you are seeking.

[snip]

Mr. COHEN. Yes. I’m sorry. I thought you were talking about a different set of documents that got dumped. So I was in Mr. Trump’s office. It was either July 18th or 19th. And, yes, he went ahead. I don’t know if the 35,000—or 30,000 emails was what he was referring to, but he certainly had knowledge.

Stone would have been calling from the RNC. It’s likely he learned about the emails not from Assange (he was just fluffing his value on that point), but someone whom he met with at the RNC — there has long been speculation this was Nigel Farage. Andrew Miller would be able to corroborate precisely who Stone was meeting before he called the candidate and gave him foreknowledge of the dump.

How Stone learned about WikiLeaks’ plans may be 404(b) information

Mind you, when and from whom Stone learned of WikiLeaks’ plans isn’t necessary to prove that he knowingly lied to the House Intelligence Committee in 2017.

But I suspect Miller’s subpoena comes after some sealed discussions in his case that started in June. On June 26, Judge Amy Berman Jackson permitted the government to file a 404(b) notice under seal as sealed docket item #139.

The Court grants the government’s motion to file under seal but notes it may revisit the need for the seal after it has reviewed the materials more closely. The Clerk of Court is directed to file under seal [139-1] Government’s Notice of Intention to Introduce Evidence Under Federal Rule of Evidence 404(b).

Then, on July 9, ABJ permitted Stone to file the response, as sealed docket item #143 (with two exhibits) under seal.

The Court grants defendant’s motion to file under seal but notes it may revisit the need for the seal after it has reviewed the materials more closely. The Clerk of Court is directed to file under seal [143-1] Defendant’s Response to Government’s Notice of Intention to Introduce Evidence Under Federal Rule of Evidence 404(b), [143-2] Exhibit A to the response, and [143-3] Exhibit B to the response.

On July 26, ABJ permitted the government to file, as sealed docket item #152 (with two exhibits) under seal as part of the motion in limine process deciding what will and will not be admitted.

The Clerk of Court is directed to file under seal [152-2] the Government’s Motion in Limine to Admit Two Newspaper Articles as Part of the Government’s Rule 404(b) Evidence, [152-3] Exhibit A, and [152-4] Exhibit B. Signed by Judge Amy Berman Jackson on 7/26/19.

There’s no sign of an order on 404(b) material (though there are other unexplained sealed docket items). But the fact that the government moved to pre-clear some newspaper articles as evidence under 404(b) may suggest ABJ has ruled.

Rule 404(b) governs whether or not you can introduce evidence that addresses character, other crimes, or other acts, beyond the scope of the indictment.

(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:

(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and

(B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

It is often done to explain a defendant’s purported motive (as it was with Craig). So the government is seeking to provide other evidence of Stone’s rat-fuckery that is not, however, central to the charges against him, lying to Congress.

Which raises the question of what this 404(b) material might be and why it was submitted under seal. On the question of a seal, for comparison sake, the government sealed neither their request to submit evidence on Ukrainian procurement in Paul Manafort’s (aborted) trial under ABJ nor their request to submit evidence that Greg Craig was trying to curry favor with Manafort by hiring his daughter in the former White House’s (unsuccessful) prosecution under ABJ. Those weren’t hugely damning, sure, though the Craig detail was political damaging. Though this is obviously something more sensitive, either because the government still treats it as sensitive or because it would impair Stone’s ability to get a fair trial.

Details about how Stone learned of WikiLeaks’ plans would qualify as the former, and that’s something that Miller’s testimony is likely directly relevant to.

Details of how Stone kept candidate Trump informed of his plans at every step would qualify as the latter (and that’s a detail that is not spelled out in the indictment, even though it should have been).

Both would explain his motive to lie — whatever source he’s been hiding inside a nesting Matryoshka doll of lies constructed with Jerome Corsi, and the degree to which Donald Trump was pushing his rat-fucker to optimize the release of emails stolen by Russian military intelligence to help Trump get elected.

Aside from the detail that Miller’s accounting of Stone’s schedule at the RNC might explain who the source is, the rest of this is all speculative: these are possible answers, but just guesses.

Roger Stone’s birthday party for his freedom

Which brings us to the fundraising birthday card Stone sent out on August 27.

Sent by email and bitching about press coverage, especially the dig against CNN for covering his arrest live, the fundraiser risks falling afoul of ABJ’s gag again.

Nevertheless, Stone risks sanctions for violating the gag to remind his readers, one of whom — President Trump — he names twice, that his trial is quickly approaching. He reminds his readers of the cost he has already paid for not pleading guilty. He reassures his readers, including the named one, that he will not “testify falsely about anyone or anything,”

It’s unclear whether this is a demand for a pre-trial pardon (which would save Trump the embarrassment of the trial), or whether it’s an attempt to call Trump’s attention to his plight. But it’s little different from the messaging back and forth on pardons that Mueller laid out in his report.

Certainly Stone has seen something that makes him want to remind Trump of his oncoming trial.

 

Questions for Robert Mueller (and His Prosecutors) that Go Beyond the Show

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I generally loathe the questions that people are drafting for Robert Mueller’s July 17 testimony before the House Judiciary and Intelligence Committees, largely because those questions are designed for a circus and not to learn information that’s useful for understanding the Mueller investigation. Here are the questions I’d ask instead (I’ll update these before Mueller testifies).

  1. Can you describe how you chose which “links between the Russian government and individuals associated with the campaign of President Donald Trump” to focus your investigation on?
  2. The warrants released in Michael Cohen’s case and other public materials show that your grand jury conducted investigations of people before Rod Rosenstein formally expanded the scope to include them in October 2017. Can you explain the relationship between investigative steps and the Rosenstein scope memos?
  3. Lisa Page has explained that in its initial phase, the investigation into Trump’s aides was separate from the larger investigation(s) into Russian interference. But ultimately, your office indicted Russians in both the trolling and the hack-and-leak conspiracies. How and when did those parts of DOJ’s investigation get integrated under SCO?
  4. An FD-302 memorializing a July 19, 2017 interview with Peter Strzok was released as part of Mike Flynn’s sentencing. Can you describe what the purpose of this interview was? How did the disclosure of Strzok’s texts with Lisa Page affect the recording (or perceived credibility) of this interview? Strzok was interviewed before that disclosure, but the 302 was not finalized until he had been removed from your team. Did his removal cause any delay in finalizing this 302?
  5. At the beginning of the investigation, your team investigated the criminal conduct of subjects unrelated to ties with Russia (for example, Paul Manafort’s ties with Ukraine, Mike Flynn’s ties to Turkey). Did the approach of the investigation change later in the process to immediately refer such issues to other offices (for example, Michael Cohen’s hush payments and graft)? If the approach changed, did your team or Rod Rosenstein drive this change? Is the Mystery Appellant related to a country other than Russia?
  6. Did your integration of other prosecutors (generally from DC USAO) into your prosecution teams stem from a resourcing issue or a desire to ensure continuity? What was the role of the three prosecutors who were just detailees to your team?
  7. Your report describes how FBI personnel shared foreign intelligence and counterintelligence information with the rest of FBI. For more than a year, FBI agents were embedded with your team for this purpose. Were these agents focused just on Russian activities, or did their focus include the actions of other countries and Americans? If their focus included Americans, did it include Trump associates? Did it include Trump himself?
  8. Can you describe the relationship between your GRU indictment and the WDPA one focused on the WADA hacks, and the relationship between your IRA indictment and the complaint against a Yevgeniy Prigozhin employee in EDVA? Can you describe the relationship between the Maria Butina prosecution and your investigation?
  9. Do you regret charging Concord Management in the IRA indictment? Do you have any insight on how indictments against Russian and other state targets should best be used?
  10. In discussions of Paul Manafort’s plea deal that took place as part of his breach hearing, Andrew Weissmann revealed that prosecutors didn’t vet his testimony as they would other cooperators. What led to this lack of vetting? Did the timing of the election and the potential impact Manafort’s DC trial might have play into the decision?
  11. What communication did you receive from whom in response to the BuzzFeed story on Trump’s role in Michael Cohen’s false testimony? How big an impact did that communication have on the decision to issue a correction?
  12. Did Matt Whitaker prevent you from describing Donald Trump specifically in Roger Stone’s indictment? Did you receive any feedback — from Whitaker or anyone else — for including a description of Trump in the Michael Cohen plea?
  13. Did Whitaker, Bill Barr, or Rosenstein weigh in on whether Trump should or could be subpoenaed? If so what did they say? Did any of the three impose time constraints that would have prevented you from subpoenaing the President?
  14. Multiple public reports describe Trump allies (possibly including Mike Flynn or his son) expressing certainty that Barr would shut down your investigation once he was confirmed. Did this happen? Can you describe what happened at the March 5, 2019 meeting where Barr was first briefed? Was that meeting really the first time you informed Rosenstein you would not make a determination on obstruction?
  15. You “ended” your investigation on March 22, at a time when at least two subpoena fights (Andrew Miller and Mystery Appellant) were ongoing. You finally resigned just minutes before Andrew Miller agreed to cooperate on May 29. Were these subpoenas for information critical to your investigation?
  16. If Don Jr told you he would invoke the Fifth if subpoenaed by the grand jury, would that fact be protected by grand jury secrecy? Are you aware of evidence you received involving the President’s son that would lead him to be less willing to testify to your prosecutors than to congressional committees? Can congressional committees obtain that information?
  17. Emin Agalarov canceled a concert tour to avoid subpoena in your investigation. Can you explain efforts to obtain testimony from this key player in the June 9 meeting? What other people did you try to obtain testimony from regarding the June 9 meeting?
  18. Did your investigation consider policy actions taken while Trump was President, such as Trump’s efforts to overturn Russian sanctions or his half-hearted efforts to comply with Congressional mandates to impose new ones?
  19. Can you describe how you treated actions authorized by Article II authority — such as the conduct of foreign policy, including sanctions, and the awarding of pardons — in your considerations of any criminal actions by the President?
  20. The President did not answer any questions about sanctions, even the one regarding discussions during the period of the election. Do you have unanswered questions about the role of sanctions relief and the Russian interference effort?
  21. Your report doesn’t include several of the most alarming interactions between Trump and Russia. It mentions how he told Sergey Lavrov and Sergey Kislyak he had fired Comey because of the Russian investigation, but did not mention that he shared classified Israeli intelligence at the meeting. Your report doesn’t mention the conversations Trump had with Vladimir Putin at the G-20 in Hamburg, including one pertaining to “adoptions,” while he was working on the June 9 meeting. The report doesn’t mention the Helsinki meeting. Did your investigation consider these interactions with Russia? If not, are you aware of another part of the government that did scrutinize these events?
  22. Why did you include Trump’s efforts to mislead the public about the June 9 meeting when it didn’t fit your team’s own terms for obstructive acts?
  23. You generally do not name the Trump lawyers who had discussions, including about pardons, with subjects of the investigation. How many different lawyers are described in your report to have had such discussions?
  24. You asked — but the President provided only a partial answer — whether he had considered issuing a pardon for Julian Assange prior to the inauguration. Did you investigate the public efforts — including by Roger Stone — to pardon Assange during Trump’s Administration?
  25. The cooperation addendum in Mike Flynn’s case reveals that he participated in discussions about reaching out to WikiLeaks in the wake of the October 7 Podesta releases. But that does not appear in the unredacted parts of your report. Is the entire scope of the campaign’s interactions with WikiLeaks covered in the Roger Stone indictment?
  26. Hope Hicks has claimed to be unaware of a strategy to coordinate the WikiLeaks releases, yet even the unredacted parts of the report make it clear there was a concerted effort to optimize the releases. Is this a difference in vocabulary? Does it reflect unreliability on the part of Hicks’ testimony? Or did discussions of WikiLeaks remain partially segregated from the communications staff of the campaign?
  27. How many witnesses confirmed knowing of conversations between Roger Stone and Donald Trump about WikiLeaks’ upcoming releases?
  28. The President’s answers regarding the Trump Tower Moscow match the false story for which Michael Cohen pled guilty, meaning the President, in his sworn answers, provided responses you have determined was a false story. After Cohen pled guilty, the President and his lawyer made public claims that are wholly inconsistent with his sworn written answer to you. You offered him an opportunity to clean up his sworn answer, but he did not. Do you consider the President’s current answer on this topic to be a lie?
  29. Did Trump Organization provide all the emails pertaining to the Trump Tower Moscow deal before you subpoenaed the organization in early 2018? Did they provide those emails in response to that subpoena?
  30. In his answers to your questions, President Trump claimed that you received “an email from a Sergei Prikhodko, who identified himself as Deputy Prime Minister of the Russian Federation … inviting me to participate in the St. Petersburg International Economic Forum.” But the footnotes to your discussion of that exchange describe no email. Did your team receive any email? Does the public record — showing that Trump never signed the declination letter to that investigation — show that Trump did not decline that invitation?

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. 

Beryl Howell’s Whack-a-Mole Grand Juries

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Coverage of the May 29 court hearing that led Roger Stone aide Andrew Miller to testify before a different grand jury describes how his attorney, Paul Kamenar, tried to argue it would be an abuse of the grand jury, because Stone has already been indicted. But after prosecutors (including former Mueller prosecutor Aaron Zelinsky) explained why they needed Miller’s testimony ex parte, Howell upheld the contempt order. (See also CNN and ABC’s coverage.)

Miller, of St. Louis, was on speakerphone Wednesday for the hearing at which U.S. District Chief Judge Beryl A. Howell denied a last-ditch motion by Miller’s attorney, Paul D. Kamenar, to block his client’s grand jury appearance.

Kamenar argued it is an abuse of grand jury process for prosecutors to seek pretrial testimony from a witness about a subject who has already been indicted, also noting that Mueller has issued his final report.

[snip]

Howell said it was long-settled law that prosecutors can properly obtain grand jury testimony to develop additional charges against an indicted target, or to investigate individuals not yet facing charges. Prosecutors can also use evidence against Stone in his pending November trial if it was collected incidentally and not the primary focus of Miller’s questioning, she said.

“The government is not abusing the grand jury process in this case, and the government has need of Mr. Miller’s testimony,” Howell ruled from the bench, upholding her August contempt finding when Miller failed to testify.

“If Mr. Miller does not appear before the grand jury on Friday, he will be in contempt and there will be an arrest warrant issued for him. Do you understand, Mr. Miller?” Howell asked.

“Yes, your honor,” Miller answered over speakerphone.

Prosecutors told the judge in a sealed bench conversation about the ongoing matters in which they seek Miller’s help, but not before Kamenar said that in a May 6 email prosecutors confirmed that one question would regard “what work he did for Stone from 2016 on.”

Presumably, Howell would have known (because she has presided over Mueller’s grand jury from the start) that Miller would testify before a different grand jury.

We now know that Howell had a similar conversation over two months earlier in a hearing (starting at PDF 166) in the Mystery Appellant’s somewhat successful effort to withhold information the government wanted about a state-owned bank. At the hearing, DC Assistant US Attorney Zia Faruqui had replaced Zainab Ahmad as lead prosecutor on the issue (he had started to take over earlier in March, certainly by March 21).

Howell started the hearing by asking why the subpoena was still pending given that Mueller had announced the end of his investigation a week earlier.

Howell: [T]he first question I am going to ask the Government is in the last paragraph of their reply which is: What are we doing here? Why isn’t this whole matter over as of 5 p.m., March 22, when Mr. Mueller delivered his report?

Faruqui: Your Honor, I can say with absolute certainty that the case is robust, ongoing; we are working within our office. The matter was transferred back in fact to the U.S. Attorney’s Office. We have met numerous times with agents. We have reviewed materials, and our plan is to go forward with our investigative steps. We are in constant communication with the special counsel’s office.

It’s very different, I think, to the outside world; but, within the Government, theoretically we are one Government. One AUSA may leave, one prosecutor; but, when there is a case of this import, there is no reason that it would stop because a separate focused matter has been presented with a letter and report.

In response, Howell makes it very clear that this subpoena — for which she would have seen abundant sealed description — was originally presented to her as part of the investigation into Russian influence in the 2016 election, which leads her to be really confused about why the government would still need the information.

Howell: Well, correct me if I’m wrong, but this matter was presented to the Court as one part of the investigation into whether there was Russian influence with the 2016 election, presidential election; and that’s been resolved by the — at least the summary of the special counsel’s report. So there are other aspects of that investigation that led in other directions. So I thought this part — this particular subpoena and leg of the investigation was also related precisely to what Mr. Mueller said he resolved in his report delivered at 5 p.m. on March 22.

So are you saying that this is a different aspect of this investigation related to different inquiries than that?

Faruqui: Yes. That’s correct, Your Honor. I am happy to approach. I think it’s —

Howell: Well, there’s been nothing submitted that — in the Government’s opposition papers that provides any detail about how these records have continuing relevancy to something subject to investigation by the grand jury to warrant continued fines to coerce additional compliance, which we’re going to get to in a minute, or whether there is anything all relevant to an ongoing grand jury investigation from these records that the Government’s continuing to seek.

Faruqui then explains that this matter started in the DC US Attorney’s Office, got bumped to Mueller, and has now been passed back to DC.

Faruqui: So if we can have an opportunity now, or we can refer to portions of the ex parte prior affidavits of the special counsel, I think we can either now or file supplemental briefing to Your Honor to try to further elucidate that. Certainly, the special counsel’s remit, I think, allowed them to take this investigation in.

The investigation initially came into our office and was passed to the special counsel at that time because I think there was a question within the realm of their remit. However, I think it’s very clear I think the matter —

Howell: So are you saying that this investigation started with the D.C. U.S. Attorney’s Office, spent some time within the special counsel’s jurisdiction, so to speak, and is now being given back to the U.S. Attorney’s Office?

Faruqui describes the investigation as being very time consuming and resource-intensive.

Faruqui: That is correct, Your Honor. And it does in fact involve issues that have not or are in any way close to being resolved and very much is a live issue that requires, I think, a great deal of resources, time, and attention by the Government, which is why we believe the subpoena is in fact still a live controversy that requires, I think, a great of [sic] deal resources, time, and attention by the Government, which is why we believe the subpoena is in fact still a live controversy that requires contempt because it goes to the core of the question in this investigation.

Howell: All right. Well, before I got the Government’s opposition, I didn’t know whether the Government’s opposition was going to be, oh, forget the whole thing. I have read all of the ex parte filings, and I am puzzled.

Faurqui: We can supplement —

Howell: What’s still going on here?

Faruqui: We can certainly supplement, Your Honor, with an additional ex parte supplement that will go into greater detail explaining what is being investigated and how it is in no way resolved by what may or may not be in the Mueller report or in AG Barr’s letter to Congress and the public.

These are live issues that require immediate attention from the U.S. Attorney’s Office and from which the grand jury — because the grand jury matter is still alive and being thoroughly investigated, we require the Court to intervene and assist us as we try to force the contemnor to comply fully with our subpoena.

Howell then makes sure the government still is really using a grand jury and Faruqui — in a detail that probably parallels and precedes what happened with Stone’s case — explains that they’re still using the existing grand jury but plan to move onto a new one when the Mueller one expires.

Howell: So you are still presenting evidence to this grand jury that was being used by the special counsel’s office?

Faruqui: We — yesterday, anticipating that the grand jury may or may not — what its life cycle is, it’s a little unclear.

Howell: Well, I am very aware of its life cycle.

Faruqui: We are unaware. I apologize, Your Honor, Yes. It’s your grand jury; you certainly know.

We are trying to sort those issues out with the special counsel. However, we have reopened it yesterday in the grand jury, understanding that the current grand juries that are soon to expire; but with the intention that, when those expire, we will reopen a new one. We do plan to seek additional records, both in — and, potentially, additional testimony as well.

This exchange has significance beyond the Mystery Appellant matter, to Stone and (because the government insists there is are ongoing investigations pertaining to the stuff covered in Paul Manafort’s plea breach hearing) Manafort as well. This case might not even be considered a referral in Mueller’s report, given that it started in DCUSAO. But from Faruqui’s description — and Mystery Appellant’s invocations, at times, to only being bound by Presidential sanctions and turning this into a diplomatic incident — this is a very significant and serious investigation.

Howell, having read multiple secret filings that led her to believe this was about Russian interference in the US election, got really confused after reading Bill Barr’s 4-page memo declaring victory and then learning that something this big, that must, in some way, relate to Russian interference, is still pending.

Aside from being a testament to just how misleading Barr’s memo was, that such confusion was possible for someone privy to the details of the investigation should focus far more attention on the limited scope of Barr’s exonerations. They pertain just to Russian election interference (not, say, graft), and just conspiring with the Russian government (though, if it’s a Russian bank, the Mystery Appellant clearly counts as that). And even the election-related events continue only through the Transition, not afterwards.

The Mueller Investigation is over and Trump has declared victory, but it appears that what Mueller achieved was protecting significant aspects of it long enough to see them metastasize to new grand juries.

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

On Once and Future Mueller Grand Juries: The Texts Obtained from Andrew Miller Overlap with Roger Stone’s Voter Suppression

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Yesterday, two events provided an indication of how extensive what at one time was the Mueller investigation was.

First, Chief Judge Beryl Howell unsealed enough of the Mystery Appellant challenge to reveal that that part of the investigation started in the DC US Attorney’s Office before Mueller got hired and continues. The Mystery Appellant started turning over stuff voluntarily last December, but prosecutors believe it withheld information. Mystery Appellant very clearly waited Mueller out, and it appears that prosecutors did not expect Mueller to finish when he did (which may suggest Bill Barr did shut Mueller down early). The government seems to have a pretty clear idea of what Mystery Appellant withheld.

One of the prosecutors on the case is one of the ones that picked up Paul Manafort’s case.

I’ll write more about what the Mystery Appellant shows up later.

The other piece of news is that Roger Stone’s associate, Andrew Miller, actually testified before a different grand jury, not the Mueller one, and got a follow-up subpoena requiring him to produce all his texts with Roger Stone from October 2016 to March 2017.

A former aide to political operative Roger Stone has turned over to a grand jury all of his text messages with Stone from October 2016 to March 2017, as well as the written agenda for Stone while he was at the Republican National Convention in 2016.

The aide, Andrew Miller, turned over the documents in response to a federal grand jury subpoena following his two-hour testimony last Friday before the body, according to communications between Miller’s lawyer and the government that were reviewed by POLITICO.

[snip]

Adding to the intrigue is the fact that Miller testified before a new grand jury rather than the one convened by Mueller that Miller was initially fighting, and that he was held in contempt over.

That may explain a few of the things we’ve seen recently.

First, recall that Mueller announced, on short notice, that he was done once Miller agreed to testify, but quit before he did testify (Mueller actually quit minutes before the hearing where Howell forced Miller to testify). I wondered then if there was some jurisdictional reason he did that, and this second grand jury may be the reason: that Mueller used his authority to ensure Miller did testify, but resigned in a way to ensure that the other grand jury had uncontested jurisdiction over this.

Now consider this redaction in the Mueller Report showing what appear to be two issues referred elsewhere.

The redaction btC-3 shows it pertains to either Stone or his case. I had suggested that it might be WikiLeaks (this part of the list is in alpha order). But MelissaN suggested it may be Roger Stone himself. This second grand jury (and a Rod Rosenstein comment that the WikiLeaks investigation never left EDVA) may support that.

Now consider the timeline in this post. It shows that the Stone dark money group that he used to prep claims that Hillary was stealing the vote, Stop the Steal, was active during precisely the period the government asked for Miller’s texts with Stone (this was the second incarnation of this group–Stone used an earlier one to harass Ted Cruz voters in advance of the GOP Convention). Indeed, the group pays Miller $5,000 right at the beginning of it (though he also received a few payments from Stone during the summer).

October 4, 2016: Stone tells Bannon to get Rebekah Mercer to send money for his “the targeted black digital campaign thru a C-4”

Following October 5, 2016: Mariia Butina and Aleksandr Torshin discuss whether she should serve as a US election observer; Torshin suggests “the risk of provocation is too high and the ‘media hype’ which comes after it,” but Butina suggests she would do it “Only incognito! Right now everything has to be quiet and careful.”

October 13, 2016: Stop the Steal pays Andrew Miller $5,000

October 23, 2016: Stone tweets out message saying Clinton supporters can “VOTE the NEW way on Tues. Nov 8th by texting HILLARY to 8888”

October 28, 2016: GRU officer Anatoliy Kovalev and co-conspirators visit websites of counties in GA, IA, and FL to identify vulnerabilities

October 30, 2016: Ohio Democratic Party sues Ohio Republican Party to prevent Stop the Steal voter suppression; Democrats also sue in NV, AZ, and PA

November 3, 2016: Filings in ODP lawsuit describing Stop the Steal (declaration, exhibits)

November 4, 2016: Judge James Gwyn issues Temporary Restraining Order against Trump, Stone, and Stop the Steal

November 4, 2016: Guccifer 2.0 post claiming Democrats may rig the elections

November 7, 2016: Sixth Circuit issues a stay in OH TRO

December 14, 2016: Women versus Hillary gives $158.97 to CRAG

December 19, 2016: Stop the Steal pays $5,000 to Alejandro Vidal for “fundraising expenses”

December 19, 2016: Stop the Steal pays $3,500 to C Josi and Co.

December 21, 2016: Stop the Steal pays $1,500 to The Townsend Group

December 27, 2016: Stop the Steal pays $3,500 to Kristen [sic] Davis

December 28, 2016: Stop the Steal gives $94 to CRAG

December 29, 2016: Stop the Steal pays Jerry Steven Gray $4,000 for “fundraising expenses”

December 30, 2016: Stop the Steal pays 2,692 total to unnamed recipients

January 19, 2017: Stop the Steal pays $5,000 for fundraising expenses to Alejandro Vidal

February 8, 2017: Stop the Steal pays Kristen [sic] Davis $3,500 for “fundraising expenses”

February 15, 2017: Stop Steal pays Brad Boeck $862 for sales consultant consulting fee

Remember, too, that Andrew Miller once said he’d invoke the Fifth if asked to testify about his role in these dark money groups.

Miller had asked for “some grant of immunity” regarding financial transactions involving political action committees for which he assisted Stone, according to Alicia Dearn, an attorney for Miller.

On that issue, Miller “would be asserting” his Fifth Amendment right to refuse to answer questions, Dearn said.

And consider that wire fraud variously appeared among the crimes listed on the various warrants targeting Stone (these particular warrants would likely have been the ones issued during the period when Miller was most actively challenging his subpoena).

  • Beryl Howell, CFAA: include “all crimes” (18 U.S.C. § 3 (accessory after the fact); 18 U.S.C. § 4 (misprision of a felony); 18 U.S.C. § 371 (conspiracy); 18 U.S.C. §§ 1505 and 1512 (obstruction of justice); 18 U.S.C. § 1513 (witness tampering); 18 U.S.C. § 1343 (wire fraud); 18 U.S.C. § 1349 (attempt and conspiracy to commit wire fraud), and 52 U.S.C. § 30121 (foreign contribution ban)
  • Beryl Howell, CFAA: includes “all crimes”
  • Beryl Howell, CFAA: includes “all crimes”
  • Beryl Howell, CFAA: ¶¶ 35-40 discuss Stone’s communications with WikiLeaks and Julian Assange: includes “all crimes”
  • Rudolph Contreras, CFAA: ¶ 24 discusses private Twitter message between Stone and Guccifer 2.0: includes “all crimes”
  • James Boasberg, CFAA: includes “all crimes”
  • James Boasberg, CFAA: includes “all crimes”

All of that would be consistent with the possibility that Mueller formally referred (rather than simply passing off) two distinct investigations as he finished up, based on these interim warrants that included wire fraud, one of which focuses on his voter suppression efforts.

Finally, note that by referring this, Mueller may have put it in a place where the decisions Rod Rosenstein made about how aggressively to charge crimes would no longer hold.

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. 

What the Stone Search Warrants Suggest about the Ongoing Investigation into Him

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In a filing opposing Roger Stone’s effort to suppress the fruits of 18 searches against him, the government lays out some details about the investigation into Stone that — especially combined with reports of Andrew Miller’s testimony yesterday — provide some idea of how the investigation into Stone evolved. Here’s how the government describes the 18 search warrants against Stone.

Between August 2017 and February 2019, the government obtained eighteen search warrants for electronic facilities and properties related to Roger Stone. Doc. 109, Exs. 1-18. Many of these search warrants were issued in the District of Columbia by Chief Judge Beryl A. Howell. Doc. 109, Exs. 1-10, 16, 18. Three warrants were issued in the District by other district judges. See Ex. 11 (Judge Contreras); Ex. 12-13 (Judge Boasberg). Others were issued by magistrate judges in other districts. Exs. 14 (S.D.N.Y); Exs. 15, 17 (S.D. Fl.).

Fourteen of the affidavits (“the 1030 warrant affidavits”) allege probable cause that the search will yield evidence of a violation of 18 U.S.C. § 1030, which makes it a crime to “intentionally access[] a computer without authorization or exceed[] authorized access and thereby obtain[]…information from any protected computer.” 18 U.S.C. § 1030(a)(2)(C). See Exs. 1- 13, 18. In brief, each of these affidavits (at a minimum) states that Stone communicated with the Twitter account Guccifer 2.0 about hacked materials Guccifer had posted. Each affidavit states that on June 15, 2016, Guccifer 2.0 publicly claimed responsibility for the hack of the computer systems of the Democratic National Committee (“DNC”). Each affidavit states that Organization 1 published materials stolen from the DNC in the hack. Each affidavit describes Stone’s communications (including his own public statements about them) with Guccifer 2.0, Organization 1, and the head of Organization 1. Each affidavit submits that, based on those communications, there was probable cause to believe that evidence related to the DNC hack would be found in the specified location. Many of these affidavits contain additional evidence alleging probable cause to believe evidence will be found of violations of additional crimes, including 18 U.S.C. § 3 (accessory after the fact); 18 U.S.C. § 4 (misprision of a felony); 18 U.S.C. § 371 (conspiracy); 18 U.S.C. §§ 1505 and 1512 (obstruction of justice); 18 U.S.C. § 1513 (witness tampering); 18 U.S.C. § 1343 (wire fraud); 18 U.S.C. § 1349 (attempt and conspiracy to commit wire fraud), and 52 U.S.C. § 30121 (foreign contribution ban). See, e.g., Exs. 7-13 (all crimes). Stone raises no arguments regarding these other crimes.

In addition, four of the affidavits (the “false statement warrant affidavits”), issued close in time to Stone’s indictment, allege probable cause that the search will yield evidence of false statements, obstruction of justice, and witness tampering. See Exs. 14-17. Those affidavits set forth evidence supporting the allegations in the indictment that Stone made false statements in his September 2017 testimony before the House Permanent Select Committee on Intelligence (“HPSCI”), obstructed ongoing investigations, and tampered with a witness.

The warrants laid out may look something like this: [Note: per this ABJ opinion, this is not correct; Stone’s lawyers did not list the warrants in order.]

  1. Beryl Howell, August 2017, CFAA
  2. Beryl Howell, CFAA
  3. Beryl Howell, CFAA
  4. Beryl Howell, CFAA
  5. Beryl Howell, CFAA
  6. Beryl Howell, CFAA
  7. Beryl Howell, CFAA: include “all crimes” (18 U.S.C. § 3 (accessory after the fact); 18 U.S.C. § 4 (misprision of a felony); 18 U.S.C. § 371 (conspiracy); 18 U.S.C. §§ 1505 and 1512 (obstruction of justice); 18 U.S.C. § 1513 (witness tampering); 18 U.S.C. § 1343 (wire fraud); 18 U.S.C. § 1349 (attempt and conspiracy to commit wire fraud), and 52 U.S.C. § 30121 (foreign contribution ban)
  8. Beryl Howell, CFAA: includes “all crimes”
  9. Beryl Howell, CFAA: includes “all crimes”
  10. Beryl Howell, CFAA: ¶¶ 35-40 discuss Stone’s communications with WikiLeaks and Julian Assange: includes “all crimes”
  11. Rudolph Contreras, CFAA: ¶ 24 discusses private Twitter message between Stone and Guccifer 2.0: includes “all crimes”
  12. James Boasberg, CFAA: includes “all crimes”
  13. James Boasberg, CFAA: includes “all crimes”
  14. SDNY, January 2019, False Statements
  15. SDFL, January 2019, False Statements
  16. Beryl Howell, January 2019, False Statements
  17. SDFL, January 2019, False Statements
  18. Beryl Howell, February 2019, CFAA and False Statements: ¶¶ 64-77 relate to Stone’s conversations with Randy Credico

A May 14, 2019 Amy Berman Jackson minute order demanding that Stone clean up the first iteration of an exhibit list reveals that there were some warrants obtained in August 2018, which may be those from the other DC District judges (and which may suggest they did not come from Mueller’s grand jury, or maybe that Howell took a vacation in August last year).

The Court notes that defendant’s Search Warrant Exhibit, Dkt. 101 (sealed), purports to be a list of the search warrants attached to the motion, but the list lacks exhibit numbers, and the order of the items listed does not correspond to what was actually provided. For instance, the first item on the list indicates that one of the warrants included in the motion was a warrant for the search of defendant’s former home issued by the U.S. District Court for the Southern District of Florida, but neither that warrant nor the application has been supplied to the Court. Also, the Search Warrant Exhibit lists warrants issued by the U.S. District Court for the District of Columbia on August 3, 2018 to three recipients, but only two warrants issued on that date were submitted to the Court (with one of them being filed twice). Finally, a search warrant issued by U.S. District Court for the District of Columbia on August 8, 2018 was filed with the Court but not listed on the Search Warrant Exhibit.

Even though Stone was listed among those Richard Burr told the White House Counsel’s Office on March 16, 2017 that the FBI was investigating, the government did not obtain a search warrant on him until August 2017. Probably, the government started with searches of Stone’s Twitter accounts.

If the warrants are listed in temporal order in Stone’s exhibit (which seems likely given the timing), then it appears that for 13 months, the government pursued Stone for some involvement in the actual hack and leak, with various theories implicating him in the crime, including conspiracy, accessory after the fact, and misprison of a felony.

It appears that got the government to the point where they were trying to get Jerome Corsi to explain how he and Stone learned that WikiLeaks would release John Podesta’s emails. Then he went all Jerome Corsi on the government, and appears to have diverted the investigation, such that the government finalized the false statements, obstruction, and witness tampering indictment currently being prosecuted, but moved away from charging a CFAA-related crime.

It appears likely the government got warrants for his properties in NY and FL and some other facilities in advance of his arrest on January 25. The additional warrant in Florida may reflect a search of a phone or other devices obtained in the raid.

Then (again assuming Stone’s cleaned up exhibit is temporal) there’s a February 2019 warrant, again from Howell (so presumably Mueller’s grand jury). The timing of this may coincide with the threat Stone issued against ABJ herself, possibly including a warrant to Instagram. And/or it could be a follow-up warrant based off something (such as previously unknown devices) discovered in the January 25 searches.

Yesterday, Andrew Miller finally testified after his year long attempt to avoid doing so. He reportedly testified about his relationship with Stone, Stone’s movements and schedule at the 2016 RNC, and Miller’s relationship since then. Given that prosecutors may have returned to their pursuit of a CFAA related case against Stone in February, there may be something about the RNC that they’ve been trying to pin down.

The Mueller Report seems to have a section, starting at Volume I page 176, explaining why distributing stolen emails isn’t a crime, which is consistent with what Barr has said publicly. It clearly has a section, starting at Volume I page 188, explaining why having stolen emails released for you is not an illegal campaign gift. The latter section clearly includes significant discussion of Stone. But given what this description of warrants shows, the first section might, as well.

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

Two Factors that May Change the Impeachment Calculus, Part Two: Criminalizing a Roger Stone Pardon

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In this post, I described how recent developments in Michael Cohen’s case give Congress a number of reasons to use it as a basis for impeachment. The neat fit of so many details might affect the calculus on whether Democrats carry out an impeachment inquiry on Trump.

In this post, I’ll point to a cynical electoral reason to begin impeachment: to prevent Trump from preempting Stone’s pre-election trial which, if it takes place in November 2019 as scheduled, will be utterly damning to the President. Don’t get me wrong — Democrats should move to stop Trump from using pardons to suborn perjury as a basic rule of law thing. But the timing of Stone’s trial and the extent to which it will implicate the President makes that imperative electorally beneficial for Democrats as well.

Even as currently charged, Stone’s case implicates the President directly

As I’ve noted, because everything in the Mueller Report pertaining to Roger Stone got redacted to (appropriately) preserve Stone’s right to a fair trial, lots of details on how Trump himself was involved in pushing Stone to optimize the WikiLeaks releases is redacted.

[I]t seems highly likely that some of the information in these redacted passages is stuff that would only prejudice Stone’s case by raising the import of it to Trump.

Consider, for starters, that (unless I’m mistaken) not a word from Stone’s indictment appears in this Report. [For example,] the indictment makes it clear that Stone was talking to the campaign about WikiLeaks releases.

ROGER JASON STONE, JR. was a political consultant who worked for decades in U.S. politics and on U.S. political campaigns. STONE was an official on the U.S. presidential campaign of Donald J. Trump (“Trump Campaign”) until in or around August 2015, and maintained regular contact with and publicly supported the Trump Campaign through the 2016 election.

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]

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. The head of Organization 1 was located at all relevant times at the Ecuadorian Embassy in London, United Kingdom.

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

We see outlines of precisely who those references are to in the report.

Most notably, after describing Trump’s enthusiasm after Stone told Trump while Michael Cohen was listening on the speaker phone that the DNC emails would drop in a few days just before they did (which Cohen described in his testimony to Oversight), these two paragraphs, appear to to describe Manafort and Trump’s enthusiasm after the DNC release, with Manafort telling both Stone directly and Gates that he wanted to be kept informed via Stone of what was coming. And having gotten some indication of what was coming, the campaign started making plans to optimize those releases. It appears that Gates, like Cohen before him, witnessed a Stone-Trump call where the rat-fucker told the candidate what was coming.

These pages also have more background about how important all this was to Trump, who was frustrated that Hillary’s deleted emails hadn’t been found (something also told, in Flynn’s voice, in the Peter Smith section).

The references to Stone in these passages may well be appropriately redacted. But the descriptions of conversations between Trump and Manafort or Gates should not impact Stone’s defense — unless you want to argue that Trump’s personal involvement in Stone’s rat-fucking might change the deliberations for a jury. They don’t serve to hide Stone’s actions. They hide Trump’s enthusiasm for using materials stolen by Russia to win.

So the part of the 2016 operation that clearly amounted to coordination but was not charged because of First Amendment considerations, and the part of the 2016 operation for which (perhaps because witnesses learned it would not be charged as a conspiracy) there’s the most evidence of Trump’s direct involvement, remains hidden from view out of concerns for Stone’s due process rights.

Right now, Stone’s trial is scheduled to start on November 5. A recent status report on Rick Gates’ cooperation makes it clear he is likely to be a witness at Stone’s trial. While Gates’ testimony is probably not necessary to prove that Stone lied to HPSCI, it would be useful to explain Stone’s motive: significantly, protecting Trump.

If Andrew Miller’s testimony leads to new charges, the tie to Trump may be still more damning

Tuesday, the DC Circuit Court issued its final order in Stone associate Andrew Miller’s challenge to a grand jury subpoena.

Yesterday — technically minutes after Mueller’s press conference announcing the investigation was completed and he’s going home — Judge Beryl Howell rejected another attempt by Miller to challenge the subpoena. Multiple outlets report that he has agreed to testify Friday at 9:30.

Miller’s testimony Friday is premised on potential new charges against Stone and before Howell rejected Miller’s challenge, Aaron “Zelinsky and Jonathan Kravis from the US Attorney’s Office in DC told the judge privately why they still needed Miller.”

Last night, Howell released some of the details behind Miller’s most recent challenge. Along with a useful timeline from Miller’s lawyers on their challenge, it makes it pretty clear that prosecutors are still looking for information on (as Miller lawyer Paul Kamenar describes it) “Roger Stone’s actions during the 2016 election and his involvement in WikiLeaks, Julian Assange, and the hacking of Hillary Clinton’s and the DNC’s emails and any collusion with Russia” or (as Aaron Zelinsky has described it), “Roger Stone’s connection to WikiLeaks, Julian Assange, Guccifer 2.0, Russia.”

In other words, it appears that prosecutors might still indict Stone with new crimes pertaining to the core issues that were under investigation.

That’s one reason I find the timing of Mueller’s announcement so interesting. The Howell hearing yesterday was technically after Mueller’s statement finished. I don’t know when yesterday’s announcement will become official, but it would seem to be final before Friday’s Miller grand jury appearance.

That would mean any charges that former Mueller prosecutor Aaron Zelinsky (as well as DC AUSA Jonathan Kravis, who has picked up the bulk of the ongoing matters from Mueller’s team) might decide to pursue after Friday would be subject neither to the logic of the Mueller investigation — which decided not to charge Stone for some WikiLeaks-related crimes in part based on First Amendment considerations, nor to the direct supervision of Attorney General Barr.

As I’ve noted, the logic EDVA used in its superseding indictment of Assange is in direct conflict with the logic Mueller used in deciding that WikiLeaks’ and Trump’s “wish lists” for Hillary emails do not establish a basis for a conspiracy charge in the same way WikiLeaks’ wish list for classified materials was used. That might mean that decisions made after Miller’s testimony Friday would work out differently than decisions on Stone’s charges in January. Mueller’s off the case. It’s DC US Attorney Jesse Liu’s decision now.

All of which is to say, even assuming Friday’s testimony doesn’t lead to new charges, unless Trump finds a way to pre-empt Stone’s trial, it will mean some of the most damning information about Trump’s involvement in what Mueller didn’t charge as conspiracy but which by most definitions would count as “collusion” will get aired less than a year before the 2020 election.

Given how rock solid that Stone indictment is, there are just two ways to avoid that: for Stone to flip on Trump or others (though prosecutors are unlikely to give Stone a deal without vetting his claims after the way Paul Manafort abused the process, and it would be too late to flip on Assange). Or for Trump to pardon Stone.

Some of the clearest evidence of obstruction of justice in the Mueller Report pertains to Trump floating pardons, including a 2.5 page redacted passage (Volume II pages 128-130) pertaining to Stone himself. Even Bill Barr says it would be a crime to float pardons to prevent someone from testifying truthfully. Note, too, that Mueller asked Trump whether he considered pardoning Assange before he was inaugurated (to which Trump gave a typically contemptuous non-answer), and Stone was involved in an attempt to pardon Assange as recently as January 2018, which has been the subject of Mueller’s questioning.

The political hit from a Stone trial — and the kind of pardon-related obstruction that Barr himself conducted to kill the Iran-Contra investigation — might well be enough for Trump to prefer the political hit of pardoning Stone. Democrats have one way of altering that calculus to ensure the Stone trial — with all the damning details of Trump’s actions it’ll reveal — happens as scheduled.

While I’m not, at all, a fan of gaming trials for political effect, the fact of the matter is that if Stone’s trial goes forward, it would present as damning a case against Trump’s cheating as any impeachment trial could do. But to ensure that happens, Democrats need to make it clear that pardoning his way out of this will incur even greater costs for the President.

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

Mueller’s Presser

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Robert Mueller just gave a press conference, at which he announced the conclusion of the investigation, the formal closure of the office, and his resignation.

The press conference emphasized several things:

  • There were “multiple systematic efforts to interfere in our election and that allegation deserves the attention of every American”
  • There was “insufficient evidence to charge a broader conspiracy” between Trump and Russia
  • They didn’t charge Trump for obstruction because of the OLC memo
  • The OLC memo nevertheless permits an investigation of the President, in part to gather and preserve evidence
  • Mueller’s office also did not charge Trump out of fairness, because there would not be a venue for him to assert his innocence
  • Mueller will not testify to Congress beyond the report
  • Any further “access to our underlying work product” is not being handled by the office

Mueller just made it clear this was an impeachment referral. Now it’s time for HJC to act on it.

Here are his full comments:

Two years ago, the Acting Attorney General asked me to serve as Special Counsel, and he created the Special Counsel’s Office.

The appointment order directed the office to investigate Russian interference in the 2016 presidential election. This included investigating any links or coordination between the Russian government and individuals associated with the Trump campaign.

I have not spoken publicly during our investigation. I am speaking today because our investigation is complete. The Attorney General has made the report on our investigation largely public. And we are formally closing the Special Counsel’s Office. As well, I am resigning from the Department of Justice and returning to private life.

I’ll make a few remarks about the results of our work. But beyond these few remarks, it is important that the office’s written work speak for itself.

Let me begin where the appointment order begins: and that is interference in the 2016 presidential election.

As alleged by the grand jury in an indictment, Russian intelligence officers who were part of the Russian military launched a concerted attack on our political system.

The indictment alleges that they used sophisticated cyber techniques to hack into computers and networks used by the Clinton campaign. They stole private information, and then released that information through fake online identities and through the organization WikiLeaks. The releases were designed and timed to interfere with our election and to damage a presidential candidate.

And at the same time, as the grand jury alleged in a separate indictment, a private Russian entity engaged in a social media operation where Russian citizens posed as Americans in order to interfere in the election.

These indictments contain allegations. And we are not commenting on the guilt or innocence of any specific defendant. Every defendant is presumed innocent unless and until proven guilty in court.

The indictments allege, and the other activities in our report describe, efforts to interfere in our political system. They needed to be investigated and understood. That is among the reasons why the Department of Justice established our office.

That is also a reason we investigated efforts to obstruct the investigation. The matters we investigated were of paramount importance. It was critical for us to obtain full and accurate information from every person we questioned. When a subject of an investigation obstructs that investigation or lies to investigators, it strikes at the core of the government’s effort to find the truth and hold wrongdoers accountable.

Let me say a word about the report. The report has two parts addressing the two main issues we were asked to investigate.

The first volume of the report details numerous efforts emanating from Russia to influence the election. This volume includes a discussion of the Trump campaign’s response to this activity, as well as our conclusion that there was insufficient evidence to charge a broader conspiracy.

And in the second volume, the report describes the results and analysis of our obstruction of justice investigation involving the President.

The order appointing me Special Counsel authorized us to investigate actions that could obstruct the investigation. We conducted that investigation and we kept the office of the Acting Attorney General apprised of the progress of our work.

As set forth in our report, after that investigation, if we had confidence that the President clearly did not commit a crime, we would have said that.

We did not, however, make a determination as to whether the President did commit a crime. The introduction to volume two of our report explains that decision.

It explains that under long-standing Department policy, a President cannot be charged with a federal crime while he is in office. That is unconstitutional. Even if the charge is kept under seal and hidden from public view—that too is prohibited.

The Special Counsel’s Office is part of the Department of Justice and, by regulation, it was bound by that Department policy. Charging the President with a crime was therefore not an option we could consider.

The Department’s written opinion explaining the policy against charging a President makes several important points that further informed our handling of the obstruction investigation. Those points are summarized in our report. And I will describe two of them:

First, the opinion explicitly permits the investigation of a sitting President because it is important to preserve evidence while memories are fresh and documents are available. Among other things, that evidence could be used if there were co-conspirators who could now be charged.

And second, the opinion says that the Constitution requires a process other than the criminal justice system to formally accuse a sitting President of wrongdoing.

And beyond Department policy, we were guided by principles of fairness. It would be unfair to potentially accuse somebody of a crime when there can be no court resolution of an actual charge.

So that was the Justice Department policy and those were the principles under which we operated. From them we concluded that we would not reach a determination – one way or the other – about whether the President committed a crime. That is the office’s final position and we will not comment on any other conclusions or hypotheticals about the President.

We conducted an independent criminal investigation and reported the results to the Attorney General—as required by Department regulations.

The Attorney General then concluded that it was appropriate to provide our report to Congress and the American people.

At one point in time I requested that certain portions of the report be released. The Attorney General preferred to make the entire report public all at once. We appreciate that the Attorney General made the report largely public. I do not question the Attorney General’s good faith in that decision.

I hope and expect this to be the only time that I will speak about this matter. I am making that decision myself—no one has told me whether I can or should testify or speak further about this matter.

There has been discussion about an appearance before Congress. Any testimony from this office would not go beyond our report. It contains our findings and analysis, and the reasons for the decisions we made. We chose those words carefully, and the work speaks for itself.

The report is my testimony. I would not provide information beyond that which is already public in any appearance before Congress.

In addition, access to our underlying work product is being decided in a process that does not involve our office.

So beyond what I have said here today and what is contained in our written work, I do not believe it is appropriate for me to speak further about the investigation or to comment on the actions of the Justice Department or Congress.

It is for that reason that I will not take questions here today.

Before I step away, I want to thank the attorneys, the FBI agents, the analysts, and the professional staff who helped us conduct this investigation in a fair and independent manner. These individuals, who spent nearly two years with the Special Counsel’s Office, were of the highest integrity.

I will close by reiterating the central allegation of our indictments—that there were multiple, systematic efforts to interfere in our election.

That allegation deserves the attention of every American.

 

Note: The DC Circuit Court issued its mandate in the Andrew Miller subpoena yesterday, and there were two sealed filings in the District docket yesterday. That likely means Miller has complied and that’s what Mueller was waiting on.

 

Update: Katelyn Polantz reports that Miller will testify Friday at 9:30.

In a Shoddy Attempt to Inflate the Single Server Fallacy, Roger Stone Suggests Communicating with Guccifer 2.0 Would Be Criminal

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In a frivolous pair of motions, Roger Stone is going after CrowdStrike’s analysis of the Russian hack. In the first, he demands full unredacted copies of CrowdStrike’s reports on the hacks. He bases that demand on a claim the CrowdStrike reports are material to a motion to suppress the warrants against him because — he claims, falsely — the government relied exclusively on the CrowdStrike reports to decide Russia had hacked Democratic targets, so if the reports are faulty, then so are the warrants.

The entire stunt is based off what appears to be an inaccurate claim — that this government response to some other frivolous motions claimed they didn’t have to prove that Russia hacked Democratic targets.

The Government stated in its Opposition to Stone’s Motion to Dismiss (Dkt # 99) that it will not be required to prove that the Russians hacked either the Democratic National Committee (“DNC”) or Democratic Congressional Campaign Committee (“DCCC”) from outside their physical premises or that the Russians were responsible for delivering the data to WikiLeaks.

Maybe he’s thinking of another government response to his motions that notes they don’t have to prove an underlying crime to prove obstruction, but the one he cites (without paragraph citation) doesn’t make that claim. I mean, it is true that the government doesn’t have to prove the underlying crime, but that’s still another issue than having to prove what physical premises the Russians hacked the DNC from.

In his demand for the CrowdStrike servers, Stone at least claims he’s making the demand to distinguish his case from all the other Trump flunkies prosecuted for lying to Congress and mount a materiality challenge to his false statements prosecution.

As to selective prosecution, if the Russian state did not hack the DNC, DCCC, or Podesta’s servers, then Roger Stone was prosecuted for obstructing a congressional investigation into an unproven Russian state hacking conspiracy, while others similarly situated were not. Lastly, if the Russian state did not hack the servers or did not transfer the data to WikiLeaks, the exculpatory evidence regarding materiality, a factual issue for the jury, is amplified.

But in his Fourth Amendment challenge, Stone suggested that if Russia didn’t hack the Democrats and hand the documents to WikiLeaks, then speaking to WikiLeaks and Guccifer 2.0 would not be a crime.

If these premises are not the foundation for probable cause, Roger Stone communicating with a Twitter user named “Guccifer 2.0” or speaking with WikiLeaks, would not constitute criminal activity.

Hmm.

Speaking to WikiLeaks and Guccifer 2.0 would only be a crime if Stone engaged in a conspiracy with them, and a good bit of the redacted language on prosecutorial decisions in the Mueller Report probably says the First Amendment otherwise protects such speech. That said, the claim that talking to them would be a crime is interesting given some of the crimes for which the government showed probable cause in his warrant affidavits.

The search warrant applications however, allege that the FBI was investigating various crimes at different times, such as Stone for accessory after the fact, misprision of a felony, conspiracy, false statements, unauthorized access of a protected computer, obstruction of justice, witness tampering, wire fraud, attempt and conspiracy to commit wire fraud, and foreign contributions ban. The uncharged conduct particularly relied upon the assumptions the Russian state is responsible for hacking the DNC, DCCC,1 and even (although not as clear) Hillary Clinton campaign manager, John Podesta.

Stone is not, here, claiming that the government didn’t show a lot of evidence he engaged in these crimes (and remember, the government has told Andrew Miller that they’re likely to supersede Stone’s current indictment after they get Miller’s grand jury testimony, the content of which they know from an FBI interview last year). Rather, he’s claiming that these hacking-related crimes would only be illegal if the Russians did the hacking. (I really look forward to the government response to this, because some of these crimes would be crimes based on Julian Assange’s foreign status, not GRU’s, and wire fraud is a crime all by itself.)

Perhaps most interesting is the way Stone’s lawyers dismiss the Mueller Report (and the GRU indictment’s) focus on DCCC and Podesta documents. A footnote even suggests falsely that the Mueller Report said the DCCC documents did not get released.

WikiLeaks never released the DCCC documents. The Mueller report suggests the hack of the DCCC only provided additional keys to access the DNC servers.

At one point — perhaps a critical one — Stone uses the fact that the GRU hacked the DNC’s AWS server after Stone dismissed the value of the DCCC oppo research Guccifer 2.0 discussed with Stone in early September 2016 to suggest CrowdStrike was not competent.

CrowdStrike’s three draft reports are dated [sic] August 8 and August 24, 2016. The Mueller Report states Unit 26165 officers also hacked into a DNC account hosted on a cloud-computing service on September 20, 2016, thereby illustrating the government’s reliance on CrowdStrike even though the DNC suffered another attack under CrowdStrike’s watch.

Of course, CrowdStrike had little ability to protect AWS’ servers.

Ultimately, this is an attempt to misrepresent the Mueller Report and GRU indictment to shift the focus away from the Podesta and DCCC documents — where Stone’s greater criminal exposure might lie — and onto the Single Server Fallacy about the DNC server, which is irrelevant to those other documents.

And along the way, Stone lays out a good number of impressive crimes he was and may still be at risk for, and admits the government believed his actions are closely enough tied to the hacks to get redacted copies of the CrowdStrike reports in discovery. He also concedes (incorrectly) that simply speaking to WikiLeaks and Guccifer 2.0 may be a crime.

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

The Many Sided Stone: The Investigation Is Not Over

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

Roger Stone’s cry for help

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

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

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

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

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

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

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

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

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

Stone’s throw of the dice

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

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

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

Embarrass Credico

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

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

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

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

Appeal to Barr and Trump

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

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

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

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

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

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

Engage in graymail

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

Misstate Barr’s citation of Mueller’s findings

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

Andrew Miller claims he has been mooted

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

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

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

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

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

Mueller may be done but prosecutors are not

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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