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Democrats Are Setting Themselves Up to Fail on Mueller Hearings

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In a House Judiciary Committee hearing about the most controversial topic of the day 12 years ago, Robert Mueller provided testimony that sharply contradicted the sworn testimony of the Attorney General. He confirmed that the March 10, 2004 hospital confrontation between Jim Comey and the White House concerned a disagreement about the legality of the Stellar Wind warrantless wiretapping program, contrary to the earlier claims of Alberto Gonzales.

“I had an understanding that the discussion was on a N.S.A. program,” Mr. Mueller said in answer to a question from Representative Sheila Jackson Lee, Democrat of Texas, in a hearing before the House Judiciary Committee.

Asked whether he was referring to the Terrorist Surveillance Program, or T.S.P., he replied, “The discussion was on a national N.S.A. program that has been much discussed, yes.”

Mr. Mueller said he had taken notes of some of his conversations about the issue, and after the hearing the committee asked him to produce them.

[snip]

In a four-hour appearance before the Senate Judiciary Committee on Tuesday, Mr. Gonzales denied that the dispute arose over the Terrorist Surveillance Program, whose existence was confirmed by President Bush in December 2005 after it had been disclosed by The New York Times. Mr. Gonzales said it centered on “other intelligence activities.”

That event, like Russian investigation, involved a constitutional crisis and uncertain matters of law. It involved issues made more controversial by Jim Comey’s at times imperfect efforts to uphold principle. Mueller’s testimony specifically confirmed suspicions about the deceit and criminal exposure of the Attorney General, possibly contributing to his resignation a month later.

Sheila Jackson Lee — who remains on HJC — asked the question, and Mueller answered truthfully, and then provided evidence to back up his testimony.

And yet, even after studying Mueller’s past testimony to Congress (presumably including that hearing), House Democrats have themselves convinced that Mueller won’t be all that forthcoming in his hearing next week.

“I don’t think Mr. Mueller, based on everything I know about him, that anyone should expect any major departure from the contents of the report,” said Rep. David Cicilline, a Rhode Island Democrat on the Judiciary Committee. “I do think the contents of the report are so significant and so damning that when Mr. Mueller brings them to life and actually tells the American people … it will have an impact.”

The committees recognize that Mueller is a reluctant witness, and has stated he does not intend to answer questions beyond the contents of his report. The committee aides said they planned to respect Mueller’s desires but noted Congress isn’t bound by such limits. The aides anticipate questions will go beyond what’s written in the report, such as asking Mueller whether certain episodes detailed would have been crimes had they not involved the President — after Mueller said that his office followed Justice Department legal opinion that a sitting president cannot be indicted.

[snip]

Mueller’s long government career has given the two committees plenty of material to study from Mueller’s past congressional appearances. The bottom line is they don’t expect Mueller to readily volunteer information, aides say, particularly given that he doesn’t want to testify before Congress.

As Jackson Lee demonstrated years ago, a properly phrased question will elicit an honest answer from Mueller.

But that’s not my main complaint about the reported preparations for Mueller’s testimony next week: it’s that Democrats have locked themselves into a division of labor — with HJC focusing on the evidence showing Trump obstructed justice and the House Intelligence Committee focusing on details of Trump’s enthusiasm for the Russian attack — that leaves out the larger framework of the investigation (and aftermath), may not touch on the area that, given the focus of his press conference, Mueller’s likely to be most forthcoming about (the extent of the Russian operation), and threatens to make a weaker case for both obstruction and “collusion.”

I hope to finally write my narratology of the Mueller Report to lay out the latter point. My questions for Mueller (which I’ll update before next Wednesday) include some that — like the Jackson Lee question twelve years ago — are factual questions that may do more to illuminate the actions of others than questions designed solely to get Mueller to recapitulate what’s already in the report.

But one of the biggest reasons I’m concerned about this approach is that Democrats are adopting a structure Mueller did –separating Trump associates’ efforts to obstruct an investigation into a possible conspiracy from Trump’s own efforts to obstruct an investigation into a conspiracy — that serves to water down the impact of the report.

This report was not, as most people commenting on it seem to believe, a report “of what Mueller found.” Rather, it is strictly limited to prosecutorial decisions, and as such doesn’t include evidence Mueller obtained that’s not important to explain why he chose to charge people or not.

His report produced the following prosecutorial decisions: 

As noted with the shading the break between Volume I and Volume II is not actually a break between the conspiracy investigation (Russia’s interference in the election and Trump Associates’ ties with Russia) and the obstruction investigation (matters arising from the investigation). Prosecutorial decisions relating to the cover-up appear in both Volume I and Volume II. It’s unclear why Mueller organized it like that (this would actually be an interesting question); perhaps he did it because he didn’t reach a prosecutorial decision about Trump or perhaps because he wanted to provide an impeachment referral for Congress.

But the effect of the organization is that it severs the discussion of the suspicious actions from the efforts to cover up those actions.

To illustrate why this is important, consider the June 9 meeting. The actual events behind that are:

  • Don Jr willingly accepted dirt on Hillary offered as part of the Russian government’s support for Trump
  • According to two witnesses, Trump probably knew about the meeting ahead of time (but did not plan a speech around it, as some suspected)
  • Don Jr and Emin Agalarov had several conversations about what the meeting would be
  • At the meeting, Don Jr agreed to consider sanctions relief even after he grew fed up that the dirt wasn’t very interesting
  • When the Trump team identified this meeting as an area of focus for Congressional and other investigations, Trump repeatedly responded in a way that — according to Hope Hicks — was totally uncharacteristic; either he or she also considered withholding the evidence from investigators
  • Trump personally issued a blatantly misleading statement on the meeting (after talking with Putin about that cover story, though that detail doesn’t show up in the report, which is another thing worth asking about)
  • Although he willingly sat for interviews with three Congressional committees — even after the report came out — Don Jr refused to appear before the grand jury
  • Emin Agalarov canceled an entire concert tour to avoid being questioned about the meeting or — more importantly — what he told Don Jr on those phone calls

From the point of view of the crime of obstruction of justice, the June 9 meeting is the weakest case, in part because Don Jr avoided getting caught in a lie about it (and so was not charged in parallel with Flynn and Stone). Given their focus on treating Volume II as an obstruction of justice impeachment referral rather than the complete cover-up, HJC is not treating this incident. But it’s one of the most damning examples showing that Trump and his family acted to accept Russian help.

And consider how Manafort’s sharing of polling data will get watered down with this approach to questioning. One of the most obvious ways to illustrate the impact of Trump’s obstruction is to lay out that Mueller was never able to establish why Manafort was trading Ukraine away at a meeting where he also discussed how to win MI and WI. It looks like a smoking gun, but Mueller was never able to fully investigate it (Manafort’s use of encryption helped things along here, too). And one key reason why he was never able to investigate it is because Manafort believed Trump would pardon him if he lied, and he did lie.

Note, too, that while Mueller notes that Manafort lied in footnotes, unless he’s the redacted person who lied to the grand jury in the prosecutions section, Mueller did not describe his prosecutorial decision not to charge Manafort for lying to the grand jury in that section.

As laid out (according to these reports), HPSCI is going to investigate the equivalent of the Watergate burglary, while HJC will investigate the cover-up of the burglary. Worse, HJC will go first, so it’s not like people watching the entire day will have been reminded about the burglary before HJC delves into the cover-up of it.

In other words, dividing the questioning the way reports say the committees will separates a discussion of the cover-up from the actions Trump covered up. That, in turn, makes it a lot harder to show that one reason Mueller didn’t collect enough evidence to charge a conspiracy is because of that cover up.

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

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

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

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

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

The Scope and Results of the Mueller Report

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There’s a Twitter account, TrumpHop, that tweets out Donald Trump’s tweets from years earlier, which is a really disorienting way to remind yourself how crazy he’s been since he’s been on Twitter. This morning, it recalled that two years ago today, Trump was inventing excuses for having shared highly classified Israeli intelligence at the same meeting where he boasted to Sergei Lavrov that he fired Jim Comey a week earlier because of the Russian investigation.

Two years ago, Rod Rosenstein — the same guy who stood, mostly stoically, as a prop for Bill Barr’s deceitful press conference spinning the Mueller Report one last time before releasing it — was in a panic, trying to decide what to do about a President who had fired the FBI Director to end an investigation into what might be real counterintelligence compromise on his part by a hostile foreign country and then went on to share intelligence with that same hostile foreign country. Tomorrow is the two year anniversary of Mueller’s appointment.

As I noted days after the Mueller Report was released, it is utterly silent on that sharing of information and two of the other most alarming incidents between Trump and Russia (though that may be for sound constitutional, rather than scope reasons) — Trump’s conversation with Putin about the subject of his own June 9 false statement even as he was drafting that statement, and the Helsinki meeting. That said, it cannot be true that Mueller didn’t consider those counterintelligence issues, because his treatment of Mike Flynn would have been far different if he didn’t have good reason to be sure — even if he deliberately obscures the reasons why he’s sure in the report — that Flynn, at the time under active counterintelligence investigation for his suspect ties to Russia, wasn’t entirely freelancing when he undermined US policy to offer sanctions considerations to Russia on December 29, 2016.

Nevertheless, a rising cry of people are suggesting that because we weren’t told the results of the counterintelligence investigation (whether it included the President or, because of constitutional reasons, did not), Mueller did not conduct a counterintelligence investigation. He (and, especially, FBI Agents working alongside him) did. Here’s what the report says, specifically, about the FBI writing up CI and Foreign Intelligence reports to share with the rest of FBI.

From its inception, the Office recognized that its investigation could identify foreign intelligence and counterintelligence information relevant to the FBI’s broader national security mission. FBI personnel who assisted the Office established procedures to identify and convey such information to the FBI. The FBI’s Counterintelligence Division met with the Office regularly for that purpose for most of the Office’s tenure. For more than the past year, the FBI also embedded personnel at the Office who did not work on the Special Counsel’s investigation, but whose purpose was to review the results of the investigation and to send-in writing-summaries of foreign intelligence and counterintelligence information to FBIHQ and FBI Field Offices. Those communications and other correspondence between the Office and the FBI contain information derived from the investigation, not all of which is contained in this Volume. This Volume is a summary. It contains, in the Office’s judgment, that information necessary to account for the Special Counsel’s prosecution and declination decisions and to describe the investigation’s main factual results.

Mueller didn’t report on it, as he states explicitly, because that’s outside the scope of what he was required and permitted to report under the regulations governing his appointment, which call for a prosecutions and declinations report.

That’s just one of the misconceptions of the scope, intent, and results of the Mueller Report that persists (and not just among the denialist crowd), almost a month after its release.

The Mueller Report does not purport to tell us what happened — that would be a violation of the regulations establishing the Special Counsel. It only describes the prosecutorial and declination decisions. The scope of those decisions includes:

  • Who criminally conspired in two Russian election interference efforts (just one American was charged, but he did not know he was helping Russians troll the US)
  • Whether Trump’s associates were agents of a foreign power in violation of FARA or 18 USC 951, including whether they were agents of Ukraine (as Paul Manafort and Rick Gates were before the election), Israel (as lots of evidence suggested George Papadopoulos might have been), Turkey (as Mike Flynn admitted he had been during and for a short while after the election), as well as Russia
  • Whether Trump’s associates conspired with Russia in some way; Mueller’s review included a quid pro quo, but his prosecutorial decisions did not include things unrelated to Russia’s election interference (which might, for example, include pure graft, including during the Transition period or related to the inauguration)
  • Which of Trump’s associates got charged with lying (Flynn, Papadopoulos, Michael Cohen, Roger Stone), were ruled by a judge to have lied (Paul Manafort), and which lied but were not charged (at least three others, including KT McFarland) in an effort to obstruct the investigation
  • Whether accepting a meeting offering dirt as part of the Russian government’s assistance to Trump or optimizing WikiLeaks’ release of emails stolen by Russia to help Trump’s campaign amount to accepting illegal donations from foreigners
  • Whether Trump’s numerous efforts to undermine the investigation amount to obstruction

Two facts necessarily follow from Mueller’s limit in his report to prosecutorial decisions rather than describing what happened, both of which are explained on page 2 of the report (though even the Attorney General, to say nothing of the denialist crowd, appears not to have read that far). First, Mueller did not weigh whether Trump “colluded” with Russia, because that’s not a crime that could be prosecuted or declined.

In evaluating whether evidence about collective action of multiple individuals constituted a crime, we applied the framework of conspiracy law, not the concept of “collusion.” In so doing, the Office recognized that the word “collud[e]” was used in communications with the Acting Attorney General confirming certain aspects of the investigation’s scope and that the term has frequently been invoked in public reporting about the investigation. But collusion is not a specific offense or theory of liability found in the United States Code, nor is it a term of art in federal criminal law.

Because “collusion” is not a crime, Mueller could not weigh in one way or another without being in violation of the regulations underlying his appointment. Mind you, Bill Barr could have changed these reporting requirements if he wanted and asked Mueller to comment on “collusion.” He did not.

In addition, Mueller’s measure was always whether his investigation “established” one or another crime. But stating that he did not establish a crime is not the same as saying there was no evidence of that crime.

A statement that the investigation did not establish particular facts does not mean there was no evidence of those facts.

Mueller describes in very general way that he didn’t get all the information he’d have liked to weigh whether or not conspiracy was committed.

The investigation did not always yield admissible information or testimony, or a complete picture of the activities undertaken by subjects of the investigation. 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. The Office limited its pursuit of other witnesses and information–such as information known to attorneys or individuals claiming to be members of the media–in light of internal Department of Justice policies. See, e.g. , Justice Manual §§ 9-13.400, 13.410. Some of the information obtained via court process, moreover, was presumptively covered by legal privilege and was screened from investigators by a filter (or “taint”) team. Even when individuals testified or agreed to be interviewed, they sometimes provided information that was false or incomplete, leading to some of the false-statements charges described above. And the Office faced practical limits on its ability to access relevant evidence as well-numerous witnesses and subjects lived abroad, and documents were held outside the United States.

Further, the Office learned that some of the individuals we interviewed or whose conduct we investigated–including some associated with the Trump Campaign—deleted relevant communications or communicated during the relevant period using applications that feature encryption or that do not provide for long-term retention of data or communications records. In such cases, the Office was not able to corroborate witness statements through comparison to contemporaneous communications or fully question witnesses about statements that appeared inconsistent with other known facts.

More specifically, we know this language covers at least the following limits on the investigation:

  • Encryption or evidence destruction prevented Mueller from clarifying details of the handoff to WikiLeaks, Gates’ sharing (on Manafort’s orders) of polling data with Russia, Manafort’s communications with various people, and Erik Prince and Steve Bannon’s communications about the Seychelles meeting with Kirill Dmitriev
  • Mueller did not pursue the role of Trump and other associates’ lawyers’ substantial, known role in obstruction
  • Mueller likely did not pursue an interview with Julian Assange (and other media figures), because that would violate US Attorney Handbook warnings against compelling the sharing of journalism work product to investigate a crime related to that work product
  • Some foreigners avoided cooperating with the investigation by staying out of the country; Emin Agalarov canceled an entire US tour to avoid testifying about what kind of dirt he offered Don Jr
  • Both Donald Trumps refused to be interviewed
  • President Trump refused to answer all questions pertaining to his actions after inauguration, all but one question about the Transition, and all questions about sanctions; his other answers were largely contemptuous and in a number of cases conflict with his own public statements or the testimony of his associates

Finally a more subtle point about the results, which will set up my next post. Mueller clearly states that he did not establish a conspiracy between Trump’s people and the Russian government on election interference. By definition, that excludes whatever coordination Roger Stone had with WikiLeaks (and even with the extensive redactions, it’s clear Mueller had real First Amendment concerns with charging that coordination). But whereas Mueller said that the contacts between Trump’s associates and Russians did not amount to a crime, he suggested that the two campaign finance issues he explored — the June 9 meeting and the release of stolen emails — were crimes but not ones he could sustain a conviction for.

The Office similarly determined that the contacts between Campaign officials and Russia-linked individuals either did not involve the commission of a federal crime or, in the case of campaign-finance offenses, that our evidence was not sufficient to obtain and sustain a criminal conviction.

The gaps in evidence that Mueller was able to collect strongly impact this last judgment: as he laid out, he needed to know what Don Jr understood when he accepted the June 9 meeting, and without interviewing either Emin Agalarov and/or Jr, he couldn’t get at Jr’s understanding of the dirt offered.

As I’ve noted repeatedly, it is absolutely false to claim –as Attorney General Barr did — that Mueller’s report says there was no underlying crime to cover up with Trump’s obstruction. Mueller specifically mentions SDNY’s prosecution of Trump’s hush payments to Stormy Daniels and Karen McDougal, a crime which was charged, and which was one of the explicit purposes behind the raid on Cohen’s home and office. And as such, that crime is pertinent to the pardon dangle for Cohen.

In January 2018, the media reported that Cohen had arranged a $130,000 payment during the campaign to prevent a woman from publicly discussing an alleged sexual encounter she had with the President before he ran for office.1007 This Office did not investigate Cohen’s campaign period payments to women. 1008 However, those events, as described here, are potentially relevant to the President’s and his personal counsel’s interactions with Cohen as a witness who later began to cooperate with the government.

But with regards to the Russian-related campaign finance investigation, Mueller describes that Trump may have believed those would be criminal.

[T]he evidence does indicate that a thorough FBI investigation would uncover facts about the campaign and the President personally that the President could have understood to be crimes or that would give rise to personal and political concerns.

The distinction about whether a crime was committed versus whether it was charged may be subtle. But it is an important one for the obstruction investigation. And as I’ll show, that may have interesting repercussions going forward.

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

On Narrating Donald Trump: “Shoot me like I’m shot on ‘The Apprentice'”

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Pretty much everyone I know is recommending this New Yorker profile describing how Mark Burnett created Donald Trump’s current image (and with it his electoral prospects).

Along with describing how both Trump and Burnett came to turn the popularity of the show into a marketing vehicle and a Trump’s telling claim that he initially hesitated before signing onto reality teevee because the, “contractors, politicians, mobsters, and everyone else I have to deal with in my business … don’t like, as they’re talking to me, having cameras all over the room,” the piece describes how the show depicted not reality, but a heavily edited narrative trying to retroactively justify Trump’s capricious firing decisions each week.

The result created the illusion that a serially bankrupt joker was, instead, a king.

Burnett has often boasted that, for each televised hour of “The Apprentice,” his crews shot as many as three hundred hours of footage. The real alchemy of reality television is the editing—sifting through a compost heap of clips and piecing together an absorbing story. Jonathon Braun, an editor who started working with Burnett on “Survivor” and then worked on the first six seasons of “The Apprentice,” told me, “You don’t make anything up. But you accentuate things that you see as themes.” He readily conceded how distorting this process can be. Much of reality TV consists of reaction shots: one participant says something outrageous, and the camera cuts away to another participant rolling her eyes. Often, Braun said, editors lift an eye roll from an entirely different part of the conversation.

At the end of each episode, Trump determined which competitor should be “fired.” But, as Braun explained, Trump was frequently unprepared for these sessions, with little grasp of who had performed well. Sometimes a candidate distinguished herself during the contest only to get fired, on a whim, by Trump. When this happened, Braun said, the editors were often obliged to “reverse engineer” the episode, scouring hundreds of hours of footage to emphasize the few moments when the exemplary candidate might have slipped up, in an attempt to assemble an artificial version of history in which Trump’s shoot-from-the-hip decision made sense. During the making of “The Apprentice,” Burnett conceded that the stories were constructed in this way, saying, “We know each week who has been fired, and, therefore, you’re editing in reverse.” Braun noted that President Trump’s staff seems to have been similarly forced to learn the art of retroactive narrative construction, adding, “I find it strangely validating to hear that they’re doing the same thing in the White House.”

Such sleight of hand is the industry standard in reality television. But the entire premise of “The Apprentice” was also something of a con. When Trump and Burnett told the story of their partnership, both suggested that Trump was initially wary of committing to a TV show, because he was so busy running his flourishing real-estate empire. During a 2004 panel at the Museum of Television and Radio, in Los Angeles, Trump claimed that “every network” had tried to get him to do a reality show, but he wasn’t interested: “I don’t want to have cameras all over my office, dealing with contractors, politicians, mobsters, and everyone else I have to deal with in my business. You know, mobsters don’t like, as they’re talking to me, having cameras all over the room. It would play well on television, but it doesn’t play well with them.”

“The Apprentice” portrayed Trump not as a skeezy hustler who huddles with local mobsters but as a plutocrat with impeccable business instincts and unparalleled wealth—a titan who always seemed to be climbing out of helicopters or into limousines. “Most of us knew he was a fake,” Braun told me. “He had just gone through I don’t know how many bankruptcies. But we made him out to be the most important person in the world. It was like making the court jester the king.” Bill Pruitt, another producer, recalled, “We walked through the offices and saw chipped furniture. We saw a crumbling empire at every turn. Our job was to make it seem otherwise.”

[snip]

Trump took to his part more nimbly than anyone might have predicted. He wouldn’t read a script—he stumbled over the words and got the enunciation all wrong. But off the cuff he delivered the kind of zesty banter that is the lifeblood of reality television. He barked at one contestant, “Sam, you’re sort of a disaster. Don’t take offense, but everyone hates you.” Katherine Walker told me that producers often struggled to make Trump seem coherent, editing out garbled syntax and malapropisms. “We cleaned it up so that he was his best self,” she said, adding, “I’m sure Donald thinks that he was never edited.” [my emphasis]

Throughout, the piece both implicitly and explicitly suggests that the White House is adopting techniques from the show in burnishing Trump’s power. Or, at least, Trump is asking that his handlers replicate the same frames of power that Burnett used.

The show’s camera operators often shot Trump from low angles, as you would a basketball pro, or Mt. Rushmore. Trump loomed over the viewer, his face in a jowly glower, his hair darker than it is now, the metallic auburn of a new penny. (“Apprentice” employees were instructed not to fiddle with Trump’s hair, which he dyed and styled himself.) Trump’s entrances were choreographed for maximum impact, and often set to a moody accompaniment of synthesized drums and cymbals. The “boardroom”—a stage set where Trump determined which candidate should be fired—had the menacing gloom of a “Godfather” movie. In one scene, Trump ushered contestants through his rococo Trump Tower aerie, and said, “I show this apartment to very few people. Presidents. Kings.” In the tabloid ecosystem in which he had long languished, Trump was always Donald, or the Donald. On “The Apprentice,” he finally became Mr. Trump.

[snip]

Trump has succeeded in politics, in part, by borrowing the tropes of the show. Jonathon Braun pointed out to me that when Trump announced his candidacy, in 2015, he did so in the atrium of Trump Tower, and made his entrance by descending the gold-colored escalator—choreography that Burnett and his team had repeatedly used on the show. After Trump’s announcement, reports suggested that people who had filled the space and cheered during his speech had been hired to do so, like TV extras, for a day rate of fifty dollars. Earlier this year, the White House started issuing brief video monologues from the President that strongly evoke his appearances on Burnett’s show. Justin McConney, a former director of new media for the Trump Organization, told New York that, whenever Trump works with camera people, he instructs them, “Shoot me like I’m shot on ‘The Apprentice.’ ” [my emphasis]

One of the most interesting details in the piece is that Democrats actively (and successfully) lobbied musical talent to blow off Trump’s inauguration, themselves performing a kind of script-writing that has haunted Trump since.

A Democratic political operative who was involved in a back-channel campaign to dissuade big-name stars from appearing at the event told me that Burnett had tried to enlist musicians to perform. “Mark was somebody we were actively working against,” the operative said. Trump’s wish list included Elton John, Aretha Franklin, and Paul Anka—who, he hoped, would sing “My Way”—but they all claimed to be otherwise engaged. The event ended up with sparse crowds and a feeble roster of performers.

Because I dawdled before reading the piece, I was reading it at the same time as reading coverage of the shutdown. That coverage highlights the results of running a Reality Teevee star as President. There’s NYT report that the reason why Trump has shut down the government to get Congress to fund him a wall is because Sam Nunberg and Roger Stone (and Steve Bannon) used the wall as a mnemonic device to get Trump to repeat his lines.

“How do we get him to continue to talk about immigration?” Sam Nunberg, one of Mr. Trump’s early political advisers, recalled telling Roger J. Stone Jr., another adviser. “We’re going to get him to talk about he’s going to build a wall.”

[snip]

“As a messaging strategy, it was pretty successful,” [anti-immigration activist Mark] Krikorian said. “The problem is, you got elected; now what do you do? Having made it his signature issue, Trump handed the Democrats a weapon against him.”

We’ve shut down the entire government because an entertainment professional always refused to memorize his lines (or as someone on Twitter noted, use a teleprompter), and so the unstable hacks who managed him early on invented a policy promise that not even hardline anti-immigration experts want.

And Trump seems to be judging the advice on the shutdown he receives based on how sycophantically his interlocutors judge his “performance” trying to ratchet up pressure for a wall.

Trump spent much of Saturday on the phone with allies, talking through his positioning on the shutdown and hearing their reviews of his Rose Garden performance, according to a person close to him. Two people regularly on his call list — Rep. Mark Meadows (R-N.C.) and Sen. Lindsey O. Graham (R-S.C.) — have encouraged Trump to take a hard line and refuse to agree to reopen the government unless wall funding is secured, the person said.

Trump, who doesn’t understand the successful tycoon that starred in The Apprentice was the product of heavy editing, has now taken to editing himself, trying to fulfill the things the Campaign Reality Teevee star said over and over, based off what Mark Meadows and Lindsey Graham  tell him.

The New Yorker profile, however, offers scant solutions to the problem that Burnett created — just his ex-wife imploring him to tell Trump he’s not actually living a reality show, as if that will fix the problem.

One day this past fall, Burnett got a call from his first wife, Kym Gold, with whom he remains friendly. Gold was upset about what was happening in the country, and asked Burnett to intervene with Trump. “We had it out,” she told me. “I said, ‘You’ve got to help our children, for the future and safety of this country.’ ” Gold implored Burnett, “Tell him this is not a reality show. This is real life. You’re the President. You’re saying things you cannot say—to reporters, to other world leaders.”

But that wouldn’t fix it even if Burnett were willing to risk losing access to Trump by telling him.

The problem, and any potential solutions, is something I’ve been thinking about for some time. No one is going to cure Trump of his addiction to being framed to look powerful. If he doesn’t get that high from his White House handlers, he will continue to fire them and look elsewhere, to people who are even better trained at flattery than Burnett. Trump now believes he can produce himself, based largely on the feedback of nutjobs like Ann Coulter and Sean Hannity.

I’m not actually advocating letting Trump frame himself as a king. But I also think that much of Democrats’ response involves trying to fact check Trump rather than reframe him. Your typical Trump voter isn’t going to give a damn that Trump is lying until some policy he has bragged about (up to and including the shutdown, but also his trade wars) ends up making them feel personally betrayed.

Mind you, I think Nancy Pelosi understands all this. She understands (like that other great female politician, Angela Merkel) that Trump will lose more if he is shown looking weak next to a woman than if someone proves his 100,000th lie.

That last of the self-imagined productive sycophants left with John Kelly. Trump now has a temporary Chief of Staff, one who will be gone once Trump decides to internalize Mick Mulvaney’s labeling of Trump’s position on the wall as “childish.” That creates a vacuum in the function of framing Trump’s image.

Update, January 12: This important op-ed from an OLC veteran describes how lawyers there do much the same as what editors on The Apprentice does.

But when I was at OLC, I saw again and again how the decision to trust the president failed the office’s attorneys, the Justice Department and the American people. The failure took different forms. Sometimes, we just wouldn’t look that closely at the claims the president was making about the state of the world. When we did look closely, we could give only nudges. For example, if I identified a claim by the president that was provably false, I would ask the White House to supply a fig leaf of supporting evidence. Or if the White House’s justification for taking an action reeked of unconstitutional animus, I would suggest a less pungent framing or better tailoring of the actions described in the order.

I often wondered, though, whether my attempts to remove the most basic inaccuracies from the face of a presidential order meant that I was myself failing to carry out my oath to protect and defend the Constitution. After all, the president had already submitted, through his early drafts or via Twitter, his reasons for issuing a particular order. I sometimes felt that, rather than engaging in professionally responsible advocacy, my OLC colleagues and I were using the law to legitimize lies.

I felt more than a twinge of recognition this month when reading a New Yorker article about Trump and the reality-TV show “The Apprentice.” Jonathan Braun, an editor on “The Apprentice,” described how editors would “reverse engineer” episodes after Trump made impulsive decisions about firing a contestant. The article described editors “scouring hundreds of hours of footage . . . in an attempt to assemble an artificial version of history in which Trump’s shoot-from-the-hip decision made sense.” Like a staff member at “The Apprentice,” I occasionally caught myself fashioning a pretext, building an alibi.

The Quid Pro Quo Was Even Tighter Than I Imagined

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Way back in May, I did a six part series on what the questions (as imagined by Jay Sekulow) that Mueller wanted to ask to Trump said about his investigation.

Part One: The Mueller Questions Map Out Cultivation, a Quid Pro Quo, and a Cover-Up

Part Two: The Quid Pro Quo: a Putin Meeting and Election Assistance, in Exchange for Sanctions Relief

Part Three: The Quo: Policy and Real Estate Payoffs to Russia

Part Four: The Quest: Trump Learns of the Investigation

Part Five: Attempting a Cover-Up by Firing Comey

Part Six: Trump Exacerbates His Woes

I gotta say, I’m quite proud of the way the series has held up: while there’s a bunch I’d add to the series if I rewrote it today, there’s little that I’d retract.

And from the very start, I argued that the election conspiracy involves a quid pro quo. The second post described how, “over the course of the election, the Russians and Trump appear to have danced towards a quid pro quo, involving a Putin meeting and election assistance in exchange for sanctions relief if Trump won (as noted, the Russians dangled real estate deals to entice Trump based on the assumption he wouldn’t win).”

I still stand by the series, but recent developments in the case make it clear the quid pro quo is even tighter than I thought because of the way the Trump Tower Moscow dangle, which we now know was the payoff that required a meeting with Putin, hung over it all.

Consider this passage in the Mueller Cohen sentencing memo.

The defendant’s false statements obscured the fact that the Moscow Project was a lucrative business opportunity that sought, and likely required, the assistance of the Russian government. If the project was completed, the Company could have received hundreds of millions of dollars from Russian sources in licensing fees and other revenues. The fact that Cohen continued to work on the project and discuss it with Individual 1 well into the campaign was material to the ongoing congressional and SCO investigations, particularly because it occurred at a time of sustained efforts by the Russian government to interfere with the U.S. presidential election. Similarly, it was material that Cohen, during the campaign, had a substantive telephone call about the project with an assistant to the press secretary for the President of Russia.

Cohen’s lies, aside from attempting to short circuit the parallel Russian investigations, hid the following facts:

  • Trump Organization stood to earn “hundreds of millions of dollars from Russian sources” if the Trump Tower deal went through.
  • Cohen’s work on the deal continued “well into the campaign” even as the Russian government made “sustained efforts … to interfere in the U.S. presidential election.”
  • The project “likely required[] the assistance of the Russian government.”
  • “Cohen [during May 2016] had a substantive telephone call about the project with an assistant to the press secretary for the President of Russia [Dmitri Peskov].”

Now consider the line Rob Goldstone used to entice Don Jr into taking a meeting — a meeting that, Rudy Giuliani says Paul Manafort says prosecutors know Trump knew about — to hear about dirt on Hillary Clinton.

Less than three years after Trump’s ability to get a meeting with Putin during the Miss Universe contest had been portrayed, by Goldstone himself, as entirely reliant on the efforts of Aras Agalarov, Goldstone packaged this meeting as “part of  Russia and its government’s support for Mr. Trump.”

And while Goldstone testified that he didn’t mean anything specific about that phrase, he also testified that among the bare facts that Emin wanted conveyed in that message is that this meeting would benefit the Trumps — not the campaign, but the Trumps.

Q. — you talked about with my colleague, I know we have asked you a lot of questions. I just want to have you explain. When you say there — you wrote the statement “based on the bare facts I was given,” exactly what were the bare facts that you were given?

A. So, to the best of my recollection, when I spoke to Emin, he said to me: I would like you to set up a meeting. A Russian attorney met with my — a well-connected Russian attorney met with my dad in his office, and she appears to have or seems to have damaging information on the Democrats and its candidate, Hillary Clinton. And I think it could be useful to the Trumps.

He talked about the Trumps rather than the campaign. And he would like us to get a meeting. To me, that was it. That’s when I started pushing for more information. But those would be the bare facts: attorney, damaging information, Democrats, Hillary Clinton. [my emphasis]

Goldstone was just a go-between in efforts, going back to 2013 and involving Dmitri Peskov, to set up a meeting between Trump and Putin. And Emin was clearly not sharing everything with Goldstone. But Emin was more centrally involved, even in 2013, and (his comments to Goldstone make clear) remained so in 2016 and 2017. So Emin’s emphasis on the benefit for Trump is striking.

And whether or not that language about “part of Russia and its government’s support for Mr. Trump” was as innocent as Goldstone makes out, in context, it would have clear meaning for Don Jr, whom we know Cohen kept apprised of the efforts to renew the Trump Tower Moscow deal. The Trumps were monetizing this running-for-President thing, and they were happy to make campaign promises to Russians bearing dirt, because the point wasn’t to actually win the election. It was about the hundreds of millions they stood to gain.

And the very day of that June 9 meeting, Michael Cohen started making his travel plans to go meet top Russian officials in St. Petersburg, possibly even Putin himself, plans that were only scuttled when the Russian hack of the DNC got exposed.

Consider one more detail about this quid pro quo. We’ve already seen how broke Trump’s working for “free” campaign manager, Paul Manafort, was at the time (though yesterday’s Manafort filing makes it clear that Tom Barrack had a much bigger role in this than previously known, and may have been — may even still be! — the one paying Manafort’s bills). The SDNY Cohen filing describes why he had to use a HELOC to pay off Trump’s former sex partners.

In December 2015, Cohen contacted a bank (“Bank-3”) to apply for a home equity line of credit (“HELOC”). In his application for the HELOC, Cohen made false statements about his net worth and monthly expenses. Specifically, Cohen failed to disclose more than $20 million in debt he owed to another bank (“Bank-2”), and also materially understated his monthly expenses to Bank-3 by omitting at least $70,000 in monthly interest payments due to Bank-2 on that debt. (PSR ¶ 34). These statements were the latest in a series of false statements Cohen made to financial institutions in connection with credit applications.

While elsewhere, SDNY makes clear that Cohen has been hiding some liquid assets … somewhere, the amount of fraud he was conducting to keep his finances in order (to say nothing of his refusal to fully cooperate with SDNY’s investigation) suggest they may be the wrong kind of liquid.

An updated financial statement Cohen provided at closing reflected a positive $17 million net worth in addition to previously undisclosed liquid assets, a nearly $20 million increase from the false financial information Cohen had provided to Bank-2 just weeks earlier in the negotiations.

So Manafort was underwater and Cohen was underwater. How badly underwater do you expect we’ll learn Trump Organization is and was?

The Russians exploited Trump’s most venal instincts and those of all the people around him. And all the election help and policy payoffs were just side shows to Trump. So long as he showed a willingness to damage Hillary Clinton in any way available, the Russians were happy to have him believe this was just about a silly tower in Moscow.

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. 

Rob Goldstone Continues to Work the Press to Spin His Role in the June 9 Meeting

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There’s a really funny line in Rosalind Helderman’s profile of Rob Goldstone in conjunction with the release of his book. First, Helderman comically asserts that Goldstone — who did an interview for a long piece in the British Times that helped witnesses coordinate their stories last November — kept his mouth shut about his testimony.

Goldstone has emerged as a rare independent voice in the Russia story — one of the few witnesses who voluntarily sat with any investigator who asked and, out of courtesy to the process, kept his mouth shut along the way.

Helderman suggests she would know about witnesses who had provided testimony to investigators even if they kept their mouths shut. While it’s true that Helderman gets leaks from places few other journalists do (indeed, it’s one reason I did not share everything I knew with certain investigators, to prevent leaks through her), I’m fairly certain that a pretty significant number of witnesses have managed to stay quiet.

The comment is all the funnier given how the at-times-conflicting-with-the-sworn-record WaPo story ends, with Goldstone falsely claiming that the first time he started thinking of the June 9 meeting again after it happened was when the WaPo called him on July 9 and asked him if he set up the meeting.

Then, he said, he did his best to put the meeting out of his mind — until more than a year later, when the New York Times broke the news of the gathering.

Sitting at lunch at a cafe in Greece the next day, he received a call from a Post reporter, inquiring if he had set up the encounter.

The claim is false on a number of fronts. Goldstone made some efforts (albeit, according to his sworn testimony, reluctantly) to set up a November meeting following up on the June 9 meeting. And he started thinking about the meeting again at least at least as early as June 2, 2017, when Trump Organization lawyer Alan Garten reached out to him to learn more details about the meeting that Don Jr was denying ever took place.

Goldstone’s silence on both those details in his WaPo profile puts his actions in much more favorable light than they really were. They hide how substantive the meeting was treated by both sides.

And I find all that pretty amusing given that Goldstone doesn’t name which Post reporter reached out to him in July 2017.

Here’s that story’s byline:

And the reason that’s important is because, at least according to Goldstone on July 9, 2017, his involvement in the meeting got leaked.

His insinuation to Emin Agalarov (in a comment that makes clear he spoke with Helderman, not Hamburger) was that the Trump people had leaked his name to preemptively blame the Agalarov side for misrepresenting the meeting.

Whether or not Goldstone is correct about who leaked his involvement is actually a fairly important detail in the investigation. In any case, the story of the mutual recriminations between the Trumps and Agalarovs really reveals how early both sides realized the meeting was going to cause real problems for the Trumps.

Which is all the more reason for journalists to be honest about where there are and are not leaks.

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. 

It Is False to Claim There Was No Follow-Up to the June 9 Meeting

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On July 15, 2017 — a week after the June 9 meeting was reported in a NYT story publishing the first of numerous White House statements attempting to explain the meeting — Rhona Graff sent Rob Goldstone an email (PDF 44). With only a garbled (perhaps autocorrected) explanation, she forwarded back to Goldstone an email Goldstone himself had sent her the previous November, attaching some talking points from Natalia Veselnitskaya about Bill Browder and the Magnitsky sanctions (for a copy of the talking points, see PDF 37 ff).

A week after the White House had first issued a statement saying, in part, “there was no follow up” on the June 9 meeting, Trump’s Executive Assistant was sharing with Goldstone a paper trail showing that there had been.

Rudy gets all the facts about the June 9 meeting wrong, again

That’s an important detail that gets missed every single time the punditocracy deals with attempts by Rudy Giuliani or his client to spin the June 9 meeting, as has happened in the wake of this TV appearance by Rudy on Meet the Press.

RUDY GIULIANI:

Well, because the meeting was originally for the purpose of getting information about, about Clinton. The meeting turned into a meeting —

CHUCK TODD:

Which in itself it’s attempted collusion. I understand —

RUDY GIULIANI:

No it’s not.

CHUCK TODD:

You just said it. The meeting was intended to get dirt on Hillary Clinton from a criminal lawyer.

(OVERTALK)

RUDY GIULIANI:

No, it wasn’t. No, no.

CHUCK TODD:

That was the intention of the meeting, you just said it.

RUDY GIULIANI:

That was the original intention of the meeting. It turned out to be a meeting about another subject and it was not pursued at all. And, of course, any meeting with regard to getting information on your opponent is something any candidate’s staff would take. If someone said, I have information about your opponent, you would take that meeting. If it happens to be a person with a Russian —

CHUCK TODD:

From the Russian government?

RUDY GIULIANI:

She didn’t represent the Russian government, she’s a private citizen. I don’t even know if they knew she was Russian at the time. All they had was her name.

CHUCK TODD:

They didn’t know she was Russian, I think they knew she was Russian, but ok.

RUDY GIULIANI:

Well, they knew it when they met with her, not when they set up the meeting. You, you told me, you, you asked me, you know, did they show an intention to do anything with Russians? Well, all they knew is that a woman with a Russian name wanted to meet with them. They didn’t know she was a representative of the Russian government and indeed, she’s not a representative of the Russian government. So, this is much ado about nothing. Plus, the President of the United States wasn’t at that meeting. He didn’t know about that meeting. He found out about it after and by the time he found out about it, it was nothing. So, I mean —

Don Jr. took a meeting expecting and accepting dirt from the Russian government

Numerous people have noted that Rudy was totally wrong about the terms on which Don Jr took the meeting in the first place. Rob Goldstone told Don Jr his boss, Aras Agalarov, would,

provide the Trump campaign with some official documents and information that would incriminate Hillary and her dealings with Russia and would be very useful to your father.

This is obviously very high level and sensitive information but is part of Russia and its government’s support for Mr. Trump.

Whether or not that’s what Don Jr got at the meeting (or a week later, when Guccifer 2.0 started releasing stolen documents and information), it is nevertheless the case that Don Jr accepted a meeting at which he expected to be offered dirt on Hillary that was “part of Russia and its government’s support for Mr. Trump.” Indeed, Don Jr specifically said he’d be willing to wait to receive that dirt until later in the summer.

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

The email exchange, by itself, goes a long way towards meeting the terms of a conspiracy, willfully engaging in an agreement to break the law (which includes both accepting things of value from a foreign government and, given events later in the summer, possibly conspiracy to hack a computer).

Remember: to be charged with conspiracy, the conspiracy doesn’t have to be successful. So even ignoring the “documents and information” the Russians started releasing a week later, that “it turned out to be a meeting about another subject,” as Rudy excuses, doesn’t help Jr. He took a meeting to obtain dirt.

Rudy is wrong about follow-up to the meeting as well

So the rest of that that sentence — “and it was not pursued at all” — actually isn’t necessary to an analysis of a conspiracy, because overt acts had already taken place. Still, on that point, too, Rudy is wrong.

The record shows that those behind the meeting did pursue the “it” in question — sanctions relief — fairly aggressively after the election, with some inconclusive cooperation from the Trump Administration. And even after the record on that pursuit goes dark, Russia as a state continued to pursue sanctions relief — indeed, continues even today, most recently by buttering up a series of Republican Senators visiting Moscow to lobby for it.

As I lay out below, Aras Agalarov’s US Vice President, Ike Kaveladze, pushed Goldstone to set up a second meeting, even if with lower level people. As far as we know, that meeting never got scheduled.

But even as the Agalorov effort to obtain sanctions relief fizzled, a more formal Russian effort started, then moved to a back channel.

The most important moment in any follow-up on the June 9 meeting request for sanctions relief came in the December 29, 2016 phones calls between Mike Flynn and Sergei Kislyak about sanctions, a discussion in which Flynn took close directions from KT McFarland, who was with Trump at Mar-a-Lago. Those are the phone calls Flynn lied to the FBI about, in spite of broad knowledge of the calls among transition aides. Those are the phone calls about which he got a plea deal to cooperate with the Mueller team.

Don Jr probably promised the Trumps would revisit sanctions after the election

According to most participants in the meeting who offered testimony to SJC, the Russians were right to expect a follow up discussion on Magnitsky sanctions. In fact, all the participants representing the Russian side save Goldstone (including Anatoli Samochornov, who is the only witness on either side not to have compared notes with at least some of the others before testifying) remembered Don Jr ending the June 9 meeting by saying they’d revisit the issue if or when his father won.

Natalia Veselnitskaya said Don Jr said they’d revisit the topic.

Mr. Trump, Jr. politely wound up the meeting with meaningless phrases about somewhat as follows: can do nothing about it, “if’ or “when” we come to power, we may return to this strange and confusing story.

Ike Kaveladze said that Don Jr said they might revisit the issue if his father won.

There was no request, but as I said, it was a suggestion that if Trump campaign wins, they might get back to the Magnitsky Act topic in the future.

Rinat Akhmetshin said that Don Jr said they would revisit Magnitsky when they won.

A. I don’t remember exact words which were said, but I remember at the end, Donald, Jr., said, you know, “Come back see us again when we win.” Not “if we win,” but “when we win.” And I kind of thought to myself like, “Yeah, right.” But it happened, so — but that’s something, see, he’s very kind of positive about, “When we win, come back and see us again.” Something to that effect, I guess.

Anatoli Samochornov, Veselnitskaya’s translator, who is the most independent witness and the only one who didn’t compare his story with others, said that Don Jr said they would revisit the issue if Trump won.

A. Like I described, I remember, not verbatim, the closing that Mr. Donald Trump, Jr., provided, but that’s all that I recall being said from the other side.

MR. PRIVOR: That closing being that Donald Trump, Jr., suggested —

MR. SAMOCHORNOV: If or when yes, and I do not remember if or when, but if or when my father becomes President, we will revisit this issue.

Just two people remember it differently. In an answer that, in some respects, exactly tracks statements that were massaged elsewhere by Trump’s lawyers, Rob Goldstone said Don Jr told Veselnitskaya to raise it with Obama.

And he stopped this in its tracks and said, with respect, I suggest that you address your — what seemed very valid concerns but to the Obama administration because they actually are in power. My father is a private citizen and, as such, it has no validity, of what you’re saying. Thank you very much for coming. I appreciate all your time. You know, we have a very busy schedule, and thank you.

And Don Jr himself remembers he ended the meeting by saying his father, a private citizen, couldn’t do anything about this.

I proceeded to quickly and politely end the meeting by telling Ms. Veselnitskaya that because my father was a private citizen there did not seem to be any point for having this discussion.

Paul Manafort would have provided testimony on this point to the Senate Intelligence Committee, but stood up SJC after the raid on his condo the morning after he testified. And Jared left the room before any of this transpired.

In any case, given their impression that Don Jr, in a meeting offering dirt on Hillary, had committed to revisiting Magnitsky sanctions if his pop won the election, the Russian side of the meeting did follow-up after Trump won. And so they did.

Agalarov’s team spent ten days in November trying to get Veselnitskaya a follow-up meeting

Ten days after the election, November 18, Ike Kaveladze reported to his boss, Aras, that Rob Goldstone had already reached out to the Trump people (Kaveladze doesn’t say to whom) to follow up.

Q. Could you please take a look at the entry for November 18, 2016, at 17:45. This appears to  be a message from you to Aras Agalarov. Mr. Kaveladze, could you please translate the content of that message?

A. “Hello. Rob spoke with Trump people. They asked a short synopsis of what is she going to be discussing. Last time she produced a lot of emotions and less facts. Most of the people who took part in that meeting are moving to Washington, D. C. Some of them already fired. When they receive synopsis, they will decide who to send to that meeting.”

Goldstone apparently asked for a short synopsis of the topic presented at the meeting — what would turn out to be the Magnitsky Act — so the Trump team could figure out who should attend a follow-up meeting.

On November 23, Kaveladze sent Goldstone that synopsis.

Less than an hour later, Goldstone wrote back and noted that the synopsis was largely what Veselnitskaya had presented in June.

When Kaveladze pressed for a meeting, Goldstone got squirrelly, even while saying he’d speak to both Don [Jr] and Rhona after sending a synopsis.

When Kaveladze followed up on November 27, Goldstone claimed he had sent materials the week before. Kaveladze suggested that this meeting could happen on the assistant or lawyer level — something both Kaveladze and Goldstone had expressed regret hadn’t happened during the summer.

The next time Kaveladze followed up, Goldstone said that Emin might have to call directly (which Kaveladze took to mean making a call to Don Jr).

It appears only after that did Goldstone forward the synopsis to Rhona Graff, above. After which he told Kaveladze that he had “again” asked about a low level meeting.

After that follow-up call, Graff forwarded Goldstone’s email to Steve Bannon (who early this year argued the June 9 meeting should have been held with lawyers, not the top campaign officials, thought without objecting to the exchange in principle), explaining that Trump knew Aras well, but that she wasn’t “sure how to proceed, if at all.”

During this whole exchange, Kaveladze was juggling messages with Veselnitskaya who was in New York on Prevezon business and beginning to panic based on news reports that Trump would keep Preet Bharara on (Kaveladze would continue handling her throughout December, until handing her off to Agalarov attorney Scott Balber in January).

On November 29, he explained to Vesenitskaya that,

Robert says that logistics of organizations [sic] of meetings with Team Trump now would be difficult and lengthy. I’ve landed in Moscow. I will discuss this situation … with my boss.

Kaveladze did not explain from whom Goldstone learned that, or if it included another phone call. He had also told Goldstone he was in Moscow if he wanted to speak directly. As Kaveladze told SJC, he discusses important things with his boss face-to-face because,

Agalarov is based in Russia, and I’m pretty sure, you know, his phone is being, you know, monitored.

And that’s where, as far as we know, the Agalarov effort to follow up on the June 9 meeting, ended, with Kaveladze explaining things face-to-face to his boss. Which would make it follow-up, just unsuccessful follow-up.

At least two communications are unaccounted for

One key question about this follow-up is the role that Don Jr had in it.

None of these texts suggesting Goldstone had phone conversations with someone, probably Don Jr, as early as November 18 were turned over to SJC before Don Jr testified. Probably as a result, he was asked only about the November 28 email from Goldstone to Graff. He claims he was not aware of any part of the follow-up.

Q. It appears Mr. Goldstone continued his anti-Magnitsky effort beyond your June 9, 2016 meeting. Other than this e-mail, were you aware of any other effort he made on this issue after your meeting?

A. Not that I recall, no.

For his part, Goldstone claims he didn’t send anything before that November 28 email, in spite of telling Kaveladze, back in November 2016, that he had.

Q. So in your November 27th message to Mr. Kaveladze, you said you forwarded the information last week. The last email was an email sent on November 28th, the day after this message with Kaveladze, forwarding the document to Ms. Graff. Had you, in fact, forwarded the document the week before your November 27th message with Kaveladze?

A. I don’t recall, but because I know myself, and I know how I write , I would imagine that the minute he reminded me of it in here, I forwarded it to Rhona, probably the next day. So I don’t recall one before then, no.

Q. All right. Prior to sending that email to Ms. Graff on November 28th, 2016, did you speak with Ms. Graff or any other Trump associates about a second meeting with Veselnitskaya?

A. I don’t believe so.

Nevertheless, there are several known or reported communications unaccounted for: the one Goldstone had before November 18, any email he had the week before November 28 with the synopsis, and any follow-up call via which Goldstone would conclude that the logistics of organizing a meeting with Trump people would be difficult during the transition.

Mueller, of course, will know whether Goldstone and Don Jr communicated directly, and if so when. So he will have a sense of whether Don Jr and Goldstone’s claims, which seem to contradict contemporaneous records, are true or not.

The Russian side concludes there is no communication channel

The problem, at least as the Russian side saw it (possibly based off what Goldstone had reported back), was those logistics: a channel of communications. The next day, December 1 at 11:49AM, Kaveladze texted again (Veselnitskaya was by this point frantic because Trump had met with Preet Bharara, with her even discussing who Trump might, “Wet and not to wet” with respect to the US Attorney, which Kaveladze translated as “crush”), explaining that Aras planned on meeting with Trump to restore communications.

Unfortunately, we don’t have communication. My boss planned to meet with him. We will send a formal request. Hopefully after the meeting we will keep communication.

As far as we know, that meeting never happened. Though the Agalarov camp and the Trump camp would resume intense conversations in June 2017, as the Trump Organization began to try to understand the legal liability posed by the meeting. Trump’s lawyers would speak directly with both Kaveladze and Goldstone before Agalarov’s lawyer, Scott Balber, took over the discussions (indeed, he remained the key architect of the narrative from that point forward, probably for all sides). Those are the conversations that would lead, on July 15, Graff to remind Goldstone that he had emailed her to follow up on the June 9 meeting.

So while there was clearly follow-up, there was not a clear resolution to the June 9 meeting in which Veselnitskaya got Trump to adopt her preferred policy.

Other Russians pursue a communication channel

Unless the resolution moved to a different path.

As it happens (this may be a coincidence, or may be a sign of greater coordination that the Trump people claim they’re capable of), later on the same day after Kaveladze said his boss would seek to restore a channel of communication with Trump, Jared hosted a meeting in Don Jr’s office with Sergei Kislyak, attended by Mike Flynn. Even according to Jared’s prepared statement, that meeting was about establishing communication channels to Russia.

The meeting occurred in Trump Tower where we had our transition office, and lasted twenty-thirty minutes. Lt. General Michael Flynn (Ret.), who became the President’s National Security Advisor, also attended. During the meeting, after pleasantries were exchanged, as I had done in many of the meetings I had and would have with foreign officials, I stated our desire for a fresh start in relations. Also, as I had done in other meetings with foreign officials, I asked Ambassador Kislyak if he would identify the best person (whether the Ambassador or someone else) with whom to have direct discussions and who had contact with his President. The fact that I was asking about ways to start a dialogue after Election Day should of course be viewed as strong evidence that I was not aware of one that existed before Election Day.

The Ambassador expressed similar sentiments about relations, and then said he especially wanted to address US. policy in Syria, and that he wanted to convey information from what he called his “generals.” He said he wanted to provide information that would help inform the new administration. He said the generals could not easily come to the U.S. to convey this information and he asked if there was a secure line in the transition office to conduct a conversation. General Flynn or I explained that there were no such lines. I believed developing a thoughtful approach on Syria was a very high priority given the ongoing humanitarian crisis, and I asked if they had an existing communications channel at his embassy we could use where they would be comfortable transmitting the information they wanted to relay to General Flynn. The Ambassador said that would not be possible and so we all agreed that we would receive this information after the Inauguration. [emphasis original]

Don Jr, in his SJC testimony, is the one who revealed that this meeting took place in his own office (and therefore outside of transition space that might be more closely monitored). But he claims he didn’t attend because he was sweaty from a workout; he also claims he didn’t know about it beforehand.

Q. You mentioned during the conversation with my colleagues that you had become aware of a meeting or meetings with Ambassador Kislyak. Can you just explain like what meetings did you become aware of? When did they take place?

A. I don’t remember the exact timing of when they took place. I believe it was after we had already secured — meaning after the election, but I could be mistaken. The only reason I’m aware of it is because it occurred in my office. I came back from the gym and they were in there.

Q. So when you say after the election, you mean after November 8, 2016?

A. I believe so.

Q. Was it a meeting in December of 2016?

A. That would fit the description, yes, I believe so.

Q. So it was a meeting in Trump Tower?

A. Yes.

Q. In your office but you hadn’t known about it beforehand?

A. Correct.

Q. Do you know why they used your office?

A. It was open, I was at the gym.

Q. And who was in that meeting?

A. I believe it was Jared Kushner, the Ambassador, maybe Flynn, but I don’t remember.

Q. Anyone else, to the best of your recollection?

A. No, not that I recall.

Q. Was the meeting still ongoing when you returned?

A. I believe it was, yes.

Q. Did you go in and join the meeting?

A. No, I did not.

Q. Why not?

A. Because I didn’t know what it was about and I was sweaty from the gym.

Q. Did you ask Mr. Kushner or Lieutenant General Flynn about the meeting after?

A. No, I don’t think I did.

So Don Jr doesn’t remember any calls with Goldstone about following up on the June 9 meeting (though they likely occurred), and he says a meeting with the Russian Ambassador just happened to get scheduled into his workout window on the same day his liaison was seeking a new channel of communications.

Mind you, the subject of this attempt to set up a back channel, per Jared, would be cooperating on Syria, something I learned — from someone who played a significant role in the Russian election attack — that Trump was working on within 15 hours of the close of polls in Hawaii the day after the election.

But within short order, these very same players would shift focus of back channel communications to sanctions relief. Within weeks, Kislyak had set up a meeting with the head of a sanctioned bank, Sergey Gorkov, to meet with Jared. And shortly after that, Flynn would make a series of calls to Kislyak about delaying any response to Obama’s December 28 sanctions. This, in turn, would lead to a meeting involving Erik Prince and another sanctioned bank in Seychelles leading up to the inauguration.

Natalia Veselnitskaya never got her second meeting to pitch the end to Magnitsky sanctions, but Sergey Gorkov got a meeting.

The stakes of dissociating the June 9 meeting from any sanctions relief

By this point, Rudy’s credibility is so shot that when he makes a claim, we should assume that it (like any claim his client makes) is suspect, if not an outright lie.

As I noted above, whether or not there was follow-up on the June 9 meeting doesn’t really change whether Don Jr gleefully accepted a meeting expecting dirt from the Russian government on Hillary Clinton. He did. But in Rudy’s dodgy explanations for why the June 9 meeting isn’t criminal, he relies heavily on his claim — a claim that the Trump side has maintained since a week before Rhona Graff found the email that proved it wasn’t true — that there was no follow-up on the meeting.

But there was.

At a minimum, there were several weeks of follow-up on the Russian side, understandably trying to hold Don Jr to (what they remember as) his offer to revisit the issue of sanctions after the election. As part of that follow-up, there are hints that Don Jr was in the loop, even if both he and Goldstone can’t remember that happening.

The follow-up led by the Agalarovs was, as far as the public record indicates, inconclusive. The Agalarovs lost their communication channel (perhaps as Don Jr got sidelined), and so never did get their follow-up meeting.

But on the same day Trump’s long-time handler, Aras Agalarov, said he’d seek out a new channel of communications, Jared Kushner and Mike Flynn were sitting in Don Jr’s office, attempting to establish a back channel of communication, and solidifying a relationship that would, less than a month later, involve yet another overt act regarding sanctions relief. And that overt act — persuading Sergey Kislyak to defer any response to Obama’s new sanctions — was closely directed from Mar-a-Lago.

Update: Looks like Rudy keeps issuing bogus exonerations for Jr because Mueller is closing in on him.

Mueller may be closing in on his son Don Jr. “A lot of what Trump is doing is based on the fact [that] Mueller is going after Don Jr.,” a person close to the Trump family told me. “They’re squeezing Don Jr. right now.”

Don Jr.’s lawyer said, “I’m not going to comment.” Another person briefed on the investigation disputed the term “squeeze,” but said the Mueller team continues to ask for documents.

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. 

Goldstone’s Bare Facts: Attorney, Damaging Information, Democrats, Hillary Clinton, Useful to the Trumps

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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. 

The other day, I argued that people should stop looking for a pee tape. The kompromat that Vladimir Putin has on Donald Trump are what I called “receipts” of his willingness to engage in a conspiracy with Russia to win the election.

People are looking in the entirely wrong place for the kompromat that Putin has on Trump, and missing all the evidence of it right in front of their faces.

Vladimir Putin obtained receipts at each stage of this romance of Trump’s willing engagement in a conspiracy with Russians for help getting elected. Putin knows what each of those receipts mean. Mueller has provided hints, most obviously in that GRU indictment, that he knows what some of them are.

For example, on or about July 27, 2016, the Conspirators  attempted after hours to spearphish for the first time email accounts at a domain hosted by a third-party provider and used by Clinton’s personal office. At or around the same time, they also targeted seventy-six email addresses at the domain for the Clinton Campaign.

But Mueller’s not telling whether he has obtained the actual receipts.

And that’s the kompromat. Trump knows that if Mueller can present those receipts, he’s sunk, unless he so discredits the Mueller investigation before that time as to convince voters not to give Democrats a majority in Congress, and convince Congress not to oust him as the sell-out to the country those receipts show him to be. He also knows that, on the off-chance Mueller hasn’t figured this all out yet, Putin can at any time make those receipts plain. Therein lies Trump’s uncertainty: It’s not that he has any doubt what Putin has on him. It’s that he’s not sure which path before him — placating Putin, even if it provides more evidence he’s paying off his campaign debt, or trying to end the Mueller inquiry before repaying that campaign debt, at the risk of Putin losing patience with him — holds more risk.

Trump knows he’s screwed. He’s just not sure whether Putin or Mueller presents the bigger threat.

On Twitter yesterday, NYCSouthpaw demonstrated how this worked by noting that in his email asking Don Jr for a meeting Rob Goldstone had laid out “all the essential elements of the relevant criminal statute so clearly.” NYCSouthpaw highlighted the words, “This is obviously very high level and sensitive information but is part of Russia and its government’s support for Mr Trump,” which show that in accepting the meeting, Don Jr was accepting something of value from a foreigner.

Remarkably, Goldstone liked that NYCSouthpaw’s tweet.

He then RTed and commented positively on a TCleveland tweet suggesting that Goldstone was only doing what he was told when he set up the meeting.

That’s actually fairly consistent with Goldstone’s (and Ike Kaveladze’s) SCJ testimony. He described Emin Agalarov telling him, over and over, that all he had to do was get a meeting with Don Jr; he didn’t even have to actually attend the meeting. Ike would coordinate once Goldstone got the meeting. And when things started getting crazy a year later, as news of the meeting came out, Agalarov repeated that Goldstone didn’t really have a role in the meeting.

Given my contention that the Russians created kompromat in the way they got Trump or his flunkies to buy into a conspiracy with a kind of call and response, however, I’m particularly interested in this exchange in Goldstone’s testimony.

Q. — you talked about with my colleague, I know we have asked you a lot of questions. I just want to have you explain. When you say there — you wrote the statement “based on the bare facts I was given,” exactly what were the bare facts that you were given?

A. So, to the best of my recollection, when I spoke to Emin, he said to me: I would like you to set up a meeting. A Russian attorney met with my — a well-connected Russian attorney met with my dad in his office, and she appears to have or seems to have damaging information on the Democrats and its candidate, Hillary Clinton. And I think it could be useful to the Trumps.

He talked about the Trumps rather than the campaign. And he would like us to get a meeting. To me, that was it. That’s when I started pushing for more information. But those would be the bare facts: attorney, damaging information, Democrats, Hillary Clinton.

Goldstone doesn’t repeat “could be useful to the Trumps” in his “bare facts” formulation. But he lays out with those words the things that Emin wanted to be included in any request for a meeting: “attorney, damaging information, Democrats, Hillary Clinton, useful to the Trumps.”

Not only were those bare facts enough to excite Don Jr, but he seemed to have some expectation about what this damaging information about Democrats and Hillary Clinton that would be useful to the Trumps would be. “If it’s what you say I love it especially later in the summer.”

Call: Russians have emails they want to release to help Trump, they’d like to discuss a series of escalating meetings

Response: Trump’s April 27 speech, which George Papadopoulos told Ivan Timofeev is a signal to meet, includes this line:

Some say the Russians won’t be reasonable. I intend to find out. If we can’t make a deal under my administration, a deal that’s great — not good, great — for America, but also good for Russia, then we will quickly walk from the table. It’s as simple as that. We’re going to find out.

Call: “attorney, damaging information, Democrats, Hillary Clinton, useful to the Trumps.”

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

Response: Here are just a few docs from many thousands I extracted when hacking into DNC’s network.

Call: “Russia, if you’re listening, I hope you’re able to find the 30,000 (Clinton) emails that are missing. I think you will probably be rewarded mightily by our press.”

Response:

For example, on or about July 27, 2016, the Conspirators attempted after hours to spearphish for the first time email accounts at a domain hosted by a third-party provider and used by Clinton’s personal office. At or around the same time, they also targeted seventy-six email addresses at the domain for the Clinton Campaign.

Goldstone is right. He did what Aras Agalarov’s son told him to do, he set up a meeting by promising, “attorney, damaging information, Democrats, Hillary Clinton, useful to the Trumps.” That he did so via email is gravy. Because (as NYCSouthpaw noted), he clearly presented the offer to Don Jr in such a way that it would fulfill all the terms of the election law statute prohibiting accepting something of value from a foreigner.

And Don Jr responded, joining a Conspiracy to Defraud the United States of its ability to enforce that election law.

Some Possibilities on the Emails Hope Hicks Wanted to Withhold

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Remember this story about how Hope Hicks told Mark Corallo in a conference call on July 9, 2017 that they didn’t have to be fully forthcoming about the purpose of the meeting because the emails would never come out?

In Mr. Corallo’s account — which he provided contemporaneously to three colleagues who later gave it to The Times — he told both Mr. Trump and Ms. Hicks that the statement drafted aboard Air Force One would backfire because documents would eventually surface showing that the meeting had been set up for the Trump campaign to get political dirt about Mrs. Clinton from the Russians.

According to his account, Ms. Hicks responded that the emails “will never get out” because only a few people had access to them. Mr. Corallo, who worked as a Justice Department spokesman during the George W. Bush administration, told colleagues he was alarmed not only by what Ms. Hicks had said — either she was being naïve or was suggesting that the emails could be withheld from investigators — but also that she had said it in front of the president without a lawyer on the phone and that the conversation could not be protected by attorney-client privilege.

At the time, I suggested something didn’t make sense about the story, given the facts we knew at the time, because the NYT already had (what we assume to be) the set of emails that got released.

[T]he NYT admits that even as (or shortly after) that meeting transpired it already had the emails Don Jr released that day and was going to publish them itself.

I suggested at the time that there might be other emails — perhaps between Don Jr and Rob Goldstone, perhaps between other players — that provided more damning information.

But there’s another possibility: that more emails exist, between Don Jr and Rob Goldstone (indeed, we know Goldstone sent follow-up emails involving Vkontakte). Or that there are communications between other players. In which case the release of the current emails might serve to distract from a fuller set that Hicks did succeed in burying.

Given the materials released to SJC — and when they were released — we can be sure there were other emails, and at least some of them have come out.

A return email to Paul Manafort

I’ve already noted one example, or at least part of one example. The Don Jr production turned over by the Trump Organization withheld the version of the original invite letter that includes a response from Paul Manafort.

Of particular interest, however, is a detail revealed about the email that Don Jr released last summer. Effectively, the email thread setting up the meeting appears in two places in the exhibits introduced with Don Jr’s testimony. The thread appearing at PDF 26 to 29 is for all intents and purposes the set he released over two tweets last July 11. That bears Bates stamp DJTJR 485 to 487, which designates that it was the version that Don Jr himself turned over. There’s another version of that thread, though, bearing Bates stamp DJTFP 11895 to 11897, which appears at PDF 1 to 3 in Don Jr’s exhibits (and is used for all the other witnesses). The Bates stamp abbreviation DJTFP, Donald J Trump for President, indicates that that’s the version turned over by the campaign. The exhibit shows the same thread, only with this addition.

That is, after Don Jr informed Jared and Paul Manafort that the meeting would be at 4 instead of 3, Manafort responded, “See you then.”

That — and the fact that Don Jr chose to suppress it when publicly releasing his email — is not by itself damning.

Jared wasn’t copied on the Manafort response, so he couldn’t have turned over the Manafort response (and it wouldn’t have been in the copy leaked to the NYT, if he did the leaking, as suggested by Michael Wolff’s book). Nevertheless by the time Don Jr testified on September 7, SJC had both copies.

Manafort’s awareness of the meeting might be damning by itself, because he spoke with Don Jr and met with Trump on June 7, the day Trump announced the campaign would soon be making a “a major speech on probably Monday of next week, and we’re going to be discussing all of the things that have taken place with the Clintons.”

But it’s possible Manafort’s response wasn’t the last in the thread. Perhaps Don Jr wrote back and said something like, “with the dirt Emin promised we’ll really take out this bitch” or something similarly dignified.

The emails showing Agalarov involvement

As I mentioned in this thread, Goldstone did not fully cooperate with SJC. In the first round he left out a lot of stuff that was responsive to SJC’s request and he never provided phone records; in his later production, two voice mails from Emin appear to be truncated. But in February of 2018 (probably after at least one interview with Mueller’s team), his lawyer provided more documents not produced in the first go-around. Among other things, those materials included more details on Emin’s involvement in crafting a statement, and Kaveladze’s role running everything. Of particular interest, many of these materials would show direct communications between the Agalarov camp and Trump Organization lawyers as they crafted their statement.

The draft statement from July 6

Finally, when considering the possibility that parties withheld damning records, consider this email between Goldstone and Don Jr’s lawyer.

It shows that by the time Goldstone (and Emin and Kaveladze) had some phone calls with Alan Garten and Alan Futerfas at the end of June, the Trump folks already had a statement. When Goldstone gets off his cruise in Greece on July 6, he immediately contacts the Trump camp and asks if that statement has been released.

There’s no record of a response to Goldstone from the Trump camp for several days (though they were on the phone with Kaveladze), until when, on July 9, someone (Goldstone believes it’s the Trump camp) leaked his name. That’s when communications resumed, starting with a Trump request that Goldstone attest that the misleading Don Jr statement they subsequently released is 100% true.

Still, the communication on July 6 is damning enough, because it makes it clear that before Trump is known to have been involved, before Trump spoke to Putin, the Trump camp had what it presented as a finalized statement.

Now imagine if either Goldstone or someone else has a hard copy of that statement and it qualitatively deviates from the existing story?

One notable detail. As noted, Goldstone provided these materials after the NYT story at question here, and after Mark Corallo said he’d testify about Hope Hicks’ obstruction; it possibly took place after the Corallo testimony itself. Goldstone testified to SJC a second time on March 29, not long after Mueller subpoenaed the Trump organization — a subpoena that almost certainly would obtain new copies of the documents at least pointed to if not turned over by others.

All of which is to say that there are numerous emails that have been identified since Don Jr testified that appear not to have been turned over in his production, not to mention any Manafort communications he suppressed.

As I’m still working on showing, there was a tremendous degree of coordination going on in that period. And yet, perhaps in spite of that, some of the key documents didn’t get turned over.

Update: Here’s a version of the document requests to the Trump’s. Any of the emails between the Trump lawyers and Kaveladze or Goldstone would have been responsive. Here is what Jared got (remember, the committee complained that he hadn’t provided everything). And here is what Kaveladze and what Goldstone got. I can see Goldstone arguing the follow-up — and the discussions about earlier Agalarov/Trump meetings — didn’t fit the criteria laid out.

The Same Day Aras Agalarov Was Talking about Restoring Communication with Trump, Jared Kushner Pitched a Back Channel

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I want to pull out a few details regarding the December 1, 2016 meeting between Mike Flynn, Jared Kushner, and Russian Ambassador Sergey Kislyak that come out of the SJC materials released some weeks back. They show that the same day that Jared pitched Kislyak on a back channel, Trump’s handler was in Moscow trying to figure out how to restore communications in the wake of the election.

In his statement (remember, he chickened out of testifying before SJC after Flynn pled guilty, though he attributed the decision to Dianne Feinstein’s release of Glenn Simpson’s transcript), Kushner stated that Kislyak requested the meeting on November 16.

On November 16, 2016, my assistant received a request for a meeting from the Russian Ambassador.

On November 18, Ike Kaveladze texted Aras Agalarov, following up on a phone conversation they had already had, reporting on Rob Goldstone’s outreach to the Trump team to set up a second meeting with Natalia Veselnitskaya to discuss Magnitsky sanctions again.

Q. Could you please take a look at the entry for November 18, 2016, at 17:45. This appears to  be a message from you to Aras Agalarov. Mr. Kaveladze, could you please translate the content of that message?

A. “Hello. Rob spoke with Trump people. They asked a short synopsis of what is she going to be discussing. Last time she produced a lot of emotions and less facts. Most of the people who took part in that meeting are moving to Washington, D. C. Some of them already fired. When they receive synopsis, they will decide who to send to that meeting.”

The text is bizarre for several reasons. While Kaveladze’s English is not great, the description of what has happened to the attendees at the June 9 meeting would suggest more than three attendees, not least because by saying “some” people got fired suggests more than one person — Paul Manafort — had been. In any case, the text makes it clear that the Agalarovs had already started their efforts to resume the discussion about raising Magnitsky sanctions first presented during the summer, which Don Jr had said  in that meeting they would revisit after his father won.

Indeed, while we don’t know when those calls occurred, the outreach seems to nearly if not exactly coincide with Kislyak’s outreach to Kushner, the one known June 9 meeting attendee who was already headed to Washington.

In his testimony, Goldstone claimed he hadn’t done the outreach clearly reflected in Kaveladze’s text and hadn’t forwarded Veselnitskaya’s document the previous week, as reflected in another text to Kaveladze.

Q. So in your November 27th message to Mr. Kaveladze, you said you forwarded the information last week. The last email was an email sent on November 28th, the day after this message with Kaveladze, forwarding the document to Ms. Graff. Had you, in fact, forwarded the document the week before your November 27th message with Kaveladze?

A. I don’t recall, but because I know myself, and I know how I write , I would imagine that the minute he reminded me of it in here, I forwarded it to Rhona, probably the next day. So I don’t recall one before then, no.

Q. All right. Prior to sending that email to Ms. Graff on November 28th, 2016, did you speak with Ms. Graff or any other Trump associates about a second meeting with Veselnitskaya?

A. I don’t believe so.

The Kaveladze transcript and his text messages reveal that the efforts to get Veselnitskaya back in to meet with the Trump team continued for the rest of November.

Probably because he was interviewed before Kaveladze’s documents were provided to the committee, Don Jr was not asked about any of those texts (and Goldstone wasn’t asked about the Kaveladze ones that clearly rebutted his story). Don Jr was asked only about a November 28, 2016 email from Goldstone to Rhona Graff forwarding Veselnitskaya’s document, which was not CCed to Junior. Even though he was probably the one whom Goldstone spoke to and was instructed by to send a synopsis and probably got a synopsis a week before Graff did, Junior claimed not to recall any other follow-up besides the email to Graff.

Q. It appears Mr. Goldstone continued his anti-Magnitsky effort beyond your June 9, 2016 meeting. Other than this e-mail, were you aware of any other effort he made on this issue after your meeting?

A. Not that I recall, no.

Goldstone told Kaveladze he made a bunch of calls following up on the synopsis on November 28, but got no response (though he testified he didn’t make the calls because he didn’t want to pitch the second meeting). He also texted Kaveladze about having Emin call “Trump” (presumably Junior) directly.

In a text on November 29 to Veselnitskaya, Kaveladze explained, without describing from whom Goldstone had learned this, that “Robert says that logistics of organizations of meetings with Team Trump now would be difficult and lengthy. I’ve landed in Moscow. I will discuss this situation … with my boss.”

The next day, December 1 at 11:49AM, Kaveladze texted again (Veselnitskaya was by this point frantic because Trump had met with Preet Bharara, with her even discussing who Trump might, “Wet and not to wet” with respect to the US Attorney, which Kaveladze translated as “crush”), explaining that Aras planned on meeting with Trump to restore communications. “Unfortunately, we don’t have communication. My boss planned to meet with him. We will send a formal request. Hopefully after the meeting we will keep communication.”

The timing on all of Kaveladze’s communications are difficult to track since he travels to Moscow so often, but his time stamps probably reflect PT, meaning that text would have been sent in the evening Moscow time, which is 7 hours ahead of DC.

On December 1, Jared Kushner (the one June 9 meeting attendee definitely on his way to DC at that point) and Mike Flynn met with Sergey Kislyak. Even according to Jared’s prepared statement, that meeting was about establishing communication channels to Russia.

The meeting occurred in Trump Tower where we had our transition office, and lasted twenty-thirty minutes. Lt. General Michael Flynn (Ret.), who became the President’s National Security Advisor, also attended. During the meeting, after pleasantries were exchanged, as I had done in many of the meetings I had and would have with foreign officials, I stated our desire for a fresh start in relations. Also, as I had done in other meetings with foreign officials, I asked Ambassador Kislyak if he would identify the best person (whether the Ambassador or someone else) with whom to have direct discussions and who had contact with his President. The fact that I was asking about ways to start a dialogue after Election Day should of course be viewed as strong evidence that I was not aware of one that existed before Election Day.

The Ambassador expressed similar sentiments about relations, and then said he especially wanted to address US. policy in Syria, and that he wanted to convey information from what he called his “generals.” He said he wanted to provide information that would help inform the new administration. He said the generals could not easily come to the U.S. to convey this information and he asked if there was a secure line in the transition office to conduct a conversation. General Flynn or I explained that there were no such lines. I believed developing a thoughtful approach on Syria was a very high priority given the ongoing humanitarian crisis, and I asked if they had an existing communications channel at his embassy we could use where they would be comfortable transmitting the information they wanted to relay to General Flynn. The Ambassador said that would not be possible and so we all agreed that we would receive this information after the Inauguration. [emphasis original]

Of course, intercepts of Kislyak’s calls back to Moscow captured his alarm that Kushner wanted to use Russian diplomatic facilities to communicate with Russia.

Ambassador Sergey Kislyak reported to his superiors in Moscow that Kushner, son-in-law and confidant to then-President-elect Trump, made the proposal during a meeting on Dec. 1 or 2 at Trump Tower, according to intercepts of Russian communications that were reviewed by U.S. officials. Kislyak said Kushner suggested using Russian diplomatic facilities in the United States for the communications.

[snip]

Kislyak reportedly was taken aback by the suggestion of allowing an American to use Russian communications gear at its embassy or consulate — a proposal that would have carried security risks for Moscow as well as the Trump team.

In any case, this makes it clear that the same day that Trump’s handler, Aras Agalarov, was discussing restoring communication channels with Trump in the post-election period, Jared was pitching the Russian Ambassador on using Russian facilities to conduct such communication. And even though Kushner claims he and Kislyak deferred such communications until after the inauguration, we know that within weeks, Kislyak had set up a meeting with the head of a sanctioned bank to meet with Kushner, a meeting that would precede Flynn’s calls with Kislyak about delaying any response to Obama’s December 28 sanctions, which would, in turn, lead to another meeting in Seychelles, all before the inauguration.

Natalia Veselnitskaya never got her second meeting to pitch the end to Magnitsky sanctions, but Sergey Gorkov got a meeting.

One more detail. Kushner’s statement suggests the meeting with Kislyak took place in formal transition space. But that’s not the case.

Don Jr revealed that meeting took place in his office (he came in at the end, sweaty from a workout).

Q. You mentioned during the conversation with my colleagues that you had become aware of a meeting or meetings with Ambassador Kislyak. Can you just explain like what meetings did you become aware of? When did they take place?

A. I don’t remember the exact timing of when they took place. I believe it was after we had already secured — meaning after the election, but I could be mistaken. The only reason I’m aware of it is because it occurred in my office. I came back from the gym and they were in there.

Q. So when you say after the election, you mean after November 8, 2016?

A. I believe so.

Q. Was it a meeting in December of 2016?

A. That would fit the description, yes, I believe so.

Q. So it was a meeting in Trump Tower?

A. Yes.

Q. In your office but you hadn’t known about it beforehand?

A. Correct.

Q. Do you know why they used your office?

A. It was open, I was at the gym.

Q. And who was in that meeting?

A. I believe it was Jared Kushner, the Ambassador, maybe Flynn, but I don’t remember.

Q. Anyone else, to the best of your recollection?

A. No, not that I recall.

Q. Was the meeting still ongoing when you returned?

A. I believe it was, yes.

Q. Did you go in and join the meeting?

A. No, I did not.

Q. Why not?

A. Because I didn’t know what it was about and I was sweaty from the gym.

Q. Did you ask Mr. Kushner or Lieutenant General Flynn about the meeting after?

A. No, I don’t think I did.

Don’t people shower at the gym before they head back to work? Especially if it’s a fancy schmancy private gym?

At the very least, this suggests that the meeting between Kushner, Flynn, and Kislyak took place outside of formal transition space, which might mean it took place outside the view of Secret Service (a habit Don Jr himself adopted the following year for a period). Don Jr’s claims to have been at the gym, ignorant to the meeting that seemed to parallel one taking place that day in Moscow between Agalarov team members in the wake of discussions about Emin reaching out to Don Jr, are suspicious, not least because he claimed to have forgone the normal shower process following a workout. Had he been in the meeting, you’d think Kislyak would have reported that back. Maybe he did.

But one thing is clear: In NYC and Moscow, on the same day, the Trump team and their Russian handlers were trying to figure out how to restore communications in the wake of the election.