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The Press Gets Utterly Snookered on the White House Rebranding of the Same Old Unrelenting Obstruction of Congressional Prerogatives

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Yesterday, the White House sent a letter to Nancy Pelosi and just some of the Committee Chairs conducting parts of an impeachment inquiry into the President, purporting to refuse to participate in that impeachment inquiry. Since then, there has been a lot of shocked coverage about how intemperate the letter is, with particular focus on the fact that White House Counsel, Pat Cipollone, used to be considered a serious lawyer. There has been some attempt to analyze the letter as if it is a legal document and not instead the President’s rants packaged up in Times Roman and signed by one of his employees. A number of outlets have thrown entire reporting teams to do insipid horse race coverage of the letter, as if this is one giant game, maybe with nifty commercials on during halftime.

None I’ve seen have described the letter as what it is: an attempt to rebrand the same old outright obstruction that the White House has pursued since January.

The tell — for those teams of well-compensated journalists treating this as a factual document — might have been the addressees. While the letter got sent to Adam Schiff, Eliot Engel, and Elijah Cummings, it did not get sent to Jerry Nadler, who has been pursuing an impeachment inquiry of sorts since the Mueller Report came out. The White House knows Nadler is also part of the impeachment inquiry, because even as the White House was finalizing the letter, Trump’s DOJ was in DC Chief Judge Beryl Howell’s courtroom fighting a House Judiciary request for materials for the impeachment inquiry. In the hearing, DOJ literally argued that the Supreme Court’s 8-0 US v. Nixon was wrongly decided.

Howell picked up on that point by pressing DOJ to say whether then-U.S. District Court Chief Judge John Sirica was wrong in 1974 to let Congress access a detailed “road map” of the Watergate grand jury materials as it considered President Richard Nixon’s impeachment.

Shapiro argued that if the same Watergate road map arose today, there’d be a “different result” because the law has changed since 1974. She said the judge wouldn’t be able to do the same thing absent changes to the grand jury rules and statutes.

Howell sounded skeptical. “Wow. OK,” she replied.

DOJ also argued that Congress would have to pass a law to enshrine the principle that this binding Supreme Court precedent already made the law of the land.

In the HJC branch of the impeachment inquiry, the few credible claims made in yesterday’s letter — such as that Congress is conducting the inquiry in secret without the ability to cross-examine witnesses or have Executive Branch lawyers present — are proven utterly false. And with the claims made in yesterday’s hearing, the Executive demonstrated that they will obstruct even measured requests and negotiations for testimony.

The Trump White House obstructed normal Congressional oversight by absolutely refusing to cooperate.

The Trump White House obstructed an impeachment inquiry focused on requests and voluntary participation.

The Trump White House obstructed an impeachment inquiry where subpoenas were filed.

The Trump White House obstructed an impeachment inquiry relying on whistleblowers who aren’t parties to the White House omertà.

The Trump White House obstructed what numerous judges have made clear are reasonable requests from a co-equal branch of government.

Nothing in the White House’s conduct changed yesterday. Not a single thing. And any journalist who treats this as a new development should trade in her notebooks or maybe move to covering football where such reporting is appropriate.

It is, however, a rebranding of the same old unrelenting obstruction, an effort to relaunch the same policy of unremitting obstruction under an even more intransigent and extreme marketing pitch.

And that — the need to rebrand the same old obstruction — might be worthy topic of news coverage. Why the White House feels the need to scream louder and pound the table more aggressively is a subject for reporting. But to cover it, you’d go to people like Mitt Romney and Susan Collins, who already seem to be preparing to explain votes against the President. You even go to people like Lindsey Graham, who is doing ridiculous things to sustain Rudy Giuliani’s hoaxes in the Senate Judiciary Committee — but who has condemned the principle of making the country dramatically less safe for whimsical personal benefit in Syria. Or you go to Richard Burr, who quietly released a report making it clear Russia took affirmative efforts to elect Trump in 2016.

This week, Trump looked at the first few Republicans getting weak in the knees and his response was to double down on the same old policies, while rolling out a campaign trying to persuade those weak-kneed members of Congress who are contemplating the import of our Constitution not to do so.

The President’s former lawyer testified earlier this year, under oath, that this has always been a branding opportunity to Donald Trump.

Donald Trump is a man who ran for office to make his brand great, not to make our country great. He had no desire or intention to lead this nation – only to market himself and to build his wealth and power. Mr. Trump would often say, this campaign was going to be the “greatest infomercial in political history.”

His latest attempt to cajole Republican loyalty is no different. It’s just a rebranding of the same intransigence. Treating it as anything but a rebranding is organized forgetting of what has taken place for the last nine months, and journalists should know better.

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. 

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. 

The Trump Men and the Grand Jury Redactions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Supreme Court Has Already Agreed that the Mystery Appellant Caused a “Direct Effect” in the United States

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I’d like to make a minor — but I think important — point about the DC Circuit opinion in the Mystery Appellant challenge to what is believed to be a Robert Mueller subpoena. Assuming that this is a challenge to a Special Counsel subpoena, then the Supreme Court has already agreed with Mueller — in dissolving a stay of financial penalties for blowing off a subpoena — that some company owned by a foreign country took an action outside the US that had an effect inside the US, in an investigation into what happened during an election.

This post will assume that this is a Mueller subpoena. Some of the evidence backing that assumption includes:

  • DC District Chief Judge Beryl Howell issued the original order; she presides over Mueller’s grand jury
  • A lawyer asked for Mueller’s latest sealed filing on the day a response from the Mystery Appellant was due
  • Greg Katsas recused from consideration of this case; he had said he would recuse on Mueller related issues
  • The secrecy for the hearing before the DC Circuit, and arguably the review process for this challenge, were exceptional
  • Mueller lawyers Michael Dreeben and Zainab Ahmad were seen returning to his office after the DC Circuit hearing

Judges David Tatel, Thomas Griffith, and Stephen Williams issued their order on December 18. The Mystery Appellant appealed to the Supreme Court, and over Christmas John Roberts took briefing on that appeal. Last week the Supreme Court declined to uphold the stay, effectively agreeing with the Circuit’s decision.

And that’s important, because a key part of the now-public (though still partly sealed) DC Circuit opinion explains how the presumed Mueller request overcomes the sovereign immunity of the company in question. The request must involve — among other things — an exception to sovereign immunity.

Taking section 1604 ‘s grant of immunity as a given, the government must check three boxes for the contempt order to stand. First, there must be a valid grant of subject-matter jurisdiction. Second, one of the Act’s exceptions to immunity must apply. And third, the contempt sanctions must be a permissible remedy. According to the district court, the government satisfies all three. We agree.

Mueller claimed that this qualified as an exception because the request involves an “act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere [when] that act causes a direct effect in the United States.”

Moving to those exceptions, in its ex parte filing the government steers us to the third clause of section 1605(a)(2). That provision denies immunity in an “action … based … upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere [when] that act causes a direct effect in the United States.” Ordinarily, the Corporation would bear the burden to establish that the exception does not apply. See EIG Energy FundXIV, L.P. v. Petroleo Brasileiro, S.A., 894 F.3d 339, 344- 45 (D.C. Cir. 2018) (“[T]he foreign-state defendant bears the burden of establishing the affirmative defense of immunity,” including “‘proving that the plaintiff’s allegations do not bring its case within a statutory exception to immunity.”‘ (quoting Phoenix Consulting Inc. v. Republic of Angola, 216 F .3d 36, 40 (D.C. Cir. 2000))).

And because Mueller relied on an ex parte filing to make that case, all the judges involved — Howell, Tatel, Griffith, Williams, Roberts, and whoever else at SCOTUS reviewed this — relied on the argument that Mueller’s lawyers laid out about the request.

Here, however, the government relies primarily on ex parte evidence unavailable to the Corporation. We have repeatedly approved the use of such information when “necessary to ensure the secrecy of ongoing grand jury proceedings,” In re Sealed Case No. 98-3077, 151 F.3d 1059, 1075 (D.C. Cir. 1998), and we do so again here. But where the government uses ex parte evidence, we think the burden falls on the government to establish that the exception applies, and we will conduct a searching inquiry of the government’s evidence and legal theories as a substitute for the adversarial process.

In a sealed discussion of Mueller’s ex parte filing, the DC Circuit finds a “reasonable probability” that that section covers this subpoena. It goes further and states that it doesn’t have to decide what the gravamen of the subpoena is, which suggests that something about this request makes it very clear that the company both possess the records and that they are relevant to Mueller’s investigation.

The “gravamen” of a subpoena may be the mere fact that an entity possesses the documents in question. Alternatively, the “gravamen” may be related to the content of the records and why they may be relevant to the government’s investigation. Indeed, the correct approach may well vary with the facts of a given case. Here, however, we need not resolve that issue [redacted]

There’s some other redacted discussion that dismisses a claim made by the corporation that will be interesting for the history books. But the DC Circuit is clear that the request — as laid out in an ex parte filing presumably written by Mueller’s lawyers — clears the subject matter question.

None of this analysis tells us enough about the company for us to guess what foreign company it is. The WaPo says it is a financial institution. I happen to think that Qatar or the Emirates’ investment authority are the most likely candidates but that’s just an educated guess.

Still, if this is indeed a Mueller subpoena, given the topic of Mueller’s inquiry and his fairly clear discipline at staying within the scope of it, that nevertheless is a signifiant revelation. That’s because Mueller is investigating events relating to an election. And most acts by a company owned by a foreign country that cause an effect in this country — if they have some relationship with that election — would be illegal. It could be the payoff for a bribe. It could be a more direct expenditure associated with the campaign. It could be a payment associated with activities that occurred during the campaign.

Maybe it’s something far more obscure. But any of the obvious applications here would all implicate a foreign country influencing — directly or indirectly — the election. And SCOTUS has already reviewed that Mueller argument, and found it reasonable.

That doesn’t mean SCOTUS has reviewed the evidence the company has, it doesn’t mean the company will turn over the evidence (though it would already incurred something like $300,000 to avoid compliance), it doesn’t mean the evidence proves whatever crime Mueller has cited in demanding it.

But SCOTUS has, at a minimum, found Mueller’s argument that such evidence would be relevant to his criminal investigation reasonable.

Update: Added language to make what happened — SCOTUS dissolved the stay — technically correct.

Update: And SCOTUS is now debating whether to allow the Mystery Appellant to file cert under seal or not.

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. 

No, Mueller Probably Didn’t Subpoena Trump, Yet

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Nelson Cunningham, who has far better legal qualifications than I do but who, as far as I’ve seen, has written very little on the Mueller investigation has taken Politico’s very good reporting on a second appeal involving the Mueller inquiry and started a parlor game among people convinced this means Trump got a subpoena. Jay Sekulow has already denied the report.

Cunningham bases his argument on the following observations, along with the observation that the initial court filings came the day after Rudy Giuliani announced he had completed writing a challenge to an as yet unserved subpoena:

  • The parties and the judges have moved with unusual alacrity. Parties normally have 30 days to appeal a lower court action. The witness here appealed just five days after losing in the district court – and three days later filed a motion before the appellate court to stay the district court’s order. That’s fast.
  • The appeals court itself responded with remarkable speed, too. One day after getting the witness’s motion, the court gave the special counsel just three days to respond – blindingly short as appellate proceedings go. The special counsel’s papers were filed October 1.
  • At this point an unspecified procedural flaw seems to have emerged, and on October 3, the appeals court dismissed the appeal. Just two days later, the lower court judge cured the flaw, the witness re-appealed, and by October 10 the witness was once again before appellate court. Thanks to very quick action of all the judges, less than one week was lost due to a flaw that, in other cases, could have taken weeks or months to resolve.
  • Back before the D.C. Circuit, this case’s very special handling continued. On October 10, the day the case returned to the court, the parties filed a motion for expedited handling, and within two days, the judges had granted their motion and set an accelerated briefing schedule. The witness was given just 11 days to file briefs; the special counsel (presumably) just two weeks to respond; and reply papers one week later, on November 14 (for those paying attention, that’s 8 days after the midterm elections). Oral arguments are set for December 14.

I suspect the subpoena — if that’s what this is — is either for a White House figure (John Kelly or Don McGahn might be possibilities), a lawyer (Trump Organization lawyers Alan Garten and Alan Futerfas both had non-privileged conversations about the pushback on the June 9 meeting, as did Agalarov lawyer Scott Balber), or a journalist (Chuck Johnson and Lee Stranahan have denied having been contacted by Mueller; Hannity would be another possibility).

I’ve laid out the underlying timeline, below. There are three dockets involved in the mystery challenge: 18-gj-41-BAH, which is sealed, and 18-3068 and 18-3071 before the DC Circuit. For point of comparison, I’ve included Andrew Miller’s appeal of a grand jury subpoena in the timeline (which Cunningham doesn’t mention at all), in italics, as well; those docket numbers are 18-gj-34-BAH and 18-3052. I’ve also included some key public reports that Cunningham doesn’t mention that provide key context.

Miller’s docket easily disproves one of Cunningham’s arguments: that the appeal itself was very quick. Miller, like the mystery challenger, both filed their appeal within days (suggesting that timing came from Beryl Howell, not the appellants). With Miller, there was a pause to litigate the issue of Concord Management’s status, but that pause was litigated on the same accelerated schedule as the jurisdictional issue for the mystery appellant. With the mystery appellant, there appeared to be some slam dunk procedural issue for why the Circuit did not yet have jurisdiction. It was suggested to me that the mystery person may not have taken the legal step of being held in contempt before appealing, as Miller did, which would explain the quick jurisdictional response for the mystery challenger.

Miller’s docket also shows that the results of motion to expedite aren’t that dramatic. With no expedited schedule, Miller’s initial schedule (including the Concord litigation) provided him 24 days for his opening brief, gave Mueller 16 days to respond, and Miller 5 days to reply, with 41 days for the Circuit to consider the appeal or a total of 85 days after the filing. As Cunningham notes, the mystery appellant got just 11 days to file the initial brief, Mueller got two weeks to respond, and the mystery appellant got 7 days to reply. The Circuit gave themselves a month to consider the appeal, or a total of 65 days from second appeal. But that works out to be 81 days from the initial September 24 appeal, about the same amount of time as Miller’s appeal. The expedited time here mostly came out of the appellant’s time for the initial brief and the Circuit consideration (which might be a fair outcome given the appeal without jurisdiction); Mueller’s schedule remains roughly similar. It has been suggested that the mystery appellant’s decision to appeal in spite of that procedural flaw may have provided more urgency for the appeal (for example, if Howell had not stayed contempt for the mystery appellant, then the risk of jailing would be greater than it would be for Miller, for whom she stayed the contempt).

Finally, Cunningham doesn’t consider something else in the public record. On October 11, right in the middle of this litigation, CNN revealed that Mueller had given Trump — and Trump was working on — a set of questions pertaining to conspiracy. The other day, Bloomberg reported that Trump had finished answers to that question, but was withholding them pending the outcome of the election. It’s possible that the White House would voluntarily answer questions on conspiracy while litigating a subpoena for testimony on obstruction. Perhaps they would adopt that approach if their subpoena challenge pertains exclusively to actions Trump took as President, and if that were the case, that might explain the real reason Rudy was stalling on returning the answers, to see if the subpoena challenge worked. If that were the case, though, he would have to invent new reasons to explain the delay from November 6 past December 14, when the case will be heard (and he has promised to appeal any subpoena to SCOTUS). Alternately, Rudy could be stalling on the answers to await the appeal and using the election as his excuse just to avoid making this appeal public before the election.

One other thing that might support Cunningham’s argument that he doesn’t raise is Brett Kavanaugh’s confirmation on October 6. Having confirmed Kavanaugh might explain the decision to ask for en banc consideration of what is probably a slam dunk procedural issue, in hopes of short circuiting the route to SCOTUS. But everyone in this investigation, including Yevgeniy Prigozhin’s team, have tailored their actions to Kavanaugh’s presence on SCOTUS since even before he was confirmed.

Still, I think all that less likely than other explanations, not least because this White House has never kept things like this secret, nor would they if they could use it to argue that Trump needs a good electoral turnout to keep him safe, legally.

I’m at least as intrigued by the way the timeline overlaps with Don McGahn’s last big press push, around the same time as the initial filing before Beryl Howell. A lawyer like McGahn would also have reason to want to avoid the jurisdictional step of being held in contempt (indeed, if he had been held in contempt, it might explain one reason for the urgency of the appeal). It’s also one possible explanation for why someone would skip that step — another being that whoever is making this challenge is even less well-lawyered than Miller. Finally, if it were McGahn appealing a grand jury subpoena, Katsas’ recusal would be a no-brainer (though he has said he would recuse more generally).

There are, still, plenty of other possibilities, though. And Cunningham’s case is nowhere near as strong as suggested once you compare it with what happened with the relatively anonymous, powerless Andrew Miller challenge in the very same matter.

Timeline

6/13/2018: Date filed (18-gj-34-BAH) [For more on Miller’s stalling, since May 10, on this subpoena, see this post]

7/6/2018: Report that Emmet Flood had been contesting Mueller request for John Kelly testimony for a month

8/10/2018: Date of judgment (18-gj-34-BAH)

8/14/2018: Notice of appeal (18-3052)

8/15/2018: Clerks order to file initial submissions on 8/30/2018 (18-3052)

8/16/2018: Per curium order setting briefing Appellant 9/7/2018, Appellee 9/23/2018, Reply 9/28/2018  (18-3052)

8/15/2018: Rudy Giuliani states, “we’re pretty much finished with our memorandum opposing a subpoena”

8/16/2018: Date filed (18-gj-41-BAH)

8/18/2018: NYT story describing third Don McGahn interview claiming unprecedented cooperation for a White House Counsel

8/30/2018 : Statement of issues (18-3052)

8/30/2018: Motion to extend time to file to 9/10/2018  (18-3052)

9/10/2018: Motion to extend time to file to 9/11/2018  (18-3052)

9/12/2018: Appellant brief submitted; Length of Brief: 10,869 Words (18-3052)

9/19/2018: Date of judgment (18-gj-41-BAH)

9/24/2018: Notice  of appeal  (18-3068)

9/27/2018: Motion to stay underlying appeal  (18-3068)

9/28/2018: Per curium order directing response from Mueller (18-3068)

9/28/2018: Appellee brief submitted  (18-3052)

10/01/2018: Mueller response in opposition (18-3068)

10/01/2018: Appellant response  (18-3068)

10/03/2018: Per curium order dismissing case for lack of jurisdiction  (18-3068)

10/05/2018: Date of order  (18-gj-41-BAH)

10/05/2018: Petition for re-hearing en banc  (18-3068)

10/6/2018: Brett Kavanaugh confirmed

10/09/2018: Appellant brief submitted (18-3052)

10/09/2018: Notice of appeal (18-3071)

10/10/2018: Appeal docketed (18-3071)

10/10/2018: Joint motion to expedite  (18-3071)

10/11/2018: Report that Trump preparing answers to Mueller’s questions about conspiracy with Russia

10/12/2018: Per curium order granting motion to expedite Appellant 10/23/2018, Appellee 11/07/2018, Reply 11/14/2018:  (18-3071)

10/22/2018: Hearing scheduled for 12/14/201 (18-3071)

10/22/2018: Appellant brief submitted; Length of Brief: 12904 words (18-3071)

10/24/2018: Per curium order denying re-hearing en banc (with Greg Katsas recused) (18-3068)

10/29/2018: Rudy Giuliani states legal team has prepared written responses to several dozen questions from Special Counsel Robert Mueller but say they won’t submit them until after next week’s elections and only if they reach a broader agreement with Mueller on terms for the questioning

11/8/2018: Hearing scheduled (85 days after filing)

12/14/2018: Hearing scheduled (65 days after filing) (18-3071)

Spy Versus Spy: The Two Alleged Agents of Foreign Powers Sitting in the Alexandria Jail, Part One (Paulie)

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The Alexandria jail houses two alleged criminal agents of foreign influence: Paul Manafort and Mariia Butina. In the coming days, both may present interesting questions about the boundaries the US uses to define — and criminalize — foreign influence peddling. Legal questions in their prosecutions will address two questions:

  • What does it take to criminalize a failure to register as an Agent of a Foreign Principal?
  • What are the boundaries between Agent of Foreign Principals and Foreign Governments?

At issue are two laws: the Foreign Agents Registration Act, 22 USC 611 et seq., which requires certain people engaging in politics and propaganda for non-commercial foreign entities to register as their agents and to disclose the propaganda they disseminate. Mostly, FARA is a documentary requirement, but lying in the registration process can carry a five year sentence. That’s what Paul Manafort has been charged with. Butina has been charged with violating 18 USC 951, which basically criminalizes people who don’t register with DOJ (as, for example, diplomats would) when they spy for a foreign power; it carries a ten year sentence.

The problems with FARA … and distinguishing it from spying

As a DOJ Inspector General Audit completed in September 2016 laid out, people stopped complying with FARA in the 1990s, as any commercial lobbyists could register under the Lobbyist Disclosure Act more easily and FARA wasn’t rigorously enforced. The IG Report cited a bunch of reasons why FARA is not better enforced, such as that they aren’t staffed to be effective, nor do they have the investigative authorities DOJ thinks they need to figure out who’s not complying.

During our audit the FARA Unit was comprised of one Unit Chief, who is also an attorney; two staff attorneys; one Supervisory Program Manager; one Intelligence Research Specialist; one Program Specialist; and two Case Management Specialists.5 NSD staff emphasized that this is a limited staff, which is responsible for a considerable range of activities. The unit is responsible for processing and monitoring new and existing FARA registrations on an ongoing basis. This includes receiving, reviewing and processing documentation and payments, and addressing late or inaccurate submissions. The unit also performs periodic formal inspections to assess the adequacy of registrant reporting and disclosure, and conducts open source searches to identify individuals that may be obligated to register.

One of these two staff attorneys joined the FARA Unit during our audit. At the conclusion of our audit we were informed that the FARA Unit was back to one staff attorney, however the unit planned to hire a replacement.

[snip]

NSD officials stated that a major difficulty is a lack of authority to compel the production of information from persons who may be agents. As a result, NSD is currently pursuing civil investigative demand (CID) authority from Congress in order to enhance its ability to assess the need for potential agents to register.

Ultimately, however, DOJ almost never uses the teeth in the provision — prosecution — to ensure compliance.

Between 1966 and 2015 the Department only brought seven criminal FARA cases – one resulted in a conviction at trial for conspiracy to violate FARA and other statutes, two pleaded guilty to violating FARA, two others pleaded guilty to non-FARA charges, and the remaining two cases were dismissed. We were also told by NSD that the Department has not sought civil injunctive relief under FARA since 1991.

The IG Report cites two reasons why there aren’t more prosecutions. First, as the National Security Division explained, because it is so hard to get evidence of 1) willfulness, 2) that the agent is working under the “direction and control” of a foreign principal and 3) that the influence-peddling isn’t for some other (exempted) reason.

FARA contains a criminal penalty provision, and NSD approves criminal prosecution as an enforcement mechanism if there is sufficient admissible evidence of a willful violation of FARA, and the standards applicable to all federal criminal prosecutions set forth in the U.S. Attorney’s Manual are otherwise satisfied. The high burden of proving willfulness, difficulties in proving “direction and control” by a foreign principal, and exemptions available under the statute make criminal prosecution for FARA violations challenging. These challenges are compounded by the government’s current inability to compel the production of records from potential and current registrants, a situation NSD is working to remedy by proposing legislation for consideration by the Department of Justice (Department). Despite these challenges, the Department has brought four F ARA criminal cases since 2007, all of which resulted in convictions (one conviction at trial for conspiracy to violate F ARA and other statutes; two guilty pleas for violating FARA; and one guilty plea to related non-FARA charges).

The other reason why there aren’t more FARA prosecutions, per the IG Report, is because FBI agents confuse FARA (what Manafort is charged with) with 18 USC 951 (what Butin is charged with). Indeed, Agents mix the codes for the two crimes up in their filing system.

[W]hen we discussed FARA with FBI personnel, we found that they considered a “FARA case” to be a case investigated pursuant to either the FARA, 22 U.S.C. § 611, et seq., or 18 U.S.C. § 951 (Section 951), which is the federal statute that provides criminal penalties for certain agents of foreign governments who act in the United States without first notifying the Attorney General.12 Unlike Section 951, FARA requires agents of foreign principals engaged in legal political or quasi-political activities such as lobbying, government and public relations, tourism promotion, and foreign economic development activities in the United States to register and make detailed disclosures of their activities in the United States conducted on behalf of their foreign principals.13

By contrast, Section 951 was described to us by the NSD as “espionage lite” because a Section 951 case generally involves espionage-like or clandestine behavior or an otherwise provable connection to an intelligence service, or information gathering or procurement-type activity on behalf of a foreign government. Although FARA registration can serve as the required notification to the Attorney General under Section 951, NSD officials told us FARA and Section 951 involve different sets of elements and different types of issues. According to NSD officials, only 22 U.S.C. 611 et seq. constitutes a FARA case. Nevertheless, NSD officials acknowledged the differing views on what constitutes a FARA charge and are currently engaged in an ongoing effort to better educate field investigators and prosecutors on the difference.

12 According to NSD, notification under Section 951 may be made by registration under FARA in circumstances where the activity requiring notice is disclosed on the FARA registration form.

13 Political activities are defined by the statute as “any activity that the person engaging in believes will, or that the person intends to, in any way influence any agency or official of the Government of the United States or any section of the public within the United States with reference to formulating, adopting, or changing the domestic or foreign policies of the United States or with reference to the political or public interests, policies, or relations of a government of a foreign country or a foreign political party.”

Here’s how NSD described the difference.

Although OIG’s report reflects some criticism of aspects of NSD’s review of F ARA cases, NSD notes at the outset, as OlG acknowledged in the Report, that personnel interviewed in preparation of the Report frequently confused FARA (22 U.S.c. § 611 el seq) with 18 U.S.C. § 951 (“Section 951 “), a criminal statute entitled “Agents of foreign governments.” Although the two statutes have similar terms, they address different types of conduct. The typical conduct to which Section 951 applies consists of espionage-like behavior, information gathering, and procurement of technology, on behalf of foreign governments or officials. FARA, on the other hand, is designed to provide transparency regarding efforts by foreign principals (a term defined more broadly than foreign governments or officials) to influence the U.S. government or public through public speech, political activities, and lobbying. Accordingly, Section 95 1 is codified in Title 18 of the U.S. Code (designated for “Crimes and Criminal Procedure”), while FARA is codified in Title 22 (designated for “Foreign Relations”). Section 951 is aimed exclusively at criminally punishing individuals who violate its terms, and lacks a formal administrative registration regime. FARA in contrast, is predominantly a disclosure statute, under which there is an administrative registration regime, and while the Act authorizes criminal penalties for willful violations, the primary means of achieving FARA’s main purpose of transparency is through voluntary disclosure in compliance with the Act. The mistaken conflation of the two statutes can lead to undue weight being given to criminal prosecution as the measure of F ARA enforcement and insufficient recognition of the significance of administrative enforcement efforts relating to the FARA registration regime. It is therefore essential to understand the distinctions between FARA and Section 951 for purposes of this audit, the scope of which is expressly limited to the enforcement and administration of FARA.

Mueller’s two FARA pleas

Mueller actually already shifted the balance on FARA enforcement since that 2016 IG Report. Among the false statements Flynn pled guilty to is filing a false FARA filing.

On March 7, 2017, FLYNN filed multiple documents with the Department of Justice pursuant to the Foreign Agents Registration Act (“FARA”) pertaining to a project performed by him and his company, the Flynn Intel Group, Inc. (“FIG”), for the principal benefit of the Republic of Turkey (“Turkey project”). In the FARA filings, FLYNN made materially false statements and omissions, including by falsely stating that (a) FIG did not know whether or the extent to which the Republic of Turkey was involved in the Turkey project, (b) the Turkey project was focused on improving U.S. business organizations’ confidence regarding doing business in Turkey, and (c) an op-ed by FLYNN published in The Hill on November 8, 2016, was written at his own initiative; and by omitting that officials from the Republic of Turkey provided supervision and direction over the Turkey project.

And one of two conspiracy schemes (what I call ConFraudUS) to which Gates pled guilty is violating FARA.

GATES understood that it was illegal to engage in certain activities in the United States as an agent of a foreign pricipal without registering with the United States Government. Specifically, a person who engages in lobbying or public relations work in the United States (hereafter collectively referred to as lobbying) for a foreign principal such as the Government of Ukraine or the Party of Regions is required to register. Manafort, together with GATES’ assistance, engaged in a scheme to avoid this registration requirement for DMI, Manafort, and others.

These efforts — and Manafort’s prosecution — have already led to a significant increase in how many people are registering as foreign influence peddlers.

You can lose your profits if you don’t register

Particularly because Manafort’s case is so high profile, Mueller’s bid to prosecute him for FARA violations comes with high stakes and potentially high payoff — though DC District interpretations of the law. That said, the government has actually backstopped itself by charging Manafort’s sleazy influence peddling under multiple different crimes; the indictment actually uses seven different counts to hold Manafort accountable for hiding that he was an agent of a Russian-backed Ukrainian party, the Party of Regions (and its successor).

  1. ConFraudUs: Claiming Manafort prevented DOJ and Treasury from tracking his foreign influence peddling
  2. Conspiracy to Launder Money: Claiming Manafort and Gates laundered the proceeds of their Ukrainian influence-peddling
  3. FARA Violation: Claiming Manafort hid both his own lobbying for the Party of Regions and that he paid other influence peddlers to engage in
  4. Submitting a False FARA Statement: Claiming Manafort submitted a claim falsely claiming he didn’t need to register as a foreign agent
  5. False statements: Claiming he lied in his FARA filings
  6. Obstruction of justice: Claiming he tampered with witnesses associated with the Hapsburg group in an attempt to get them to lie about his failure to register as a foreign agent
  7. Conspiracy to obstruct justice: Claiming he conspired with former GRU officer Konstantin Kilimnik to tamper with witnesses

Manafort already tried and failed to narrow the application of FARA in two ways: first, by objecting to tying money laundering to FARA (and thereby tying a forfeiture to it). Second, Manafort tried to get either the false FARA statement (count 4) or the false statements (count 5) thrown as as multiplicitous. Amy Berman Jackson ruled against him on both attempts (forfeiture, multiplicitous), though the latter order basically just punted the issue until after trial.

The former is more interesting, in any case, because in her ruling ABJ took Manafort’s bid to distinguish FARA from 18 USC 951 and instead described how similar they are.

Section 951 of Title 18 states that “[w]hoever, other than a diplomatic or consular officer or attaché, acts in the United States as an agent of a foreign government without prior notification to the Attorney General” shall be fined or imprisoned for up to ten years, or both. 18 U.S.C. § 951(a). According to defendant, this statute criminalizes acting as a foreign agent, whereas FARA is merely a “regulatory scheme for foreign agent registration” that criminalizes only the willful failure to register. Def.’s Mot. at 5, quoting United States v. McGoff, 831 F.2d 1071, 1075 (D.C. Cir. 1987).

But the reference to section 951 does not support defendant’s position, since defendant acknowledges that section 951 plainly governs acting as an agent of a foreign government, and the language of the two provisions is quite similar. See Def.’s Mot. at 4–5; compare 18 U.S.C. § 951(a) (“Whoever . . . acts in the United States as an agent of a foreign government without prior notification to the Attorney General . . . shall be fined under this title or imprisoned . . . .”) with 22 U.S.C. § 612(a) (“No person shall act as an agent of a foreign principal unless he has filed with the Attorney General a true and complete registration statement . . . .”) and id. § 618(a) (imposing criminal penalties on any person who “willfully violates any provision of this subchapter or any regulation thereunder” or “willfully makes a false statement of a material fact or willfully omits any material fact” in a FARA statement). These laws are not just about paperwork; their object is to ensure that no person acts to advance the interests of a foreign government or principal within the United States unless the public has been properly notified of his or her allegiance. So both statutes expressly prohibit “acting” as a representative of a foreign entity without submitting the required notification to the Attorney General. For these reasons, the alleged international banking transactions could “promote,” and Manafort could realize “proceeds” from, a FARA violation.3

3 Defendant argues that section 951 does not bear on the issue presented here since it requires an “additional element” that FARA does not, and applies to “activities . . . under the control of a foreign government.” Def.’s Mot. at 4–5. But FARA also applies to agents of foreign governments. 22 U.S.C. § 611(b) (defining “foreign principal” to include “the government of a foreign country”). So the difference between the two provisions is that section 951 covers a narrower subset of foreign agents.

In addition to treating sleazy influence peddlers as akin to spies (albeit less serious ones) if they hide that influence peddling, ABJ’s order means that in DC, where all the sleazy influence peddlers work, a sleazy influence peddler can forfeit the money he makes off sleazy influence peddling if he doesn’t properly register to peddle influence.

Ouch.

The crime-fraud exception in FARA registration

Which brings us to one of the reasons why FARA is so hard to prosecute: the difficulty of proving willfulness. One way Mueller is getting around that is to rely on the testimony of the lawyer Manafort used to file his delayed FARA registration.

After Manafort’s influence-peddling for Ukraine became the focus of attention in 2016, the chief of the FARA unit wrote to Manafort and asked him if maybe he should have registered. Manafort hired Melissa Laurenza. She submitted three filings on Manafort’s behalf, on November 23, 2016, February 10, 2017, and June 27, 2017, all based on the representations made by Gates and Manafort (including that they had no record of communications with Tony Podesta and Vin Webber’s firms, but that they only retained email for 30 days). In the earlier filings, Laurenza claimed Manafort’s Ukrainian consulting didn’t include any outreach to US government officials or media outlets.

Last August, Mueller asked for and obtained Chief Judge Beryl Howell’s permission to compel Laurenza to testify under the crime-fraud exception to attorney-client privilege. Based off five lies for which Mueller provided evidence, Howell authorized Mueller’s team to ask seven questions of Laurenza about preparation of the FARA filings.

Then, earlier this month, a Taint Team lawyer asked for permission to have the taint Team turn over the emails that Laurenza used to write up her FARA filings. Manafort responded by claiming, in part, that he had never even seen the entirety of the litigation before Judge Howell. The Taint Team lawyer then produced the evidence that she had provided that information to Manafort in April.

If this thing goes to trial, we’re going to see a whole slew of evidence that Manafort was working directly for Viktor Yanukovych’s party, even while he hid that fact as he had Tony Podesta and Vin Weber lobby on Yanukovych’s behalf. That will get Mueller to the “direction and control” prong of the statute. By showing the efforts to which Gates and Manafort made to lie to their lawyer when they were finally forced to submit a FARA filing, Mueller will show that Gates and Manafort twice made sure that the FARA filing lied about what they had really been doing for Yanukovych.

One question I’m left with, particularly when we compare Manafort’s actions with Butina’s (which I’ll do in my next post), is why Mueller didn’t just charge Manafort with spying for Yanukovych, rather than just lobbying for him?

Update: Sam Patten, who also worked with Konstantin Kilimnik pitching Yanukovych’s party, is pleading guilty to FARA violations this morning.

As I disclosed 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 Mueller Investigation: What Happens on September 7?

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I hesitate to write this post, partly because I think it’s a good idea to dismiss every single thing that Rudy Giuliani says, and partly because we’ve all learned that it is sheer folly to pretend anyone can anticipate what Mueller will do, much less when.

Nevertheless, I wanted to address questions about what might happen in the next two weeks, as we approach the 60-day mark before midterm elections.

Rudy G is wrong about everything

The aforementioned Rudy G, who has been saying that Mueller has to shut down his entire investigation (or even finish up and go home) on September 1 on account of DOJ’s policy against overt investigative action close to an election.

As I said, the policy only prohibits overt acts, and only 60 days before the election. Mueller might argue that it’s entirely irrelevant, given that none of his known targets (save, perhaps, Dana Rohrabacher) are on the ballot. But enough credible journalists have suggested that DOJ is taking this deadline seriously with respect to Trump’s associates (including Michael Cohen in SDNY, where DOJ actually leaks), that it’s probably correct he’ll avoid overt acts in the 60 days before the November 6 election.

But that timeline starts on September 7, not September 1.

Paul Manafort’s stall

One thing we know will dominate the press in that pre-election period is Manafort’s DC trial, scheduled to start on September 17.

Unless he flips.

While I still don’t think he will flip, he is stalling in both his trials. In EDVA, he asked for and got a 30-day deadline to move for an acquittal or mistrial. He may have done so to provide extra time to consider the complaints raised by one juror that others were deliberating before they should have, which Manafort had asked for a mistrial over. If that’s right, juror Paula Duncan’s comments, describing the one holdout and explaining that even she, a Trump supporter, found the case a slam dunk, may persuade Manafort that challenging this trial won’t bring about any other result and may mean he gets convicted on the remaining 10 counts.

In any case, however, by getting 30 days to decide, Manafort moved the deadline from (by my math) September 3 to September 21, when he’s scheduled to be deep into the DC case (and therefore too busy to submit such a motion). It did, however, move the decision date past that September 7 date.

Speaking of the DC case, after getting an extension on the pre-trial statement in that case, Manafort basically punted on many of the substantive issues, effectively saying he’ll provide the required input later.

He may not be flipping, but he’s not prepared to start this trial.

Is it Roger Stone’s time in the barrel?

The big question, for me, is whether Mueller has finished his six month effort to put together a Roger Stone indictment.

Tantalizingly, back on August 10, Mueller scheduled Randy Credico to explain to the grand jury how Stone threatened him about his testimony. That appearance is for September 7. Given how far out Mueller scheduled this, I wondered at the time whether Credico was being slated to put the finishing touches on a Stone indictment.

What might prevent Mueller from finalizing Stone’s indictment, however, is Stone associate Andrew Miller, from whom Mueller has been trying to get testimony since May 9. Miller is challenging his grand jury subpoena; he’s due to submit his opening brief in his appeal on September 7. That might mean that Mueller has to wait. But two filings (District, Circuit), the docket in his subpoena challenge, and this CNN report may suggest they can move forward without first getting Miller’s testimony.

Both the Circuit document and CNN provide more details about a May 9 interview with two FBI Agents, with no attorney present (no offense to Miller, but what the fuck kind of self-described libertarian, much less one in Roger Stone’s immediate orbit, agrees to an FBI interview without a lawyer present)?

Mr. Miller was first interviewed by two agents of the Federal Bureau of Investigation who visited him unannounced on or about May 9, 2018, in Saint Louis, MO, where he resides. He was cooperative, answering all their questions for approximately two hours, and at the conclusion of the interview, was handed a subpoena to produce documents and testify as a witness before the grand jury.

CNN describes that’s what poses a perjury concern for Miller with regards to his testimony before the grand jury because of that original interview.

Miller’s case is complicated by the fact that he initially cooperated with the special counsel’s investigation. When FBI agents first approached him in May, he spoke with them at his home in St. Louis for two hours without an attorney.

[snip]

Dearn said in an interview that she was just being “carefully paranoid” and protecting her client from accidentally committing perjury if he testifies and contradicts something he told investigators back in May without a lawyer present.

As the District filing seems to suggest, Miller got not one but two subpoenas (???), just one of which called for document production:

Mr. Miller was served with two subpoenas dated June 5, 2018, both requiring his appearance before the Grand Jury on June 8, but only one of which required that he search and bring with him the documents described in the Attachment to one of the subpoenas. See Exhibits 1 and 2. After a filing a motion to quash on grounds not raised herein, this Court issued a Minute Order on June 18 requiring Mr. Miller’s appearance before the Grand Jury on June 29 and to produce the documents requested as limited by agreement of the parties by June 25.

Miller turned over 100MB of documents on June 25, but shortly thereafter, Mueller prosecutor Aaron Zelinsky asked for more.

Mr. Miller has since complied with that part of the order producing voluminous documents in a file that is 100MB in size to government counsel on Monday, June 25. In her cover email to government counsel, Aaron Zelinsky, Miller’s counsel stated in pertinent part: “Mr. Miller does not waive and hereby preserves all rights he has to object to the subpoena requiring his appearance before the Grand Jury this Friday…and from any continuing duty or obligation to supply additional documents subject to the subpoena.” See Exhibit 6. Nevertheless, Mr. Zelinsky recently informed counsel that he is not satisfied with this production and is unreasonably requesting additional documents from Mr. Miller.

CNN reported that those documents pertained to WikiLeaks and Guccifer 2.0.

After a protracted back and forth between Dearn and Mueller’s team, Miller handed over a tranche of documents. In turn, the government had agreed to limit its search to certain terms such as Stone, WikiLeaks, Julian Assange, Guccifer 2.0, DCLeaks and the Democratic National Committee, according to court filings and interview with attorneys.

So at the very least, Mueller has 100MB of documents that relate to Wikileaks and Guccifer 2.0 (which raises real questions about how Miller can say he knows nothing about the topic), and 2 hours of testimony that Miller may not want to tell the grand jury now that he has lawyers who might help him avoid doing so.

Meanwhile, there are some filings from the end of his District Court docket.

The Circuit document mostly explains what filings 33, 34, 35, and 37 are (though doesn’t explain why Mueller refused to stipulate that Miller be held in contempt): they’re the process by which he was held in contempt and therefore legally positioned to appeal.

6. Because Mr. Miller desired to appeal the order denying his motion, ensuing discussions with Special Counsel to stipulate that Mr. Miller be held in contempt for not appearing on the upcoming appearance before the grand jury on August 10, 2018, and to stay the contempt pending appeal did not succeed.

7. Consequently, two days before his appearance, on the evening of August 8, 2018, counsel emailed government counsel and Judge Howell’s clerk (and on the following morning of August 9, hand-filed with the clerk’s office), a Motion By Witness Andrew Miller To Be Held In Civil Contempt For Refusing To Testify Before The Grand Jury And To Stay Such Order To Permit Him To Appeal It To The U.S. Court Of Appeals For The District Of Columbia Circuit and citing authorities for granting a stay of contempt. ECF No. 33. The government served and a response on the evening of August 9 ( ECF. No. 35) and Mr. Miller served a reply early morning on August 10. ECF No. 37.

8. On August 10, undersigned counsel for Mr. Miller met government counsel at 9:00 a.m. as previously agreed to at the entrance to the grand jury offices, and was advised by government counsel that a motion to show cause was filed shortly before 9:00 a.m. ECF No. 34.

9. Approximately two hours later, the court held the show cause hearing, with the Mr. Miller and local counsel appearing telephonically from Saint Louis, MO.

10. The court granted Mr. Miller’s and the government’s request that he be held in contempt and stayed the order if the notice of appeal were filed by 9:00 a.m. August 14, 2018. ECF No. 36.

That doesn’t explain what Document 38 is, to which Miller didn’t respond, and in response to which Beryl Howell issued an order.

CNN’s description of Miller’s attorney’s concern seems to split his testimony into two topics: Guccifer and Wikileaks, and Stone’s PACs. Miller’s only worried about legal jeopardy in the latter of those two. (For some details on what the legal exposure might pertain to, see this post.)

[Alicia] Dearn was adamant that Miller not be forced to testify to the grand jury about one topic in specific: Stone. She asked that her client be granted immunity, “otherwise he’s going to have to take the Fifth Amendment,” she said in a court hearing in June.

Aaron Zelinsky, one of Mueller’s prosecutors, noted Miller’s lawyer was making two seemingly contradictory arguments: “On the one hand, that the witness knows nothing, has nothing to hide, and has participated in no illegal activity. On the other hand, that there is a Fifth Amendment concern there.”

In the hearing, Dearn said she was concerned Miller would be asked about his finances and transactions related to political action committees he worked on with Stone.

Miller “had absolutely no communication with anybody from Russia or with Guccifer or WikiLeaks,” Dearn said in an interview.

By process of elimination, the only thing she believes her client could get caught up on are questions about his financial entanglements with Stone and his super PAC.

The Circuit document concedes that Miller may be the subject — but not target — of this grand jury investigation.

12. Lest there be any misunderstanding, Mr. Miller was not a “target of grand jury subpoenas” (Concord Mot. at 1), but rather a fact witness or at most a subject of the grand jury; nor was he a “recalcitrant witness.” Id. at 13. As the foregoing background demonstrates, Mr. Miller has been a cooperative witness in this proceeding.

It would be really weird if Miller really did get two subpoenas, and that’s not consistent with the Circuit document. So it may be there were two topics or crimes described in the subpoena: conspiring with Russia, and running a corrupt PAC. And if Miller’s only personally legally exposed in the latter of those, then it’s possible Mueller would treat these differently.

So it’s possible Mueller got what they need to move forward on the main conspiracy case against Stone, while it has to wait on Miller’s own involvement in Stone’s corrupt PACs until after the DC Circuit reviews things.

Other September deadlines

The September 7 timing is interesting for two other reasons. First, that’s also the day that George Papadopoulos — whose plea deal covers his lies and obstuction but not any conspiracy case — is due to be sentenced.

Just 10 days later Mike Flynn (whose plea deal was also limited to his lies) has a status report due, just a 24-day extension off his previous one. That timing suggests he’s about done with his cooperation. Perhaps that shortened time frame is only due to his team’s push to get him back earning money to pay for his lawyers again. Perhaps there’s some other explanation.

Timeline

August 24: Revised deadline for Manafort pre-trial statement — Manafort punted on many issues.

August 28: Hearing in DC Manafort case.

September 3: Current deadline for motions in EDVA Manafort trial

September 4: Brett Kavanaugh confirmation hearings scheduled to begin (projected to last 3-4 days)

September 7: Randy Credico scheduled to testify before grand jury; George Papadopoulos scheduled for sentencing; Andrew Miller brief due before DC Circuit; 60 days before November 6 mid-terms

September 17: DC Manafort trial starts, status report due in Mike Flynn case

September 21: Requested deadline for motions in EDVA Manafort trial

September 28: Government brief due in DC Circuit appeal of Andrew Miller subpoena

October 9: Miller reply due in DC Circuit

November 6: Mid-term election

November 10: Status report due in Rick Gates case

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

On the Apparent Complexities of Charging Roger Stone

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As I disclosed last month, 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. 

Last night, Sam Nunberg reportedly told Ari Melber he thought Roger Stone would be indicted on “broad charges of conspiring against America … backed up by some financial charges.” That has led to some Tweet lawyering suggesting that such ConFraudUS charges would arise naturally from Stone’s known interactions with WikiLeaks and Guccifer 2.0.

I’m certain things are not as simple as that. If they were, Mueller would not have spent much of the last five months focusing on testimony relating to Stone, including (this list doesn’t include at least one other person whose Stone-related testimony is not public):

  • February 22: Sam Nunberg questioned by Mueller’s team
  • March 9: Mueller obtains a warrant for 5 AT&T phones (and probably a similar number of Verizon ones)
  • March 9: Sam Nunberg appears before grand jury
  • March 27: Ted Malloch stopped at Logan airport, questioned about Stone and Wikileaks, devices seized, subpoenaed to appear before grand jury on April 13 (the grand jury appearance was rescheduled or canceled)
  • May 2: Michael Caputo interviewed by Mueller team; among the topics discussed was outreach by “Henry Greenberg” to deal dirt on Hillary Clinton to Stone
  • May 10: Mueller subpoenas Andrew Miller for documents and testimony, Miller agrees to meet voluntarily with Mueller’s team
  • May 11: Alicia Dearn contacts Mueller and says Miller is no longer willing to appear
  • May 14: Mueller’s team contacts Dearn to inquire about her representation of Miller; she does not return the call
  • May 18: John Kakanis reportedly subpoenaed after having been interviewed by Mueller’s team
  • May 18: Miller blows off a May 18 appearance before the grand jury; Dearn’s employee says Dearn will contact Mueller’s team on May 21
  • May 21: Dearn blows off promised call to Mueller’s team
  • May 23: Mueller’s team emails Dearn a second set of subpoenas, to appear on June 1
  • May 25: Stone says 8 associates have been asked for testimony
  • May 25: Mueller’s team follows up on subpoenas; Dearn asks for more time to comply “given the volume of responsive documents;” Mueller agrees to adjourn document production to June 5 and appearance to Jun 8
  • May 31: Mueller contacts Dearn to confirm appearance; Dearn complains about “patently irrelevant” responsive materials; Mueller agrees to exclude those materials
  • June 1: Jason Sullivan appears before grand jury
  • June 5: Mueller emails new subpoenas reflecting the June 5 production date and June 8 appearance
  • June 6: Mueller emails Dearn to confirm appearance and arrange for travel
  • June 8: Miller blows off grand jury appearance
  • June 11, 8:50AM and 2:15PM: Mueller emails Dearn and asks for immediate contact, warning that Special Counsel would move towards contempt
  • June 12, 9:07AM and 2:15PM: Dearn twice says she’ll provide correspondence within an hour but does not
  • June 13: Mueller moves to compel
  • June 14: Miller filed opposition purporting to be a motion to quash
  • June 18: At hearing on motion to quash, court orders Miller to appear on June 28
  • June 28: Miller retains Paul Kamenar, paid by the National Legal and Policy Center, who challenges subpoenas as challenge to Appointments Clause, borrowing argument from Concord Management motion
  • June 29: At status hearing in Miller challenge, Kamenar adds another challenge, that Mueller was appointed by “Head of Department”
  • July 18: Hearing on Miller challenge, attended by 5 Mueller lawyers, with follow-up briefing
  • July 31: Chief Judge Beryl Howell rules that Miller must testify ASAP
  • August 1: Kristin Davis interviewed by Mueller team; investigators express an interest in having her appear before grand jury
  • August 3: Dabney Friedrich entertains ignoring DC Circuit and SCOTUS precedent to rule for Concord Management’s challenge of Mueller’s authority, with Kamenar watching; Concord lawyer Eric Dubelier suggests conspiracy in the timing of Howell’s ruling
  • August 10: Kristin Davis appearance before grand jury

While some of these witnesses were clearly asked about Wikileaks, others were reportedly asked about meetings involving Rick Gates, Stone’s finances, and even whether he fathered Davis’ two year old child. And while Stone’s buddies claim Mueller is generally investigating his finances, Mueller’s focus seems to be on the recipients of expenditures from Stone’s SuperPAC.

Clearly, whatever question Mueller is investigating (and whatever potential crimes he showed probable cause of, if he indeed seized the contents of Stone’s phone back in March) is more complex than just chatting up Assange or Guccifer 2.0. Indeed, even the discussions we know of show Stone involved in — or at least entertaining — more than that. That said, Mueller will need to prove that whatever Stone did involved the understanding that he was accepting things of value (or even, soliciting the active help) from foreigners or other illegal actions.

That’s one reason why the circumstances of Stone’s flip-flop in early August 2016, in which Stone went from admitting that the DNC hack was done by Russia to claiming it was not seemly in one day in which he was in Southern California is so important: because he established a contemporaneous claim he has relied on to excuse any coordination with Guccifer 2.0 and WikiLeaks. Given the import of Stone’s flip-flop, I find it interesting that so much of the funding for his SuperPAC came from Southern California, especially from John Powers Middleton. Did he meet with his donors when he orchestrated the flip-flop that makes it harder to argue his discussions and foreknowledge of Guccifer 2.0 and WikiLeaks events count as entering into a conspiracy to break one or several laws?

Whatever the circumstances of that flip-flop, from that point forward, Stone pushed several lines — notably the Seth Rich conspiracy — that would be key to Russian disinformation. A big chunk of his SuperPAC funds also spent on “Stop the Steal,” which may also tie to Russian disinformation to discredit the election.

One of the complexities Mueller may have spent months digging through may be whether and how to hold Stone accountable for willfully participation in disinformation supporting Russia’s larger efforts to swing the election to Donald Trump.

In March, when this focused pursuit started, Mueller wanted to know what the President knew about communication between Stone, his associates, Julian Assange, and Wikileaks. Since then, it appears the question has gotten more complex.

And along the way, a key Roger Stone aide has managed to stall three months on providing testimony.

Update: Fixed spelling of Miller’s attorney’s last name to Dearn.