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With Matt Gaetz, Donald Trump’s Myth Cannot Fail — It Can Only Be Failed

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Folks, I know this is bad timing, but in about 20 minutes, I’m going to temporarily shut down comments here, as we’re going to do some planned maintenance. Hopefully it won’t take too long.

I keep thinking back to this June 2023 exchange between Matt Gaetz and John Durham.

It came at the end of Durham’s testimony after delivering his report, in which Durham said a lot of inflammatory things, but ultimately concluded that the allegations of Russian interference should have been investigated, but should have been opened at a lower level of investigation.

After four years, Durham blamed Hillary Clinton for things Russians (like those suspected of filling the Christopher Steele dossier with disinformation) had done. But he hadn’t done the one thing Republicans needed him to do: assert that the Russian investigation was a hoax.

At the end of it, Jim Jordan adopted a tactic he has come to use in his hearings. He took a break for votes, giving staffers a half hour to prepare a rebuttal. And then three Republican members took turns, including Matt Gaetz for his second turn, unrebutted by any Democratic member.

He came prepared.

Gaetz cued up video from Robert Mueller’s July 2019 testimony, showing Jim Jordan grilling Mueller about Joseph Mifsud. Jordan asserted that Bill Barr and John Durham were trying to find out what Mifsud was doing. After Durham responded that they did try to pursue that angle, Gaetz asserted that Durham’s investigation was “an op.”

You had years to find out the answer to what Mr. Jordan said was the seminal question, and you don’t have it. It just begs the question whether or not you were really trying to find that out. Because it’s one thing to criticize the FBI for their FISA violations, to write a report. They’ve been criticized in plenty of reports. Some have referred to your work as just a repackaging and regurgitation of what the Inspector General already told us. So if you weren’t going to do what Mr. Jordan said you were going to do in that video, and give us the basis for all of it, what’s this all been about?

Now, in point of fact, who Mifsud really was was never the seminal question. Or rather, he only ever became a question via conspiracy theories Jordan and Mark Meadows laundered through a sham Congressional appearance from George Papadopoulos. Under their direction, the Coffee Boy provided no primary documentation with which staffers could hold him to account. Instead, Papadopoulos laundered conspiracy theories first posted in right wing propaganda outlets.

Q Okay. So, and Mifsud, he presented himself as what? Who did he tell you he was?

A So looking back in my memory of this person, this is a mid-50’s person, describes himself as a former diplomat who is connected to the world, essentially. I remember he was even telling me that, you know, the Vietnamese prime minister is a good friend of mine. I mean, you have to understand this is the type of personality he was portraying himself as.

And, you know, I guess I took the bait because, you know, usually somebody who — at least in Washington, when somebody portrays themselves in a specific way and has credentials to back it, you believe them. But that’s how he portrayed himself. And then I can’t remember exactly the next thing that happened until he decided to introduce me to Putin’s fake niece in London, which we later found out is some sort of student. But I could get into those details of how that all started.

Q And what’s your — just to kind of jump way ahead, what’s your current understanding of who Mifsud is?

A My current understanding?

Q Yeah. A You know, I don’t want to espouse conspiracy theories because, you know, it’s horrifying to really think that they might be true, but just yesterday, there was a report in the Daily Caller from his own lawyer that he was working with the FBI when he approached me. And when he was working me, I guess — I don’t know if that’s a fact, and I’m not saying it’s a fact — I’m just relaying what the Daily Caller reported yesterday, with Chuck Ross, and it stated in a categorical fashion that Stephan Roh, who is Joseph Mifsud’s, I believe his President’s counsel, or PR person, said that Mifsud was never a Russian agent.

In fact, he’s a tremendous friend of western intelligence, which makes sense considering I met him at a western spying school in Rome. And all his interactions — this is just me trying to repeat the report, these are not my words — and when he met with me, he was working as some sort of asset of the FBI. I don’t know if that’s true or not. I’m just reporting what my current understanding is of this individual based on reports from journalists.

[snip]

Q And then at what point did you learn that, you know, he’s not who he said he was?

A Like I said, I don’t have the concrete proof of who this person is. I’m just going with reports. And all I can say is that I believe the day I was, my name was publicly released and Papadopoulos became this person that everyone now knows, Mifsud gave an interview to an Italian newspaper. And in this newspaper, he basically said, I’m not a Russian agent. I’m a Clinton supporter. I’m a Clinton Foundation donor, and that — something along those lines. I mean, don’t quote me exactly, you could look up the article yourself. It is in La Republica. And then all of a sudden, after that, he disappears off the face of the planet, which I always found as odd.

[snip]

I guess the overwhelming evidence, from what I’ve read, just in reports, nothing classified, of course, because I’m not privy to anything like that, and considering his own lawyer is saying it, Stephan Roh, that Mifsud is a western intelligence source. And, I guess, according to reports yesterday, he was working with the FBI. [my emphasis]

And that’s what led Barr and Durham to jump on a plane together and chase Papadopoulos’ conspiracy theories — without ever interviewing Papadopoulos directly. Mifsud’s own lawyer — the one who couldn’t help Durham figure out how to subpoena him — who started the conspiracy theory that Mifsud worked for Western, not Russian, spies.

Durham and Barr did more than just chase Papadopoulos’ conspiracy theories together. Durham fabricated a key part of the theory of his case. He ignored key events — most notably, Trump’s invitation for Russia to hack his opponent — that made all the actions of Hillary’s people make sense. He relied on a Twitter account as the foundation of his indictment against Igor Danchenko, then whined when such communications were deemed inadmissible without a witness to introduce them.

Yet ultimately, the rules of criminal procedure and some very very good defense attorneys (no doubt paid with life savings) managed to thwart Durham’s efforts to spin from his own fevered imaginations a conspiracy implicating Hillary Clinton.

For that, Matt Gaetz accused Durham of “inoculating” the FBI.

Your report seems to be less an indictment of the FBI and more of an inoculation — lower case I, of course. And like many inoculations, it may have worse consequences down the road. It’s just hard to pretend as though this was a sincere effort. When you don’t get to the fundamental thing that started the whole deal.

Because reality ultimately debunked Durham’s conspiracy theories, Gaetz deemed him to be part of the Deep State.

I get that Matt Gaetz’ nomination is one of the most likely to be rejected by the Senate. I get that there’s still a chance this guy — the guy who proclaims even a fellow conspiracist part of the Deep State if he permits himself to discover that reality doesn’t back his fever dreams — won’t be Attorney General.

But this is what it means that Trump wants to take a hammer to DOJ and FBI: not just that they’ll avoid any investigations implicating Trump or his allies, but they will find a way to meld reality to their own myth.

As it was, Bill Barr’s DOJ added post-it notes to evidence in ways that happened to feed Trump’s myth of grievance. They claimed travel records of the informant with something akin to a Let’s go Brandon cap matched his claims about Joe Biden accepting a bribe when, purportedly, the opposite is true.

Bill Barr’s DOJ already made shit up to feed Trump’s myth.

Since then, a Trump judge admitted a laptop full of evidence at a criminal trial with little more validation than an access to an iCloud account to which multiple outsiders had access, and an email sent to a publicly available email address.

But whoever Trump installs atop DOJ will take all this one step further. No longer will it be a select crony US Attorneys who forget to remove post-it notes with erroneous but convenient dates or claim travel records say the opposite of what they actually say. It will be the litmus test from the top: Donald Trump’s myths cannot fail, they can only be failed.

Update: Gaetz has withdrawn from consideration.

Donald J. Trump wearing an apron while dispensing french fries at a McDonald's fast food restaurant in Pennsylvania as part of a campaign stunt on Sunday, October 20, 2024. Photo by Doug Mills/AP.

Batting Down Election-Day Conspiracy Theories

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Donald J. Trump wearing an apron while dispensing french fries at a McDonald's fast food restaurant in Pennsylvania as part of a campaign stunt on Sunday, October 20, 2024. Photo by Doug Mills/AP.

There is no truth to the rumor that Donald J. Trump wearing an apron while dispensing french fries at a McDonald’s fast food restaurant in Pennsylvania was part of his preparation for a new career move should he lose tonight [Sunday, October 20, 2024. Photo by Doug Mills/AP.]

As the voters stream to the polls today, as workers at precincts around the country welcome voters to cast their ballots, as state and county election officials prepare for the counting that will take place, and as lawyers prepare for the inevitable fights in the days to come, it is incumbent on us at EW to shoot down rumors of conspiracies flying around on this momentous day.

So let’s get right to it.

There is no truth to the rumor that the staff at Mar-a-Lago has put plastic sheeting over the walls, to make cleaning up any thrown pasta easier. If anyone tells you that the custodial staff is worried about Trump throwing his dinner around once results start coming in, do not believe them.

There is no truth to the rumor that JD Vance has prepared a concession speech filled with remorse for the things he said about Kamala Harris during the campaign, and there is absolutely no truth whatsoever that Peter Thiel is preparing to have JD Vance disappeared for his failure to win.

There is no truth to the rumor that Lara Trump is planning to move to Saudi Arabia should Harris/Walz win.

There is no truth to the rumor that Fox News has a contingency plan to have an intern shut down the power to the FOX studios and take them off the air on election night if the results come in putting Harris over the top.

There is no truth to the rumor that Ivanka and Jared are giving the Saudi’s back the money they were given to “invest” back in 2020.

There is no truth to the rumor that Elon Musk is shorting DJT stock.

There is no truth to the rumor that Mike Pence has a bottle of champagne on ice for he and Mother to share this evening, should Trump/Vance lose.

There is no truth to the rumor that Alito and Thomas are so despondent at the mere thought of Trump losing that their doctors are worried about them succumbing to heart attacks in the next 72 hours.

There is no truth to the rumor that Bill Barr is preparing a memo for Kamala Harris, laying out the rationale for her naming him as her new AG should Trump lose.

There is no truth to the rumor that Liz Cheney has practicing her sincerity in anticipation of making a call later this evening to Donald Trump, offering her solemn condolences at Trump’s loss, and absolutely no truth whatsoever that her practice sessions are not going well because she can’t get through two sentences without laughing.

There is no truth to the rumor that Gavin Newsom is planning a call to Donald Trump Junior and Kimberly Guilfoyle, offering condolences on the occasion of the loss of Trump/Vance.

There is no truth to the rumor that Ted Cruz already has purchased a new home in Cancun, and absolutely no truth whatsoever that in a gesture of bipartisanship, Colin Allred has already generously agreed to bring pizza and empty boxes to help him pack.

There is no truth to the rumor that Mitt Romney has laid in numerous kegs of beer for his watch party tonight at the Romney family home, and absolutely no truth whatsoever that Mitt’s sister niece Ronna McDaniel is planning to resume using “Romney” in her name again.

There is no truth to the rumor that Trump’s staffers are secretly preparing to call in sick this evening, rather than attend any watch parties or “victory” rallies, so that they can prepare to enter witness protection programs.

THERE IS NO TRUTH TO ANY OF THESE THINGS.

There is also a rumor that the members of Putin’s election interference unit are reeling in terror at the mere thought that Harris/Walz may win, resulting in an all-expenses paid one way trip to Ukraine for the entire group. This rumor we have been unable to debunk or verify.

If you have heard other rumors that need to be shut down, please add them in the comments.

On the Legacy of Bill Barr’s Luzerne County Intervention

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Somewhere, I have a half-finished post about the way that Bill Barr refused to cooperate with three different Inspector General Reports reviewing his actions — his actions during May and June 2020 protests in DC, his intervention in the Roger Stone sentencing, and his decision to seek out a voter fraud cause he could publicize. (There’s at least one more investigation, probably the one into subpoenas targeting journalists and Congress, that is ongoing.)

I hope to return to that if we still have a democracy next week.

But I want to review the third of these, because it hangs over DOJ’s ongoing investigation of a number of suspect election crimes, including the arson targeting ballot drop boxes in Oregon and Washington earlier this week.

As you may recall, someone — who turned out to be a mentally disabled man — threw away nine mail-in ballots in Luzerne County, PA in September 2020. The US Attorney for Middle District of Pennsylvania in Scranton, David Freed, big-footed into the investigation, in part (the IG Report discovered) because Bill Barr was looking for some case to talk about. Barr told Trump about the case and Trump made public comment.

…These ballots are a horror show. They found six ballots in an office yesterday in a garbage can. They were Trump ballots—eight ballots in an office yesterday in—but in a certain state and they were—they had Trump written on it, and they were thrown in a garbage can. This is what’s going to happen. This is what’s going to happen, and we’re investigating that. It’s a terrible thing that’s going on with these ballots. Who’s sending them, where are they sending them, where are they going, what areas are they going to, what areas are they not going to?… When they get there, who’s going to take care of them? So, when we find eight ballots, that’s emblematic of thousands of locations perhaps.

After which, Barr and Freed decided to release a public comment about the investigation, including that all nine of the discarded ballots had been cast for Trump (that turned out to be inaccurate; Freed issued a corrected statement days later). By the time Freed made that statement, it was pretty clear they weren’t going to charge the man involved; nevertheless, it wasn’t until the following January before the US Attorney’s Office revealed there would be no charges. Nevertheless, Freed also sent a letter to the county providing still more details from the investigation.

Barr refused to be interviewed for the Inspector General investigation, though his attorney kept providing new statements that didn’t answer all the questions about his behavior (one of my favorite Barr comments is that of course he didn’t advertise this case for political reasons because that would be inconsistent with his public statement on December 1 that there had been no decisive voter fraud). Barr spun the entire thing as an effort to reassure people.

Barr told the OIG in his letter to the Inspector General that he “favored and authorized putting out information along the lines of [MDPA’s] September 24 statement,” and Freed told the OIG that Barr specifically approved inclusion of investigative details in the statement, including the fact that “all nine ballots were cast for presidential candidate Donald Trump.” Barr stated in his letter that he favored including “the basic facts that prompted the investigation” in the MDPA statement as a way to quell public concerns about election integrity. Specifically, Barr stated: “Due to the involvement of local officials and county witnesses, I thought that further revelations of information about the incident were likely, potentially could come at any time, and could be mistaken.” Barr further wrote:

…I was concerned that the vagueness of the local officials’ statement, coupled with the Department’s silence, was contributing to undue speculation and potentially unsettling the public more than necessary about the election’s integrity. I considered this was a matter in which the public interest could likely be best served by getting out in front of the story by recounting the basic facts that prompted the investigation. Among other things, doing so would help dispel needless mystery and speculation by delimiting the nature and scope of the issue being investigated.

Barr’s letter went on to assert that a public statement would “have a salutary deterrent effect” and serve as “a reminder to election administrators” of their responsibility to safeguard election integrity. Barr ultimately stated that he had determined, in his judgment, that “a strategy of remaining silent” about details of the Luzerne County ballot investigation “would have ended up doing more harm to the public interest than getting out in front with a more forthcoming statement in the first place.”76 Freed, for his part, told us that he believed releasing details about the investigation was important because it was the “best way” to keep the public officials running these elections “honest,” and because it would alert military voters that their ballots may have been discarded.77

In comments submitted to the OIG after reviewing a draft of this report, Barr stated that it was important at the outset to reassure the public “that there was a legitimate basis for the federal government to take over the investigation.” Barr continued: “The key fact that justified the federal government taking over the investigation was that only Trump ballots—no Biden ballots—had been found discarded.” Barr added that this fact was a “red flag” for investigators and “suggested that the discarding of ballots was not random or accidental, but potentially intentional.” In comments submitted after reviewing a draft of this report, Freed’s counsel echoed this sentiment, stating: “Had the statement not included [that the discarded ballots were all for President Trump], it would have omitted the operative fact that provided the predicate for federal involvement and would have left the public completely confused.” We found that this concern expressed by both Barr and Freed about federal involvement could just as easily have been satisfied by stating that all of the ballots were for the same presidential candidate, rather than identifying a particular candidate, which would have avoided injecting partisan considerations into a public statement by the Department. Moreover, the MDPA statement includes no information about the choices of the voters in the district’s congressional race, which would have been equally relevant to establish federal jurisdiction in the matter.

76 We were struck by the similarity between the justifications presented here and the explanation former FBI Director James Comey gave during our review of his conduct in advance of the 2016 election. In explaining why he announced to Congress that the FBI had resumed its investigation of then presidential candidate Hillary Clinton less than 2 weeks before the 2016 election, Comey told the OIG that he had determined, in his own judgment, that “there was a powerful public interest” in commenting on the Clinton email investigation, and that it would have been “catastrophic” to the Department and the FBI to not do so. DOJ OIG, A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election, Oversight and Review Division Report 18-04 (June 2018), https://oig.justice.gov/reports/review-various-actions-federal-bureau-investigation-and-department-justiceadvance-2016, 365.

77 Neither Barr nor Freed, nor any witness we spoke to, suggested that § 1-7.400(C)’s second exception—permitting comment on investigations when “release of information is necessary to protect the public safety”—applied here.

Ultimately, DOJ IG found the whole thing to be wildly inappropriate, but because of the discretion afford the Attorney General to share information with the President and make public comment, it said that it could not find that Barr had engaged in misconduct; it did find that Freed had engaged in misconduct, both by blabbing about an ongoing investigation and doing so without consulting with Public Integrity before doing so.

DOJ referred both Barr and Freed to the Office of Special Counsel for a review of whether this was a Hatch Act violation.

We concluded that the MDPA statement did not comply with the DOJ policy generally prohibiting comment about ongoing criminal investigations before charges are filed; however, we did not find that either Barr or Freed committed misconduct because of ambiguity as to the applicability of Barr’s authority to approve the release of the statement pursuant to 28 C.F.R. § 50.2(b)(9). We found that Freed violated the DOJ policy prohibiting comment about ongoing criminal investigations before charges are filed when he publicly released his letter to Luzerne County officials. We found that Freed also violated DOJ policies requiring employees to consult with PIN before issuing a public statement in an election-related matter and requiring U.S. Attorneys to coordinate comments on pending investigations with any affected Department component—in this case, the FBI. Finally, while we were troubled that Barr relayed to President Trump investigative facts about the Luzerne County matter, we concluded that Barr’s decision to provide that information to President Trump did not violate DOJ’s White House communications policy because the policy appears to leave it to the Attorney General’s discretion to determine precisely what information can be shared with the President when a communication is permissible under the policy, as we found was the case here.

We make a number of recommendations in this report. First, as DOJ policy does not address what information Department personnel may include in a statement that is determined to be necessary to reassure the public that the appropriate law enforcement agency is investigating a matter or to protect public safety, we recommend that the Department revise this policy to require that the information contained in a statement released pursuant to JM 1-7.400(C) be reasonably necessary either to reassure the public that the appropriate law enforcement agency is investigating a matter or to protect public safety. Second, we recommend that the Department make clear whether the Justice Manual’s Confidentiality and Media Contacts Policy, Justice Manual § 1-7.000, applies to the Attorney General. Third, we recommend that the Department clarify its policies to address whether any of the provisions of 28 C.F.R. § 50.2 remain Department policy in light of the existence of the Confidentiality and Media Contacts Policy contained in the Justice Manual. Fourth, if 28 C.F.R. § 50.2(b)(9) remains valid Department policy, we recommend that the Department require that requests to the Attorney General or Deputy Attorney General for approval to release information otherwise prohibited from disclosure and any approval to release such information pursuant to § 50.2(b)(9) be documented. Lastly, we recommend that the Department consider revising its White House communications policy to clarify what information can be disclosed to the White House in situations where the policy permits communication about a contemplated or pending civil or criminal investigation.

As noted above, the federal Hatch Act prohibits executive branch employees from using their “official authority or influence for the purpose of interfering with or affecting the results of an election.”89 The U.S. Office of Special Counsel has sole jurisdiction to investigate Hatch Act violations.90 Because the circumstances described in this report raise a question as to whether these former Department officials’ actions violated the Hatch Act, we are referring our findings to the Office of Special Counsel for its review and determination of that issue.

It’s not entirely clear how many of DOJ IG’s recommendations DOJ has implemented since this report was released in July.

But one way or another, the conduct described in this report would look indistinguishable from the investigations currently ongoing. That is, weighing in to talk about whether specific election crimes were being committed by Trump or Harris supporters (or none of the above, as was the case in Luzerne and may be the case if the Northwest arsonist really is motivated by Gaza, as the incendiary devices imply) would be deemed a violation of DOJ guidelines.

DOJ is only supposed to make comments to reassure people that something is under investigation. DOJ has done so, formally, in Washington.

“The US Attorney’s Office and the FBI want to assure our communities that we are working closely and expeditiously together to investigate the two incendiary fires at the ballot boxes in Vancouver, Washington, and the one in Portland, Oregon, and will work to hold whoever is responsible fully accountable,” US Attorney Tessa M. Gorman and Greg Austin, acting special agent in charge of the FBI’s Seattle office said in a statement Tuesday.

But you are not going to hear more than that unless and until DOJ charges someone.

On September 4, at the very press conference where he rolled out the indictment against the useful idiots being secretly paid by RT, on the very last day before the election blackout would go into place, Merrick Garland discussed the Election Threats Task Force that Lisa Monaco put into place back in June 2021.

DOJ has made statements about specific crimes — including the one Elon Musk is suspected of committing, as well as more general efforts to prosecute Election Fraud.

I promise you, that’s all you’re going to get unless charges are filed.

Ball of Thread: Zombie Mueller

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In this episode of Ball of Thread, we showed how Bill Barr’s efforts to kill the parts of the Mueller investigation that continued after he misrepresented the report itself led directly to January 6. In his effort to lower the sentencing recommendation for Roger Stone, for example, Barr treated threats from Stone and the Proud Boys against a Federal judge a “technicality.” And after Barr’s efforts to reverse the prosecution of Mike Flynn failed, Trump pardoned his former National Security Adviser just as Flynn and Sidney Powell were creating the Big Lie.

Ball of Thread: Barr’s Butchery

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In this week’s installment of Ball of Thread, LOLGOP and I talk about how Barr deliberately set out to kill the Mueller investigation. Here’s the Patreon for the series.

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Bill Barr Didn’t Hear When Trump Asked, “Russia Are You Listening?”

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One of the most surprising details in the book by former Mueller prosecutors, including Aaron Zebley, is that they added a contentious half paragraph the morning they finished the report.

For volume I, we discussed one last time whether the report was sufficiently clear about “coordination” with Russia. One of the sticking points: on July 27, 2016, Trump had made his “Russia, if you’re listening” speech urging Russia to find Clinton’s “missing” emails. Five hours later, the Russian GRU launched attacks into the Clinton team’s personal email accounts. This appeared to be Russia’s response to Trump’s speech.

Bob had tied our work to established criminal standards. We did not view this “call and response”—Trump’s publicly asking for an action and then Russia taking one—as sufficient for a criminal agreement or conspiracy. But without more explanation, we were concerned a reader might not understand why these July 27 events did not constitute “coordination.” That morning, we added a paragraph to the introduction to volume I to make our reasoning clearer (emphasis added):

“Coordination” does not have a settled definition in federal criminal law. We understood coordination to require an agreement—tacit or express—between the Trump Campaign and the Russian government on election interference. That requires more than the two parties taking actions that were informed by or responsive to the other’s actions or interest. We applied the term coordination in that sense when stating that the investigation did not establish that Trump campaign coordinated with the Russian government in its election-interference activities.

There’s more to this paragraph: it starts by explaining why prosecutors didn’t assess Trump’s actions in terms of “collusion,” another term that’s not a crime. Unlike “collusion,” though, “coordination” was included in Rod Rosenstein’s appointment order. As a prosecution and declination report, Mueller had to (and did) assess conduct in terms of law, not buzzwords or Rosenstein’s ill-considered measures.

Rather than providing clarity, this paragraph made things worse, because those who had spent years talking about “collusion,” incorrectly claimed the report had addressed it. No collusion!!! All the headlines blared. No collusion!!! Bill Barr keeps claiming.

In fact, as the book describes it, prosecutors added the coordination language, at least, not to expand the scope of the report (to include terms people used to describe it), but to address how they approached what the book calls “call-and-response:” when Russia and Trump’s campaign worked in concert without formally agreeing to do so.

Of late, I’ve come to understand this “call-and-response” structure as Russia’s effort to lock Trump in, ensuring a benefit to itself, in his compromise and America’s polarization, whether or not he took the actions Russia would prefer.

There’s a sad irony here. Prosecutors thought that the “are you listening” comment was so outrageous, they needed to explain why it was nevertheless not a crime, because of course must appear outrageous to everyone else.

But in reality, it didn’t appear to their bosses at all. Both Rod Rosenstein and Bill Barr, for example, repeatedly excised a key part of Mueller’s findings: that Russia was seeking to help Trump and Trump was happy to accept the help from a hostile foreign country.

Rod Rosenstein did so when announcing the Internet Research Agency troll indictment; Rosenstein even ad-libbed a claim that the indictment did not allege the information operation changed the outcome of the election.

One thing we noticed about Rosenstein’s remarks was that he never stated that the defendants’ actions were designed to help Trump and disparage Clinton, even though that was one of the core allegations of the indictment. And at the end of his remarks, he added something that wasn’t in the indictment: “There is no allegation,” he said, “that the charged conduct altered the outcome of the 2016 election.”

Bill Barr didn’t say Russia was trying to help Trump when he informed Congress of his spin of the results.

It omitted or misstated our analysis. In its discussion of volume I, the letter accurately stated our core charging decisions, but left out any reference to the intent of the Russian social media campaign to aid Trump in his bid for the White House, nor did it describe that same objective driving the hack-and-dump operation run by Russian military intelligence. There was no mention of the contacts between members of the Trump campaign and Russian officials and proxies. The letter also left out a core conclusion of volume I: that the “Russian government perceived it would benefit from a Trump presidency and worked to secure the outcome, and that the [Trump] Campaign expected it would benefit electorally from information stolen and released through [Russian military] efforts.

And Barr did it again — refused to say Russia was trying to help Trump — when he gave a press conference with the release of the Report.

[A]s he had in his March 24 letter, he omitted any mention of Russian support for Trump’s election bid. He then described the Russian military intelligence operation to steal and dump Clinton campaign emails, but again omitted the Russian government’s purpose of harming Clinton’s election bid in order to aid Trump. Barr also did not mention our finding that the Trump campaign expected it would benefit electorally from information stolen and released through Russian military intelligence efforts.

He then described the Russian military intelligence operation to steal and dump Clinton campaign emails, but again omitted the Russian government’s purpose of harming Clinton’s election bid in order to aid Trump. Barr also did not mention our finding that the Trump campaign expected it would benefit electorally from information stolen and released through Russian military intelligence efforts.

To be sure, the prosecutors’ larger gripe was always how Barr dealt with volume II. Mueller’s team had decided they would not to make a prosecutorial decision, but Barr spun it as a choice that they could not make such a decision. (My instincts that they deliberately left this for Congress are confirmed by the book.)

But the book tracks how the people overseeing the investigation refused to admit something central to it: Russia wanted to help Trump, and Trump invited that help.

“If it’s what you say I love it especially later in the summer.”

It’s an important observation given what came next. The entire Durham investigation was premised on ignoring Trump’s request for help. Two years later, for example, Barr insisted that the Russian investigation started from the Steele dossier (and astonishingly, Barr dismissed the possibility that Russia would want something in exchange for electing Trump).

Bill Barr and John Durham deliberately kept themselves ignorant of all that. Three years later, Barr continued to insist the investigation arose from the Steele dossier (and, insanely, said that since Russia didn’t need help doing a hack-and-leak, there was no reason to investigate Trump). Durham repeatedly tried to prevent those he charged from describing how Trump’s public comments (and their likely knowledge that another hacking attempted followed the comments) drove their concerns about Trump’s ties to Russia, even though as Marc Elias described, that was the reason they all started to focus on Russia.

Even at the end of his four year investigation, Durham claimed to have no idea that in response to Trump’s comments, Russia attempted to hack a new target.

Of course, Barr and Durham had to ignore Trump’s solicitation of a hack. If they hadn’t, they would never have had an excuse to launch the Durham probe, to pretend that investigating why Trump’s campaign got advance warning of the operation and then goaded it on made total sense. Barr and Durham had to pretend that none of this posed a risk to the country.

For a report for Bill Barr, Mueller added language trying to explain why they didn’t treat Trump’s successful solicitation of an attempted hack against his opponent as a crime.

But Barr, both before, in real time, and for years after, never even considered that a problem. Or couldn’t, because if he did, he couldn’t criminalize Hillary Clinton’s victimization at the hand of Russia.

Bill Barr, “So Far as We Knew”

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As I described, the book written by Aaron Zebley and two of Robert Mueller’s other former prosecutors breaks most new ground in its description of discussions between Mueller’s team, Trump’s lawyers, and those supervising the investigation at DOJ.

As it describes, for months, the investigation was working towards a January 27, 2018 interview of Trump, to be held at Camp David. But shortly after Mike Flynn pled guilty, Trump attorney John Dowd (whose call to Rob Kelner floating a pardon made it into the report but not the book), started getting cold feet. On January 30, Dowd told Jim Quarles, “I can’t let this guy testify. I will resign before he does.” On March 1, Dowd and Jay Sekulow first pitched the idea of written questions. Four days later, Mueller first raised the possibility of a subpoena; Dowd said that would be war. Trump would plead the Fifth before he’d respond to a subpoena.

Three weeks later, Dowd resigned.

On April 18, Sekulow told Quarles that Trump was close to bringing on new lawyers. Of Jane and Marty Raskin, Sekulow spoke of their high stature.

“We are talking to people with high stature to take over the representation,” Sekulow said. “Just finalizing everything now.”

“Good,” Jim said.

“You know them, actually. I think you’ve worked with them in the past. They are like-minded people who share our desire to get to the goal line.”

Of Rudy Giuliani (who was officially disbarred in DC yesterday), Sekulow said he hoped he wouldn’t join the team.

Sekulow continued, “There’s a third person too, but I’m hopeful he won’t join.” He did not divulge this person’s identity.

[snip]

Sekulow then said, “And the third person is, well, America’s Mayor.”

Jim thought for a brief moment. “Rudy?”

“That’s correct,” Sekulow said. “Rudy Giuliani is coming on too.”

Rudy almost immediately ran afoul of the Mueller team.

At a meeting on April 24, there was a discussion about whether Trump even could be charged. Bob told Rudy that “we plan to follow the [OLC] regulations” prohibiting the indictment of a sitting President, though in a way that left wiggle room in case (as the book describes) the team found “evidence proving Trump truly was a Manchurian candidate.” Rudy asked whether Trump was a witness, a subject, or a target; Mueller answered he was a subject.

Giuliani asked, “Is he a subject regardless of the OLC opinion?” In other words, were we not labeling Trump a “target” simply because he couldn’t be indicted? Or was he a subject because there was not enough evidence to make him a target?

Bob said that we had deliberately withheld making a judgment about the president’s conduct, but we would get back to them if we could say more.

In spite of repeated assurances the meeting was confidential, Rudy promptly ran to the press and (per the book, at least) misrepresented what Mueller said. As the book describes, Rudy told journalists that if Trump couldn’t be indicted, he couldn’t be subpoenaed.

That’s all background to the discussion of whether Trump could be charged with obstruction. As the book describes, Trump’s request that Don McGahn make a false statement disclaiming Trump’s effort to replace Mueller involved the creation of a false record in an attempt to obstruct the investigation; it clearly involved creating a false evidentiary record, and so would qualify no matter how you interpret 18 USC 1512(c)(2). But the other obstruction incidents did not (this issue has now been decided by Fischer to require evidentiary impairment, meaning the only obstruction incident that could be charged against Trump, ignoring the immunity opinion, is the McGahn one). So there was an extended dispute, starting in May 2018, which a long chapter discusses at length.

But then, unbeknownst to Mueller, Bill Barr weighed in, writing Rod Rosenstein and OLC head Steven Engel that Mueller’s views on obstruction were wrong.

As the book describes, Barr’s allegedly unsolicited memo was “remarkably timely,” because, from that point forward, Rosenstein’s team seemed to adopt precisely the analysis Barr offered.

We didn’t know it at the time, but just as we were starting our subpoena discussion with the DOJ, another person weighed in with the department on these very issues.

On June 8, 2018, the once-and-future attorney general, William Barr, submitted a nineteen-page memo to Rosenstein and Assistant Attorney General Steven Engel, who was then head of the DOJ’s Office of Legal Counsel. In his memo, Barr argued that section 1512 did not apply to President Trump in the manner Barr imagined we might be seeking to apply it. We say “imagined” because Barr had no actual insight into our work, so far as we knew.

Given that Barr was a private citizen at that time, his memo was remarkably timely. It posited (fairly accurately) that we were then “demanding that the President submit to interrogation about [obstruction] incidents, using the threat of subpoenas to coerce his submission.” Barr’s bottom line was that a prosecutor, even a special counsel, should not be allowed to require an examination of the president regarding these incidents, end of story. According to Barr, section 1512 prohibited only corrupt acts that impaired the integrity or availability of evidence, for instance, an act that destroyed a document or induced a witness to change his testimony. Barr’s memo stated that a president’s conduct can “obviously” be considered obstruction of justice in the “classic sense of sabotaging a proceeding’s truth-finding function. Thus, for example, if a President knowingly… induces a witness to change testimony… then he, like anyone else, commits the act of obstruction.”

But Barr maintained that the obstruction statute did not apply to what he termed the president’s “facially-lawful” actions—such as firing an FBI director or ending a federal criminal prosecution—even if such an action were done with corrupt intent and impacted a grand jury proceeding. In other words, even if Trump fired Comey for a corrupt purpose, that could not be a crime, in Barr’s view.

We wouldn’t become aware of Barr’s memo until December 2018, the day before his Senate confirmation hearing for attorney general. Nevertheless, his memo seemed to capture the fundamental issues Rosenstein and the department would raise throughout that summer when it came to subpoenaing the president. Barr may have previewed the department’s position when he wrote: “It is inconceivable to me that the Department could accept Mueller’s interpretation of 1512(c)(2). It is untenable as a matter of law and cannot provide a legitimate basis for interrogating the President.” [my emphasis]

A couple of points about this.

First, the Zebley book doesn’t address any documents that have subsequently been released. Most notably, while the book discusses the events immediately following the conclusion of the report at length, it doesn’t address Bill Barr’s memo declining prosecution on obstruction (the chapter on Barr’s letter to Congress is called “The Barr Report”), even though Barr egregiously avoided comment on the pardons that Trump was using to silence Mike Flynn, Paul Manafort, and Roger Stone.

Similarly, it doesn’t address the communications with OLC that were liberated via FOIA. Those show that starting on July 12 — the day before the GRU indictment incorporating reference to Roger Stone — Ed O’Callaghan shared everything that went between Mueller and Trump’s lawyers with Engel who, like Rosenstein, got the Barr obstruction memo, and along with O’Callaghan would “advise” Barr to release his letter to Congress. Starting on July 26, National Security Division head John Demers got added. Those things, taken together, strongly suggest that OLC was involved from the start to find a way to find that Trump couldn’t be charged (remember that Engel did similar cover-up work during impeachment).

All that is not that suspicious if, indeed, “Barr had no actual insight into our work.”

“So far as we knew.”

But it would be if Barr did have actual insight into what Mueller was doing.

LOLGOP and I are hard at work on our Ball of Thread episode on precisely how Bill Barr killed the Mueller investigation. And in that context, I’ve returned to something I’ve puzzled over for years: Barr’s description, in his book, of his decision to return to government with the intent of killing the Mueller investigation and starting an investigation without a crime, the Durham investigation.

I would soon make the difficult decision to go back into government in large part because I saw the way the President’s adversaries had enmeshed the Department of Justice in this phony scandal and were using it to hobble his administration. Once in office, it occupied much of my time for the first six months of my tenure. It was at the heart of my most controversial decisions. Even after dealing with the Mueller report, I still had to launch US Attorney John Durham’s investigation into the genesis of this bogus scandal. At the end of my first year in office, the President was impeached over a harebrained effort, involving Rudy Giuliani, to push back on the Russia collusion canard by digging up an alleged counter-scandal in Ukraine implicating the Clinton campaign or Vice President Biden and his son Hunter.

The fallout from Russiagate continued during my last year in office. My relationship with the President frayed as he became frustrated by my failure to bring charges against those who had ginned up Russiagate and the failure of Durham’s investigation to produce more rapid results.

I’ve always believed — even already taped for the podcast my belief — that you need no more than Barr’s reactionary views (which happen to match those of several SCOTUS justices), his past work obstructing Iran-Contra, and years of submersion in Fox News propaganda to explain his actions. Just like you need no more than Trump’s narcissism to explain his actions, you need no more than those three characteristics of Barr to explain his willingness to chase Russian disinformation in his effort to kill concerns about Trump’s ties to  Russia.

You need no more to explain their actions, but I can never shake the possibility there’s more.

All the more so given Lev Parnas’ claim, in interviews after the release of From Russia with Lev, that Victoria Toensing got Barr hired.

Now, Parnas’ reference — and his visibility on interactions between Toensing, Rudy, and Barr — post-dates Barr’s June 2018 memo. He’s talking about Toensing’s assurances to Trump, after he fired Jeff Sessions, that Barr would make the Mueller investigation go away (though if Toensing made that assurance, the Ukraine stuff looks far different, as does Barr’s treatment of it as a mere “counter-scandal”).

But Toensing was involved in the effort to make the Mueller investigation go away far earlier.

She represented Sam Clovis (who was interviewed, without an attorney, in two parts on October 3, 2017, and interviewed, including before a grand jury, with Toensing, on October 26, 2017). George Papadopoulos probably told Clovis that Russia had Hillary’s emails and Clovis was involved in Papadopoulos’ apparent discussions about setting up a September 2016 meeting with Russia, but Clovis testified that he had no memory of either of those things. And she represented Erik Prince (who was interviewed on April 4 and May 3, 2018) — who, like Steve Bannon, deleted their texts to each other from during the period when Prince was meeting with Kirill Dmitriev in the Seychelles, but has no memory of doing so.

Indeed, Toensing’s spouse, Joe DiGenova, even briefly said he was representing Trump, during that transition where Rudy got added. During his Ukraine caper a year later, Rudy repeatedly proposed that he do the work while Toensing billed for it. So if you got Rudy, you got Toensing.

And if Toensing later was involved in getting Barr hired, it would be unsurprising if she was a contact with him before that.

Incidentally, Barr never once mentions Toensing in his book. He mentions Rudy, who is a central focus of his book, around 44 times. He exercised his right to remain silent about Toensing.

In a follow-up, I’m going to talk (again) about the blind spot that connects the Mueller investigation and the Durham investigation — the blind spot at the core of Bill Barr’s effort to cover up Trump’s ties to Russia.

For now, though, consider the possibility that Barr had a great deal more insight into the Mueller investigation when he wrote that memo than he let on.

Why No One Went to Prison for Rudy Giuliani’s Hunter Biden Corruption

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Like many people, I’ve watched From Russia with Lev since it was released the other day.

The documentary tells a story I’ve covered here in real time: of how, with Lev Parnas’ help, Rudy Giuliani solicited dirt on Hunter (and Joe) Biden from foreigners, mobsters, and Russian spies, in hopes of helping Trump stay in office.

As told, with Lev’s spouse Svetlana serving as a key narrator, it’s a compelling, personal story.

I’ve also told — am one of the only people who has told — the story that many people are now asking: why no one went to prison for this caper. The documentary has led many people, understandably, to demand to know why no one (besides Lev, they sometimes say, inaccurately) went to prison for all this, which has, predictably, led to the same conspiratorial bashing of Merrick Garland we saw with the January 6 investigation.

The question is premised on certain choices the filmmakers made: focusing away from Dmitry Firtash and especially from Andrii Derkach (who got involved after Lev was done), crediting the spin of Lev’s attorney, Joseph Bondy, and simplifying the investigation of Hunter Biden. The film doesn’t fill in any of the gaps I noted in Lev’s book, and creates new ones. It creates the appearance that Lev was prosecuted solely to protect Trump from impeachment and that the investigation into Hunter arose solely out of Rudy’s efforts. Those choices make sense for narrative and legal reasons, but as a good story does, it simplifies the issue.

And I promise you, the film vastly understates the corruption that went on. Wildly understates it. One goal I have for Ball of Threads is to unpack what is currently known of that far deeper corruption, but that still just scratches the surface.

The quick explanation of why Rudy didn’t go to prison for this is that:

  • Bill Barr did wildly corrupt things to protect him, Donald Trump, and himself
  • By the time, shortly into the Biden administration, DOJ tried to pursue Rudy, Rudy’s phones were corrupted

Trying to hold Garland responsible for failing to prosecute the underlying crime amounts to doing Bill Barr’s propaganda work, because Barr worked relentlessly to protect Rudy.

You can, however, hold Garland responsible for one thing: the continued appointment as Special Counsel of David Weiss, who as a witness to Barr’s corruption, is conflicted in any investigation pursuing Alexander Smirnov’s attempts to criminally frame Joe Biden.

This post explains all that in more detail.

 

Lev didn’t go to prison for the Hunter Biden stuff

As I said, the film leaves the impression that Lev was arrested to protect Trump during impeachment by silencing the key witness.

But that’s not why Lev went to prison (as a news clip in the movie tacitly admits).

Lev and Igor Fruman (along with David Correia and Andrey Kukushkin) were first charged on October 9, 2019, via indictment that was (according to then US Attorney for SDNY Geoffrey Berman’s memoir) drafted quickly overnight in advance of Lev and Igor’s trip to meet Dmitry Firtash in Vienna. From Berman’s memoir, I’m not 100% sure whether he pushed it because he genuinely feared they were about to flee the country, felt he had to do so before Barr intervened … or for more nefarious reasons.

The charges were:

  • Conspiring to make a bunch of political donations in the name of Global Energy Producers
  • Lying to the Federal Election Commission
  • Falsifying a document to the FEC
  • Laundering donations from Russian Andrey Muraviev to pay pro-cannabis politicians

As Bondy described, the indictment implied that Lev and Igor’s political contributions to Pete Sessions were tied to an attempt to fire Marie Yovanovitch. But that was not charged as FARA.

On September 17, 2020, the indictment was superseded. Lev and Correia’s longterm Fraud Guarantee fraud was added and the charges tied to Muraviev (who was secretly indicted that same day) were bumped up. The paragraph describing a payment to Sessions took out the reference to an Ambassador, describing it instead as to “further their political goals.” There were still no FARA charges though.

Ultimately, Lev was convicted at trial in October 2021 of the GEP and Muraviev donations, and in March 2022, pled guilty to the fraud guarantee charges. He was never charged with FARA violations.

Bondy’s insinuation that SDNY took out the foreign agent aspect to protect Rudy is wholly inconsistent with the warrants (linked below) targeting Lev and Rudy unsealed last year.

They show that the investigation into Lev, which started based on a Campaign Legal Center complaint, initially focused on campaign finance crimes. In August 2019 — after the firing of Marie Yovanovitch but before the disclosure of the Perfect Phone Call — SDNY began to turn to Foreign Agent suspicions (though one of two warrants obtained in August 2019 was not executed). After the arrest, SDNY more aggressively turned to developing the Foreign Agent prong of the investigation. On November 4, 2019, SDNY obtained warrants targeting Rudy (which were not released last year). On December 10, 2019, the Foreign Agent prong continued.

That’s when Bill Barr intervened to kill that prong of the investigation, certainly as it pertained to Rudy, as I’ll lay out below.

After that point, SDNY focused on the Fraud Guarantee fraud.

It’s not that Lev went to prison for this but Rudy did not. On the contrary, Barr worked hard to ensure no one could go to prison on such charges.

While Barr was doing that, SDNY appears to have put that investigation on ice and attempted, without success, to resuscitate once Barr was out of office.

SDNY believed Lev was not fully forthcoming

The film makes it sound like SDNY refused Lev’s efforts to cooperate against Rudy and everyone else.

It’s more complicated than that.

SDNY has a rule: To enter into a cooperation agreement with them, one has to plead to all crimes. Geoffrey Berman described it this way in his memoir, explaining why SDNY didn’t give Michael Cohen a cooperation deal.

Cooperation in the Southern District means full cooperation—taking responsibility for all criminal actions, not just a select few. If any one area of a defendant’s life is off limits, we do not recommend leniency in sentencing. (Some districts are more transactional: you give a little, you get a little.)

When defendants agree to this and become cooperating witnesses against others, their testimony is more credible. Our prosecutors can tell juries that if the cooperator is caught lying, the agreement can be revoked and he or she will be prosecuted not only for the crimes covered at trial but for a host of others that the cooperator copped to as part of his agreement.

The SDNY rules also serve as a powerful investigative tool, because when you acquire absolute cooperation, your avenues for making other cases expand dramatically. We often learn of additional criminal activity—whole new threads of wrongdoing that in some instances we knew nothing about.

That’s one reason why SDNY didn’t give Lev a cooperation agreement. As SDNY explained in their sentencing memo for him, Lev’s attorney, Joseph Bondy, proffered information in the months after his arrest in October 2019. But Bondy provided details that were contradicted by the evidence (at the time, Lev may not have understood that FBI had obtained iCloud content he deleted). SDNY then did a reverse proffer on November 6, 2019 (two days after obtaining a warrant for Rudy’s comms), meaning they told Lev and Bondy all the evidence they had against Lev. After that, Bondy replied saying that Parnas was unwilling to plead guilty to the campaign finance crimes charged against him.

After that meeting, Parnas’s counsel wrote the Government to report that he could not “accept responsibility for criminal activity for which he is not guilty,” which based on discussions with counsel, the Government understood to be a reference to, among other things, the campaign finance and false statements offenses of which Parnas now stands convicted.

That’s consistent with Parnas’ own memoir, in which he still attributes the campaign finance stuff as a lack of awareness of the law and of the Russian source of the money he was throwing around.

According to SDNY, that unwillingness to fully accept responsibility continued when Parnas did sit for a proffer on March 5, 2020.

In addition, SDNY was unable to corroborate some of the things Parnas claimed in that March proffer.

[T]he Government was ultimately unable to corroborate significant portions of what Parnas said.

This was during a period when Barr was aggressively trying to limit SDNY’s investigation, so it may not have been Lev’s fault they couldn’t corroborate this stuff.

Finally, DOJ generally has a rule: Cooperating witnesses who chat to the press are usually useless as witnesses. This makes sense for a lot of reasons, not least that it alerts criminal targets of what prosecutors do and don’t know. SDNY told Parnas this early on, in November 2019, and his early 2020 interviews would have only exacerbated this.

At the close of that [November 6, 2019] meeting, the Government informed Parnas that public spectacles, leaks, and social media postings could undermine his credibility and diminish his value as a potential cooperating witness.

Given Barr’s fuckery, I don’t know if Parnas could have pulled off cooperation in any case. But even without it, things he himself did made it virtually impossible he could get a deal from SDNY.

And honestly, it wouldn’t have served his purposes. He needed to come out publicly against Trump, but that was inconsistent with the ability to cooperate criminally. The impeachment was his one shot for accountability, and Congress blew that. (As I was writing this, I considered that, had Democrats made Lev’s testimony more central to impeachment, Republicans might have forced Hunter Biden to testify, as they were threatening at the time; I have long wondered whether Trump’s impeachment defense team had a copy of the laptop.)

Bill Barr insulated the impeachment review from the Hunter Biden caper

The film focuses closely on how, after Trump’s Perfect Phone Call with Volodymyr Zelenskyy was released, onetime Trump defense attorney John Dowd, speaking as a lawyer for Lev and Igor, first refused to cooperate with Congress. Their arrest, days later, put Parnas and Fruman at the mercy of lawyers arranged by Trump, until Parnas hired Bondy.

It is true that their arrest discredited them as witnesses.

But it wasn’t just their arrest that limited the investigation from impacting impeachment. DOJ also did some tactical things to prevent the Trump impeachment from merging with Lev’s prosecution.

When Lev and Igor were arrested, DOJ told the press that Barr had been briefed on the investigation from early in his tenure as Attorney General.

That seems inconsistent with a claim that Barr made in his memoir (which IMO is largely CYA about these matters). Barr claimed he had no awareness of Rudy’s efforts to investigate Biden, and only learned of it from news reports.

By the spring of 2019, I had noticed news stories stating that Giuliani was pushing the Ukrainians to investigate Biden’s role in Shokin’s dismissal. But other than what I glimpsed in the media, I had no knowledge of the former mayor’s activities. During the spring, I expressed my concern about Giuliani with the President. As I was leaving an Oval Office meeting on another topic, I paused briefly to raise the matter.

“Mr. President,” I said, “I don’t think you are being well served by Giuliani at this point. Mueller is over, and Russiagate is dying. Why is Giuliani thrashing about in Ukraine? It is going to blow up—”

“Yeah,” the President said, cutting me off. “I told him not to go over there. It was a trap.” President Trump gave the impression Giuliani had a degree of independence and was going to pull back. I did not press the point.

Even imagining that SDNY kept these details from Barr, by August 14, 2019, it is highly likely that the National Security Division had notice of the focus on Rudy. That’s when possible Foreign Agent charges (and a reference to Marie Yovanovitch) got added to the warrants targeting Lev and Igor.

NSD head John Demers was one of the first people at DOJ to review the Perfect Phone Call. He did so, on August 15, 2019, after SDNY had turned to FARA crimes normally overseen by NSD.

That may explain why DOJ did something that served to insulate the Public Integrity (PIN) review of the Perfect Phone call from the ongoing investigation of Rudy’s efforts with Lev and Igor: Demers and Criminal Division head Brian Benzkowski only had PIN review the transcript of the call, not the full whistleblower complaint. Had investigators done what investigators have been ordered to do since 9/11 with the full complaint, they would have searched on all the references in the complaint, including those in the OCCRP report on Lev and Igor referenced repeatedly in it. That, in turn, should have identified the SDNY investigation, which would have immediately implicated Trump in the investigation.

Effectively, by focusing solely on the transcript, someone at DOJ deliberately blinded that PIN review to an ongoing FARA investigation, thereby eliciting a clean bill of health for Trump.

There’s a lot more that Barr did as the scandal unfolded, as I’ve laid out here and here. But the first thing someone at DOJ did was to gin up a prosecution declination before anyone could tie Trump’s coercion of Zelenskyy with the existing investigation into Lev and Igor.

Bill Barr played a shell game to protect Rudy’s “collusion” with a known Russian spy

Barr was nowhere near done.

There seems have been an ongoing cat-and-mouse between SDNY and Barr.

When SDNY got the indictment, according to Berman, they got approval from two PIN prosecutors in the middle of the night, not NSD, which may be why only the campaign finance crimes were in the indictment and only the campaign finance crimes were on the warrants for the searches done the day of arrest (this would have served to hide that part of the investigation from Lev and Igor, too). That’s the biggest piece of evidence that SDNY did not arrest Lev and Igor as a favor for Barr, as he attempted to kill impeachment, but the reverse.

In October, SDNY got warrants to search everything for the FARA crimes. On November 4, 2019, SDNY got warrants targeting Rudy for FARA crimes.

On December 5, 2019, Rudy met, with Barr’s foreknowledge, known Russian asset Andrii Derkach.

And on December 10, 2019, SDNY got further warrants in that investigation.

DOJ had just let Rudy meet with a Russian spy while SDNY had an ongoing investigation into whether Rudy was working with foreign spies. It was insane to let that happen in any case. All the more so given the ongoing investigation from the Sovereign District of New York, as SDNYers like to call themselves.

So Barr had to gut SDNY’s sovereignty.

Barr did several things:

  • Assigned any investigation of Derkach, with whom Rudy had just met, to EDNY, not SDNY where it would be a natural follow-on.
  • Made EDNY US Attorney Richard Donoghue the gate-keeper for all Ukraine investigations, requiring SDNY to get permission from him before taking any investigative steps against Rudy or Lev.
  • Asked Pittsburgh US Attorney Scott Brady to play a role. Publicly, Barr and Brady claimed this was a vetting process of tips from Ukraine. But Brady’s congressional testimony revealed he did almost no functional vetting; he ignored evidence from the impeachment and some key public articles. Plus, he did more than vetting. Brady also checked in on investigations into all the oligarchs from whom Rudy had solicited dirt on Hunter Biden, with uncertain outcome; he tried to tell SDNY he knew better than they did about their investigation; he demanded details about the investigation into Hunter Biden. Most importantly, some yet unidentified person told Brady to seek out FBI informant Alexander Smirnov, who had made a reference to Hunter Biden in an informant report about Mykola Zlochevsky years earlier. By May 2020, Smirnov was allegedly attempting to frame Joe Biden with allegations of bribery, and Brady made that part of his work. Once again with Smirnov’s allegations, Brady did little functional vetting, falsely claiming that his travel schedule confirmed the claim, rather than debunked it.
  • Barred the FBI Agents working with SDNY from receiving certain information, including Rudy’s interview with Scott Brady.
  • Ordered David Weiss, whom DOJ had put in charge of an investigation into DC and CA resident Hunter Biden, to consult with Brady on his tips.

These efforts halted what should have been obvious next steps in the SDNY investigation, ensured Rudy could share information obtained from a known Russian spy with no legal risk, and ordered that some of Rudy’s information be used in an investigation of Joe Biden’s kid. DOJ was literally protecting a Russian influence operation, because it served the interest of the President.

The biggest reason why Rudy didn’t go to prison for this is that Barr protected this entire process, including the solicitation of dirt from a known Russian spy.

DOJ approved steps against Rudy on Lisa Monaco’s first day on the job

While Trump remained in office, SDNY tried several more times to get warrants targeting Rudy, but were denied.

On Lisa Monaco’s very first day on the job, April 21, 2021, SDNY finally obtained warrants targeting Rudy. Merrick Garland’s DOJ did precisely what everyone is wailing for: He immediately permitted prosecutors to advance this long-thwarted investigation.

Based on what we can see, there were at least two limitations on the investigation, however. First, the warrants targeting Rudy did not include the Trump lawyer’s January 29, 2020 interview with Scott Brady. That suggests Rudy’s effort to share dirt from Russian spies was still protected as cooperation rather than confession, even after Garland took over (indeed, that’s what Rudy pointed to to argue he couldn’t be searched at all, his “cooperation” with Barr). Just as importantly, while some of the 2019 warrant affidavits mentioned Donald Trump’s call to Volodymyr Zelenskyy, the 2021 warrants did not. I would be unsurprised if Barr got OLC to write a memo putting all that off limits before they left office.

Aside from that, DOJ’s approach to Rudy Giuliani remained remarkably aggressive, contrary to what virtually every news outlet will tell you. Importantly, SDNY did something no one else has reported: They installed a Special Master and got permission to review Rudy’s content — all Rudy’s post-2017 content — for privilege. Among other things, that freed up content, including at least one document the January 6 Committee did not get, for any other investigations.

Nevertheless, the delay (or possibly corrupt Rudy dead-enders in NY) appears to have killed any chance of pursuing Rudy for his role in soliciting dirt from Russian spies and others to attack Hunter Biden. On November 14, 2022, SDNY informed the court that the grand jury had concluded without filing charges (though Rudy’s lawyer and Hunter Biden laptop co-conspirator, Robert Costello, has never substantiated a declination letter). In a July 25, 2023 declaration in the Ruby Freeman lawsuit, Costello revealed one potential explanation: many of the devices seized from Rudy obtained in April 2021 were corrupted. Costello blamed the FBI’s contractor for making the phones unusable.

Not all the devices were corrupted, however. As noted, the privilege log from Freeman’s case shows a great deal of files pertaining to January 6 were successfully extracted, including a few identifiable files not obtained by the January 6 Committee.

DOJ also seized a phone from Victoria Toensing. But the value of that may have been limited by attorney-client privileged tied to Firtash, the same privilege which has, at times, led Lev (because he was a translator in that relationship) to limit his own comments about Firtash in all this. To fully unpack what happened, you’d need to know what promises Toensing made to Firtash and what Barr knew about them.

Attorneys General have vast discretion

In a just world, Bill Barr could be held accountable for the corruption he enabled. But that’s virtually impossible under the structures of impunity our system accords prosecutors and Attorneys General.

I’m neck-deep in a post on the three IG investigations pertaining to Bill Barr’s corrupt conduct.

All of them conclude that however nuts Bill Barr’s conduct was, the expansive authority of the Attorney General means that his actions, including his intervention into the sentencing for Trump’s rat-fucker and his decision to share details of minor infraction by someone whom Barr knew would never be charged for political gain, were within the discretion of the Attorney General.

DOJ IG has spent over four years investigating Barr’s corruption, and thus far, they have always concluded that as Attorney General, Barr’s discretion was so vast that he can break all of DOJ’s rules prohibiting its politicization.

There’s still at least one IG Report including Barr’s conduct outstanding (almost certainly, the ongoing investigation into DOJ getting the communications records of journalists for whom people like Jim Comey might have been a source). But of all the fuckery I know Barr to have committed, I can envision only a few details of his conduct might even remotely end up the focus of criminal investigation.

Even the most corrupt insinuations about Rudy’s efforts, in which Rudy allegedly offered Ihor Kolomoyskyi, Dmitry Firtash, and Mykola Zlochevsky relief from criminal investigations for dirt on Hunter Biden, would be included in this.

Lev explains why in his book: This was deliberately framed as the exact equivalent of Andrew Weissmann’s efforts to flip Firtash for information on Paul Manafort.

Andrew Weissman, who was lead prosecutor for the investigation of Russian collusion in the 2016 Election, had gotten there first. He offered a deal in which Firtash could avoid prison if he testified about the relationship between Trump and Russian President Vladimir Putin. The inclusion of Putin meant that Firtash would never take the deal. Nobody over there wants to make Putin angry.

Nobody else knew about the deal he was offered. Giuliani and Solomon wanted Firtash’s legal team to make it public. His Viennese lawyers were against it, so Firtash was reluctant. Soon, in a heated meeting in Vienna, an argument between some of Firtash’s legal team led to Victoria Toensing, who was on our team, confronting Dan Webb about it months later. Webb — who was connected with Weissmann, William Barr and other heavy hitters — admitted to the deal.

Still, we convinced Firtash that we — who were representing Trump’s interests — could help him with his extradition far more effectively than Weissman. The real goal for us was to get Firtash to use his contacts to pressure President Zelenskyy to announce an investigation of the Bidens. Our pitch was successful, Firtash agreed to hire Giuliani for $1 million. And $200,000 for me to be official translator and to be under the attorney-client privilege umbrella.

Prosecutors trade leniency for information on other crooks all the time. Here, however, it was the Attorney General, who had never served as a prosecutor himself, who would be making those deals, offering leniency to foreign oligarchs if they could offer dirt on Donald Trump’s likely opponent.

It’s unclear whether, and if so what, deals were made: an investigation into Zlochevsky was reportedly shut down in December 2019; investigations into Kolomoyskyi ratcheted up in 2020; and the prior investigation into Dmitry Firtash remains deadlocked on his extradition, as it has been for years.

But these kinds of deals would be consistent with an elaborate effort Barr makes in his book to spin Trump’s pursuit of dirt on the Bidens as a legitimate law enforcement pursuit, the logic of Trump’s impeachment defense taken to its logical conclusion.

It’s all transparent bullshit. But it would also be virtually impossible to debunk at trial, even if you could get beyond the vast discretion of an Attorney General.

David Weiss’ appointment threatens to limit further fallout

There’s one thing I do fault Merrick Garland for: For not removing David Weiss from the investigation into Alexander Smirnov.

By all appearances, Weiss asked to be appointed Special Counsel only after he renewed his focus on Smirnov in July 2023, after receiving, but blowing off, the allegation days before the 2020 election, on October 23, 2020.

Investigating Smirnov’s allegation that Joe Biden accepted a bribe from Burisma was the first thing that focused the investigation onto Biden, after the original prosecutor, Lesley Wolf had successfully avoided that focus for years. It was the first thing that created a real conflict with working for Joe Biden.

And Weiss bases his authority to prosecute Smirnov for lying when he started chasing that hoax on his Special Counsel authority. He could only do so if he were legitimately chasing that hoax as witness testimony.

Here’s the problem with that: David Weiss is a witness in what should be a broader investigation into how a side channel set up by Bill Barr ended up discovering an informant who once met Mykola Zlochevsky and then not vetting the false claims he made. At the very least, there should be an investigation into who — everyone swears it was not Rudy, and Smirnov has at least three other links to people close to Trump — alerted Brady that Smirnov might offer up such claims.

Bill Barr’s deputy ordered David Weiss to accept briefing on this hoax. He ordered him to let Scott Brady snoop on Weiss’ investigation of Joe Biden’s kid. That makes Weiss a witness. Once Smirnov became a subject rather than a witness, that created a conflict that should disqualify Weiss from overseeing an investigation into the former informant and the circumstances that allowed him to make allegedly false allegations against Joe Biden.

Merrick Garland should (at a minimum, though I could argue more broadly) move the primary team prosecuting Smirnov under supervision without such conflicts. A system set up by Bill Barr criminally framed Joe Biden, and a guy who worked with Bill Barr on that case continues to supervise the aftermath.

The complicity of the press

There’s one more party that demands accountability: The press.

Much of what I wrote in this post is public. It requires diligent reading, but not great access to Donald Trump or anyone else.

Not only has this entire story not been reported by mainstream outlets. Not only did NYT affirmatively obscure Rudy’s role in all this (and therefore Trump’s) in their one attempt to cover it. But one after another journalist — especially at NYT — writes stories that disappear the Hunter Biden pursuit from all of Trump’s abuse of DOJ. Indeed, some outlets, including Rachel Maddow’s parent company, seem to treat Hunter Biden as a gossip rag to drive clicks, rather than the locus of unprecedented corruption. Rather than chasing this story, or even asking Bill Barr direct questions about it, one after another TV star invites him on as if he’s a critic of Trump’s corruption, rather than a key player in it. WaPo’s Will Lewis pointed to a badly conflicted Hunter Biden piece as his antidote against accusations of lefty bias.

Want to know how Rudy Giuliani was allowed to solicit dirt from Russian spies to help Trump get elected, without accountability? Want to know why Barr is considered a critic of Trump rather than his most corrupt enabler? Ask the journalists who lost interest in that story as soon as Rudy released a laptop full of Hunter Biden’s dick pics.

From Russia with Lev begins to reverse all that. But as infuriating as it is, it barely scratches the surface.

Timeline

Below, every bullet is a known warrant. The ones not linked were described in a passage that failed to be fully redacted in a Lev Parnas filing. This document compares the Foreign Agent focus of the three warrants bolded below.

  • January 18, 2019, 19 MJ 1729: Yahoo and Google content

May 15, 2019: Marie Yovanovitch firing public

  • May 16, 2019, 19 MJ 4784: iCloud content
  • August 14, 2019, 19 MJ 7593: Yahoo and Google content since January, with expanded focus
  • August 14, 2019, 19 MJ 7594: Unknown warrant
  • August 14, 2019, 19 MJ 7595: Existing Yahoo and Google content, with expanded focus

September 25, 2019: Disclosure of Perfect Phone call

October 9, 2019: Lev Parnas and Igor Fruman arrested

  • October 17, 2019, 19 MJ 7595: Actual authorization of the warrant approved in August
  • October 21, 2019, 19 MJ 9829: iCloud content since May
  • October 21, 2019, 19 MJ 9830: Unknown warrant
  • October 21, 2019, 19 MJ 9831: Devices from Dulles
  • October 21, 2019, 19 MJ 9832: Existing iCloud content for expanded focus
  • November 4, 2019: Warrant for Rudy’s iCloud
  • November 4, 2019: Warrant for Rudy’s email
  • November 4, 2019: Warrant for Victoria Toensing’s iCloud
  • November 6, 2019: Warrant for Yuriy Lutsenko’s email

December 5, 2019: Rudy meets with known Russian asset, Andrii Derkach

  • December 10, 2019, 19 MJ 11500: Stuff seized from residences for foreign agent focus
  • December 10, 2019, 19 MJ 11501: Instagram
  • December 10, 2019, Warrant for Roman Nasirov’s email
  • December 13, 2019, Warrant for Victoria Toensing’s email

December 14, 2019: Barr aide texts him: “Laptop on way to you”

January 3, 2020: Barr establishes dedicated channel to ingest Rudy’s dirt

January 17, 2020: Jeffrey Rosen makes Richard Donoghue a gatekeeper for all Ukraine-related investigations

  • February 28, 2020: iPhone of Alexander Levin
  • March 3, 2020: iPad of Alexander Levin
  • March 20, 2020, 20 MJ 3074: Fruman iCloud content obtained with October 21, 2019 warrant to cover earlier periods

June 20, 2020: Barr fires Geoffrey Berman

November 2020: SDNY denied authority to seek devices of Rudy Giuliani

January 2021: SDNY denied authority to seek devices of Rudy Giuliani

  • April 13, 2021: Cell site data for Rudy and Toensing

April 21, 2021: Lisa Monaco sworn in

  • April 21, 2021, 21 MJ 4335: Rudy’s office, residence, and devices
  • April 21, 2021: Victoria Toensing iPhone

DOJ IG Finds Bill Barr’s Personal Intervention in Roger Stone Sentencing “Highly Unusual” But Not Illegal

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DOJ IG has released their long-awaited report on Bill Barr’s intervention in the Roger Stone sentencing.

The takeaway conclusion is that Barr (who refused to cooperate, as did several others) did not intervene in response to Trump’s tweets that day. Based on newly installed Acting US Attorney Tim Shea’s intervention, he had already intervened. DOJ IG concluded that Barr’s intervention was highly unsual, but did not look bad.

We recognize that the Department’s handling of the sentencing in the Stone case was highly unusual, including its filing of a second sentencing memorandum and DOJ leadership’s personal involvement in the preparation of that second memorandum. Moreover, Shea’s and Barr’s participation in the Stone sentencing, given their status as Administration political appointees and Stone’s relationship with the then President, resulted in questions being asked and allegations being made about the Department’s decision making. However, absent a law, rule, regulation, or Department policy that prohibits their participation (none of which exist here), whether the U.S. Attorney and/or the Attorney General should personally participate in such a matter is ultimately left to their discretion and judgment, including their assessment of how such involvement will affect public perceptions of the federal justice system and the Department’s integrity, independence, and objectivity

The report concluded that Aaron Zelinsky did not intentionally lie when he claimed there was a great deal of pressure. His belief that that was the case was good faith.

I’ll have more later.

Imagine if Dana Bash Knew Trump Had Been President Before?

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After letting Donald Trump lie non-stop in the debate, Dana Bash invited his aspiring running-mate, Marco Rubio, onto her show to  tell the same lies.

Ostensibly, she was asking Rubio about whether the Supreme Court immunity decision violated Rubio’s own stated dodge on accountability for January 6: “let history, and if necessary, the courts judge the events of the past.”

But Rubio quickly took over the segment, spending 37 seconds, and then another 22 seconds, falsely claiming that Joe Biden’s Administration was using DOJ as a legal weapon against Donald Trump. Rubio claimed, “The evidence is in the headlines every day. Every you day you open up it’s another Republican going to jail somewhere.” Bash let Rubio drone on at length, before interrupting to state there’s no evidence that Biden is doing this.

Worse still was Bash’s failure to rebut Rubio’s lies about Donald Trump’s first term. Rubio claimed, “I can’t think of a single prominent Democrat who was chased around, persecuted, prosecuted.” He followed up, “He was President for four years, he didn’t go after Hillary Clinton, he didn’t go after Joe Biden, he didn’t go after Barack Obama, he didn’t go after any other consultants. We didn’t see under him what we’re seeing now.” In one uncomfortable moment, Rubio cited the debate at which Bash had let Trump lie over and over about his future plans to criminalize his opponents, as if it represented the truth. Rubio then stated again that Trump, “was President before and he didn’t do it then.”

Those are all lies.

Those are all lies that Bash has a responsibility to debunk.

After Trump demanded it, Hillary Clinton remained under investigation — based off Peter Schweizer’s political hit job, Clinton Cash — for the entirety of Trump’s term, with a declination memo issuing only in August 2021.

Career prosecutors in Little Rock then closed the case, notifying the F.B.I.’s office there in two letters in January 2021. But in a toxic atmosphere in which Mr. Trump had long accused the F.B.I. of bias, the top agent in Little Rock wanted it known that career prosecutors, not F.B.I. officials, were behind the decision.

In August 2021, the F.B.I. received what is known as a declination memo from prosecutors and as a result considered the matter closed.

“All of the evidence obtained during the course of this investigation has been returned or otherwise destroyed,” according to the F.B.I.

Rubio mentioned, “consultants.” After Trump demanded prosecutions from John Durham, Durham indicted DNC cybersecurity lawyer Michael Sussmann on flimsy charges. When Durham wildly misrepresented a report Sussmann made — showing the use of Yota phones inside Executive Office of the Presidency during the Obama Administration — Trump even issued suggested Sussmann should be put to death.

Yes, Sussmann was acquitted, but not before leaving his firm and spending untold legal fees to defend against a manufactured indictment and death threats from the former President.

Bash even seems ignorant of the first impeachment, in which Trump withheld funds appropriated to Ukraine in an attempt to extort the announcement of an investigation into Joe Biden and his kid.

On at least two more occasions, Donald Trump personally intervened into the criminal investigation of Joe Biden’s son. One was shortly after the NYPost unveiled material from a hard drive copy of a laptop attributed to Hunter Biden (as described in Bill Barr’s memoir), days before the 2020 election.

In mid-October I received a call from the President, which was the last time I spoke to him prior to the election. It was a very short con-versation. The call came soon after Rudy Giuliani succeeded in making public information about Hunter Biden’s laptop. I had walked over to my desk to take the call. These calls had become rare, so Will Levi stood nearby waiting expectantly to see what it was about. After brief pleasantry about his being out on the campaign trail, the President said, “You know this stuff from Hunter Biden’s laptop?”

I cut the President off sharply. “Mr. President, I can’t talk about that, and I am not going to.”

President Trump hesitated, then continued in a plaintive tone, “You know, if that was one of my kids—”

I cut him off again, raising my voice, “Dammit, Mr. President, I am not going to talk to you about Hunter Biden. Period!”

He was silent for a moment, then quickly got off the line.

I looked up at Will, whose eyes were as big as saucers. “You yelled at the President?” he asked, confirming the obvious. I nodded. He shook his head in disbelief.

Trump intervened again on December 27, 2020, when — during the conversation where Trump first threatened to replace Jeffrey Rosen if he didn’t back Trump’s false claims of election fraud — Trump also said, “people will criticize the DOJ if [Biden, to which Richard Donoghue added an “H” after the fact] not investigated for real.”

These non-public demands regarding the investigation into Hunter Biden accompanied public demands to “Lock him up!” Trump even raised Hunter Biden in between calls to march to the Capitol on January 6.

But Bash’s worst failures involve doing an interview with the Ranking Member of the Senate Intelligence Committee and not asking him about two investigations conducted under Bill Barr that implicate confirmed and suspected disinformation with Russian ties.

As part of Barr’s effort to investigate Hillary Clinton for calling out Donald Trump’s embrace of Vladimir Putin, for example, starting in 2020 (as Trump demanded results), the Attorney General and John Durham relied on materials obtained from Russia that the Intelligence Community considered likely disinformation, a claim that Hillary had made a decision to “to vilify Donald Trump by stirring up a scandal claiming interference by Russian security services.” As it is, there’s a dispute about the use of those materials, with John Brennan, claiming in his House deposition last May that this claim involved a misrepresentation of what happened.

Mr. Brennan. Not out of hand, but I think it was — a week or two prior to that, there was a selective release of information that included my briefing notes to President Obama in the White House Situation Room that was misrepresenting, in fact, the facts, where it was pushed out in redacted version. And I did think that was a very, very unfortunate, unprofessional, unethical engagement on the part of the Director of National Intelligence in a Presidential election.

Marco Rubio is one person who could weigh in this dispute.

But Durham didn’t stop there. He then fabricated a claim that wasn’t included in the suspected Russian disinformation: That Hillary planned to make false claims about Trump’s fondness for Russia.

First, the Clinton Plan intelligence itself and on its face arguably suggested that private actors affiliated with the Clinton campaign were seeking in 2016 to promote a false or exaggerated narrative to the public and to U.S. government agencies about Trump’s possible ties to Russia.

At a time when Trump was publicly demanding results from Durham, then, the Special Counsel made shit up, politicizing intelligence, in an attempt to find charges against Hillary Clinton.

Bash let Rubio claim it didn’t exist.

Then there’s the blockbuster of which political journalists like Bash (and her colleague, Kaitlan Collins) appear aggressively ignorant.

In January 2020 (this was in the same time period he and Durham were fabricating claims about Hillary Clinton), Bill Barr set up a side channel to ingest dirt from Rudy Giuliani, including some from known Russian spy Andrii Derkach. Via still unexplained means, that side channel discovered false claims made by FBI informant Alexander Smirnov, who has subsequently claimed to have extensive ties to Russian spies. Even though the claim was easily debunked, that dedicated side channel nevertheless failed to discover real problems with the fabricated claim that Joe Biden had been bribed by Mykola Zlockevsky. Indeed, days after Trump pressured Bill Barr about investigating Hunter Biden,  on October 23, 2020, Richard Donoghue ensured the fabricated claim would be assigned to David Weiss for further investigation.

Worse still, through the efforts of Republican congressmen and Bill Barr, that fabricated claim of a Joe Biden bribe appears to have played a key role in the collapse of Hunter Biden’s plea deal and subsequent felony conviction.

For the entirety of the time that these twin efforts to use suspected Russian disinformation to frame Hillary Clinton and Joe Biden, Marco Rubio has been either Chair or Ranking Member of the Senate Intelligence Committee — one of the few people who can demand answers when the nation’s intelligence and counterintelligence system is so badly abused that Donald Trump’s political enemies can be framed, potentially in cahoots with Russian spies.

And Dana Bash had Marco Rubio sitting right there, in a position where she, in turn, could demand answers.

Instead, she let him lie and lie and lie about Trump’s past efforts to criminalize his political rivals.

Hunter Biden is on his way to prison in significant part because of Trump’s success at criminally targeting his political enemies. And Dana Bash never told viewers that Trump already has a documented record of doing just that.