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SDNY Obtained Warrant(s) for Foreign Agent Charges before John Demers Reviewed the Perfect Transcript

Had DOJ followed its own rules in 2019, Donald Trump’s “perfect phone call” with Volodymyr Zelenskyy should have been linked to the ongoing criminal investigation into Lev Parnas. Instead, DOJ limited the review of the criminal referral of the whisteblower complaint in such a way that prevented investigators from making that link. The Parnas warrants recently liberated by NYT reveal that failure was even more damning than previously known.

On August 14, 2019, CIA General Counsel Courtney Elwood told National Security Division head John Demers that someone in the CIA had expressed concerns about the July 25 call. The next day, on August 15, 2019, Demers went to the White House to review the transcript of it.

Mr. Eisenberg and Ms. Elwood both spoke on Aug. 14 to John Demers, the head of the Justice Department’s national security division, according to three people familiar with the discussion. Ms. Elwood did not pass on the name of the C.I.A. officer, which she did not know because his concerns were submitted anonymously.

The next day, Mr. Demers went to the White House to read the transcript of the call and assess whether to alert other senior law enforcement officials. The deputy attorney general, Jeffrey A. Rosen, and Brian A. Benczkowski, the head of the department’s criminal division, were soon looped in, according to two administration officials.

Department officials began to discuss the accusations and whether and how to follow up, and Attorney General William P. Barr learned of the allegations around that time, according to a person familiar with the matter. Although Mr. Barr was briefed, he did not oversee the discussions about how to proceed, the person said.

While DOJ was dawdling over what to do, on August 12, the whistleblower went to Intelligence Community Inspector General Michael Atkinson and filed a formal complaint. ODNI made a criminal referral at the end of August. And then DOJ declined, almost right away, to investigate.

Ms. Elwood and Mr. Eisenberg learned only later about the complaint, filed on Aug. 12, and did not know it was sent by the same officer who had sent the information anonymously to her.

At the end of August, the office of the director of national intelligence referred the allegations to the Justice Department as a possible criminal matter. Law enforcement officials ultimately declined to open an investigation.

I have always pointed out the problem with this tale. Since 9/11, DOJ’s expectation is that when investigators obtain a tip about anything that might pertain to national security, they run it against FBI holdings to see if there’s a known link to any existing investigation.

Had DOJ’s investigators scrutinized the OCCRP story about Lev Parnas and Igor Fruman cited three times in the complaint, had they done searches on all the identifiers implicated by reference in the complaint, they should have found the ongoing investigation into Parnas and Fruman at SDNY. (On review, even the unclassified part of the complaint mentioned people, like Andriy Telizhenko, who were likely the focus of intelligence scrutiny already, though perhaps not yet at FBI.)

But investigators didn’t get the complaint. According to a public confession Kerri Kupec made in September 2019, they got only the call transcript.

“In August, the Department of Justice was referred a matter relating to a letter the director national intelligence had received from the inspector general for the intelligence community regarding a purported whistleblower complaint. The inspector general’s letter cited a conversation between the president and Ukrainian President Zelensky as a potential violation of federal campaign finance law, while acknowledging that neither the inspector general nor the complainant had firsthand knowledge of the conversation,” Kupec said.

Relying on established procedures set forth in the justice manual, the department’s criminal division reviewed the official record of the call and determined based on the facts and applicable law that there was no campaign finance violence [sic] and that no further action was warranted. All relevant components of the department agreed with this legal conclusion, and the department has concluded this matter,” Kupec concluded. [my emphasis]

They didn’t assess the complaint. They assessed the transcript.

That was always a self-evidently corrupt decision — a decision that, if Bill Barr (who definitely knew of the Parnas and Fruman investigation) and Jeffrey Rosen (who likely did) were involved would be provably an effort to prevent investigators from tying the President to Parnas and Fruman.

But the timeline looks worse given something revealed in the warrants from the investigation liberated by the NYT last week.

The indictment used to arrest Parnas and Fruman on October 9, 2019 only charged them for campaign finance crimes: Conspiracy to violate campaign finance law by donating — including to Trump’s PAC and Pete Sessions — in the name of their front company Global Energy Partners, false statements to the FEC about the donation to Trump’s PAC, filing a materially false document to the FEC about the same, and conspiracy to make cannabis-related political donations using foreign money. The Russian source of those funds, Andrey Muraviev was not yet public. And while the donation to Pete Sessions was intimately connected to the firing of Marie Yovanovitch, that wasn’t mentioned in the first indictment.

What appeared in that indictment was consistent with the first two warrants obtained against Parnas and Fruman. The first, served on Google and Yahoo on January 18, 2019, sought evidence of those foreign and straw donor crimes, along with money laundering and fraud. It cited contacts with Sessions’ office, with Ron DeSantis, and even (regarding what the investigation would ultimately show pertained to Fraud Guarantee), Rudy Giuliani. But even in the discussions of Sessions, there was no mention yet of Yovanovitch.

That began to change in the second warrant, served on Apple for iCloud content on May 16, 2019, the first one after Bill Barr would have started getting briefings. That warrant remained focused on those foreign and straw donor crimes, though added false statements for Parnas and Fruman’s claims to the FEC about what they were up to. It added Muraviev to the inquiry. It took out a request to look for communications with individuals who work at “[redacted].”

That second warrant affidavit included a three page section focused on Parnas and Fruman’s recruitment of Pete Sessions to help get Marie Yovanovitch fired. The most striking thing about that second warrant is that SDNY obtained it the day after public notice of her removal, which development it noted in the warrnt. The warrant affidavit appears to have removed a reference to an email sent to Rudy the day after the Campaign Legal Center first disclosed the Parnas and Fruman grift (perhaps upon discovering that it pertained to Parnas’ effort to recruit Rudy into Fraud Guarantee). Still, there was no mention in that second warrant — the one obtained the day after Yovanovitch’s ouster was confirmed — of any foreign agent ties.

On August 14, presumably blissfully unaware of all the efforts to cover up Trump’s extortion attempt in DC, SDNY attempted to get at least two warrants, one requiring Yahoo and Google to provide new email content, everything generated since the January 18 warrant, and another asking for permission to examine the previously obtained content for new crimes. I phrase it that way for two reasons: First, because those warrants were docket number 19 MJ 7593 and 7595; there’s undoubtedly at least one more, 19 MJ 7594, targeting something or someone else (possibly either Muraviev or Pete Sessions). And while Magistrate Judge Henry Pitman approved the warrant permitting SDNY to examine already collected content for new crimes, they bolloxed it somehow. As SDNY explained in an October 17 letter to Judge Oetken,

[T]he Government is not presently able to locate a copy of the August 14 warrant itself, which may be the result of a clerical error, although it is possible a warrant was not submitted in connection with the August 14 application. As such, the Government respectfully requests that the Court review the attached agent affidavit, which was sworn before Judge Pitman on August 14, and issue the attached warrant which would authorize the Government to seize the materials sought in the August 14 application.

But they did get that warrant, 19 MJ 7593, which required Yahoo and Google to provide new content, content that would be scrutinized under SDNY’s expanded focus.

For the first time, SDNY asked for permission to review Parnas and Fruman’s communications for evidence that they or others were unregistered agents of a foreign power under either FARA or 18 USC 951. Those warrants also asked to look for evidence of bribery (a prong of the investigation that appears to have been dropped after interviewing Sessions in the wake of the Parnas and Fruman arrest).

Normally, by the time a US Attorney’s office contemplates such charges, they involve NSD. According to Geoffrey Berman’s book, before SDNY charged Parnas and Fruman, they got Public Integrity’s approval, at 4AM in the middle of the night! It’s certainly possible the “Sovereign District of New York,” as people jokingly describe SDNY’s notorious independence, did not. But it certainly raised the stakes on the tie between Parnas and Fruman and the President.

By the time John Demers reviewed the transcript of Trump’s call with Volodymyr Zelenskyy, the topic of his call had already been made a national security investigation.

In Sentencing Memo, SDNY Scoffs at Lev Parnas’ Claims of Cooperation

June 23, 2022/4 Comments/in Foreign Influence, Impeachment /by emptywheel

The two sides have submitted sentencing memos for Lev Parnas’ scheduled June 29 sentencing. In the face of DOJ’s call for a 78 to 97 months sentence, Parnas is claiming that he “cooperated” with the 2019-20 House impeachment investigation. Parnas suggests that DOJ won’t give him a cooperation departure because they didn’t like what he had to say.

Apparently, the information Mr. Parnas wished to supply the Department of Justice in this case was information that it did not want to hear. Prosecutors kept Mr. Parnas at bay for months before finally hearing his proffer. When they did, it was principally used to thwart his potential trial testimony, rather than to consider his attempt to provide substantial assistance in good faith. Mr. Parnas’s cooperation with Congress was timely and material.

His media statements were intended to place information and evidence that was important to our national interest into the public domain—frequently at great risk to himself. And yet, from nearly the moment Mr. Parnas committed to cooperating with Congress and producing videos, photographs, documents, text messages, proton mail messages and other information, the value of this evidence was of undeniable significance.

But SDNY argues that Parnas did no more than comply with a subpoena, his civic duty.

Parnas’s compliance with the HPSCI subpoena does not justify a downward departure. His decision to produce documents in response to a duly issued subpoena is akin to a civic deed that is “ordinarily not relevant in determining whether a sentence should be outside the applicable guideline range.” § 5H1.11.

SDNY details at more length what transpired before Parnas started pitching his story to Congress: Parnas’ attorney, Joseph Bondy, provided a series of proffers that fell short of the truth. In November 2019, they told Parnas explicitly that his public campaign was harming his bid to cooperate.

Within a week of Parnas’s arrest, on October 16, 2019, Parnas’s counsel contacted the Government to indicate that Parnas was “really upset” that then-President Trump was “claiming he didn’t know [Parnas],” and that Parnas was interested in cooperating. 1 The Government then requested an attorney proffer—that is, a summary from Parnas’s attorney of what Parnas would be able to testify to at trial—in order to evaluate Parnas’s truthfulness and potential to provide substantial assistance. Parnas’s counsel provided a number of attorney proffers beginning on October 28, 2019, but the information was not fully credible and in material respects was plainly contradicted by the evidence the Government had gathered to date, which caused the Government to have serious concerns about Parnas’s credibility and candor. The Government had extended discussions with Parnas’s counsel in the weeks and months following Parnas’s arrest during which the Government pointed counsel to evidence that contradicted the attorney proffers.

Moreover, in an effort to encourage Parnas to be truthful, on November 6, 2019, the Government took the extraordinary step of meeting with Parnas and his counsel for a reverse proffer to explain, among other things, the evidence the Government had gathered against Parnas; what the cooperation process entailed; and that Parnas would have to be truthful and accept responsibility for his own crimes. At the close of that meeting, the Government informed Parnas that public spectacles, leaks, and social media postings could undermine his credibility and diminish his value as a potential cooperating witness. The Government also explained to Parnas how certain information he had provided through his attorney proffers had been contradicted by the evidence and was materially false. After that meeting, Parnas’s counsel wrote the Government to report that he could not “accept responsibility for criminal activity for which he is not guilty,” which based on discussions with counsel, the Government understood to be a reference to, among other things, the campaign finance and false statements offenses of which Parnas now stands convicted.

[snip]

As this Court is aware from pretrial litigation, the Government met with Parnas for a proffer on March 5, 2020. During that proffer, Parnas was not fully credible or forthcoming. He minimized, blamed others for the criminal conduct he has pled to and been convicted of, made statements that were inconsistent with the evidence, and the Government was ultimately unable to corroborate significant portions of what Parnas said. Due to his lack of credibility, candor, and unwillingness to accept responsibility, the Government did not meet with Parnas again for another proffer session and did not proceed with cooperation. [my emphasis]

The government seems far more worried that Judge Paul Oetken, who sentenced Parnas’ co-defendants to a year and a day, would give Parnas a lower than guidelines sentence to avoid a sentencing disparity than that he’d get credit for cooperation.

Parnas is playing that up, too, noting that Igor Fruman got released to a halfway house just three months after reporting.

Two of Mr. Parnas’s co-defendants, David Correia and Igor Fruman, were ultimately offered plea agreements to select counts of the indictment and entered guilty pleas. Mr. Parnas, who was not offered such a plea, proceeded to trial along with another co-defendant, Andrey Kukushkin, which ended in conviction on October 22, 2021. Mr. Parnas filed post-verdict motions for a judgment of acquittal and for a new trial, which were denied.

Thereafter, he entered a plea to the single remaining count against him–which had been previously severed—”the Fraud Guarantee” wire fraud conspiracy. All of Mr. Parnas’s co-defendants have been sentenced by the Court to 366 days’ imprisonment. Mr. Fruman, who surrendered to the custody of the Bureau of Prisons on March 14, 2022, has already been released to “residential reentry management.”

All of which is most interesting for the disposition of the charges relating to Yuri Lutsenko, which were part of the original indictment against Parnas and Fruman, but which were removed in a 2020 superseding indictment. These are the charges that Parnas and Fruman would face with Rudy Giuliani.

In April, Rudy offered what reporters presented as a last minute meeting, before prosecutors made an imminent decision on his prosecution, but nothing has come of it since then. Perhaps we’ll learn more after Parnas’ sentencing next week.

Matryoshka Doll: The Aleksandr Babakov Indictment

April 15, 2022/76 Comments/in 2016 Presidential Election, emptywheel, Foreign Influence /by emptywheel

I’ve been trying to track the US government’s efforts to rein in Russia via various kinds of lawfare.

The indictment unsealed yesterday against Aleksandr Babakov is a remarkable example of the form.

To understand why, let me first explain what I imagine the goals of US lawfare in response to the expanded Russian invasion of Ukraine.

Since the Russian invasion, a number of Western countries have been rolling up Russian intelligence networks and expelling people serving under diplomatic cover by declaring them persona non grata under suspicion of spying. Whereas normally spooks would let other spooks carry on their work so they could spook on other spooks, there seems to have been a decision among most US allies to roll up Russia’s networks, perhaps with twin goals of blinding Russia and cleansing their countries of Russia’s formidable influence networks, which persuaded many in Western countries to trade principle for cash.

That is happening at the same time the West has been trying to craft sanctions to target people powerful enough to influence Vladimir Putin’s thinking.

The series of indictments — variably charging influence-peddling crimes (Foreign Agent and/or FARA), violations of sanctions imposed in response to Russia’s 2014 invasion of Ukraine, and visa fraud — have exposed past influence peddling and raised the legal costs to Americans to continue to be a party. But the only American charged for providing cover for such operations so far — Jack Hanick — was actually charged in November and arrested before Russia expanded its invasion (though the indictment of Andrey Murviev was tied to already-existing charges against Lev Parnas and Igor Fruman).

So it might seem like these indictments are just speaking vehicles: a way for DOJ to make evidence against Russians public, without any real legal impact. But this Babakov indictment demonstrates that’s not the case. This indictment, and the campaign generally, does the following:

Continues to flesh out Russia’s efforts to use its diaspora networks to illegally exert political pressure in other countries
Charges Aleksandr Babakov, making it impossible for him to travel if Russians ever get the opportunity to travel again
Demonstrates the cultivation of specific members of Congress
Puts the American involved — identified here as CC-1 — on notice they have to register past lobbying under FARA

One more detail before I explain the indictment. Remember that there are two overlapping foreign influence peddling laws, which are often confused (because both Michael Horowitz and John Durham fucked this up, I picked a fight with Peter Strzok to call attention to the distinction last night, but Brandon Van Grack, under whom these cases were surely developed, agrees with me.). [Update: I should clarify. This indictment is charged as an 18 USC 371 conspiracy to get an American to commit 18 USC 951, not 951 directly.]

There’s 18 USC 951, acting as an unregistered Agent of a foreign country, which is what is charged here. To be charged, it requires the influence peddling to have been done on behalf of a foreign government. It does not require knowledge of the requirement to register with the Attorney General. By contrast, FARA (22 USC 611), does require that the person peddling foreign influence know they need to register. But it can apply more broadly, to include “foreign principals,” like an oligarch who is not a part of a foreign government. Prosecutions under FARA were rare before Robert Mueller discovered that foreigners were asking agents like Mike Flynn and Paul Manafort to lie to their lawyers about whom they were actually working for. But generally, before that, DOJ would just formally alert someone they needed to register, the person would back-date a FARA registration, and they’d carry on with their sleazy influence-peddling.

So (in addition to sanctions violations and visa fraud) this indictment charges Babakov and two staffers with conspiring to recruit an American — CC-1 — to serve as their unregistered proxy for influence-peddling. The reason I call this a matryoshka doll is because this is how the influence-peddling worked.

As the indictment lays out, Babakov has three jobs. The first is to be a member of the Duma — and he was a member of the Duma for the entire period covered by the indictment, which is why DOJ can charge this under 951. The second and third are serving as the head of two cover organizations, the Institute for International Integration Studies and the International Council of Russian Compatriots. The funding for the two European consultants (their nationality is unclear) involved in this scheme — CC-2 and CC-3 — was paid through IIIS. Babakov recruited CC-1, the American whose involvement allows 951 to be charged — through CC-2. And it was through CC-1 that Babakov attempted to forge ties with members of Congress.

The reason this matryoshka structure matters is because it’s possible CC-1 did not know the extent to which he was working on behalf of the Russian government. CC-1 is described as someone who lives in NYC and has experience “relating to international relations and media.” This could well be a journalist and I don’t rule out knowing him personally. A footnote describes that the communications in the indictment are translations, so CC-1 appears to communicate with CC-2 and CC-3 in a non-English language, but it is not necessarily Russian. CC-2 first solicited CC-1’s involvement on a “national campaign” tied to “human rights and the cause of Cuba.” So it was based on that — an interest in helping Cuba, not an interest in helping Russia — that CC-1 first started pitching meetings with one of two targets described as a “then-member of the U.S. House of Representatives.” From there, CC-3 started sucking CC-1 in with free trips to Europe and Russia.

Via that recruitment process, CC-1 came to be introduced to and serve as the instrument for Babakov’s own views — views that are still quite familiar on the horseshoe left, which may well be the politics this person holds.

At around this time, ALEKSANDR MIKHAYLOVICH BABAKOV, the defendant, publicly expressed his support for Russian President Vladimir Putin’s “approaches to building the country’s foreign policy priorities, including the prospects for developing relations with the United States,” blaming “instability” of the U.S.-Russia relationship on “well-known stereotypes and phobias, as well as the absence of a solid economic foundation,” and “destructive steps in the field of missile defense, NATO [North Atlantic Treaty Organization] expansion to the East.”

Years later, as they were ratcheting up this effort in 2017, the Russians would use CC-1 as an American cut-out.

[T]he defendants[] planned to deploy CC-1 to obtain meetings in the United States with individuals perceived to have political influence, and to use CC-1’s status as an American citizen to help them gain access to visas to travel to the United States for these meetings, all in furtherance of the defendants’ foreign influence operations.

In 2017, CC-1 helped draft some letters to a second then-member of Congress in an attempt to set up a meeting with Babakov, including to invite the Congressperson on an all-expenses paid trip to Crimea.

The lines they pushed in 2017 were the same ones we hear from the horseshoe left now: recognizing Russia’s annexation of Crimea, and,

elaboration of issues of further reduction of nuclear potentials and confidence-building measures in the military sphere, including with regard to NATO’s policy in Eastern Europe and the problem of building up conventional weapons near Russia’s borders.

Let me be clear: This pitch feels familiar to me because I’ve experienced it first-hand. From 2013 until 2018 — until the time I revealed I had gone to the FBI about someone — I would get such pitches. I’m sure the US government considers Snowden’s Freedom of the Press Foundation to be such a cover organization — indeed, Xeni Jardin quit its board over its ties to Russia — and I received funding from them for several years (though always with the understanding that I was being funded by a specific, named American). And a slew of my friends in the dissident left or civil liberties community would get such pitches, as well, many with travel and some with lucrative business opportunities attached. Some of my former associates who most loudly disputed the Russian attribution of the 2016 operation did so after getting such pitches. This happens all the time. And many of the people to whom it happens are the last people the US government would provide counterintelligence training or warnings to in advance. Many are also the kind of people who would ignore government warnings if they were given any. I probably would have when I was getting such pitches.

To be clear, CC-1 is not free from blame. When the person was pitching meetings with three members of Congress in 2012, he claimed to be the “‘President and CEO’ of a nonprofit organization” inviting the members to Europe. CC-1 remained involved after Russia’s puppet in Crimea, Sergey Aksyonov, was sanctioned in the 2014 Ukraine-related sanctions.

For example, on or about March 18, 2014, the day after Aksyonov’s OFAC designation, CC-1 posted a photo on a social media website of Aksyonov standing alongside Russian President Vladimir Putin, and directed the post to VOROBEV, CC-2, and CC-3. Several weeks later, CC-1 made another post referencing a news article regarding “the new US sanctions on Russia.”

After those sanctions, CC-1 continued to pitch Russia’s line on Ukraine — again, a view that is still familiar among the horseshoe left.

[O]n or about May 1, 2014, CC-1 contacted the head of an American internet publication via email and asserted that he had “access to Crimean officials and other pro-Russian officials in Eastern Ukraine willing to go on the record to denounce US interference in the region and to give specifics about it.” CC-1 cited his ties to “[Country-1] MPs and also members of the Russian Duma,” that is, ALEKSANDR MIKHAYLOVICH BABAKOV, the defendant.

The last overt act CC-1 took, at least as described in the indictment, was on April 10, 2017. And while this indictment was unsealed on April 14, 2022 (and so days beyond a five years statute of limitations) it was filed on April 7, a few days short of it.

So it’s unclear whether the government will use this indictment to force CC-1 to retroactively register his lobbying efforts in 2017 under FARA, or whether there was another indictment filed on April 7 we haven’t seen yet. There’s also no description of CC-1 receiving money or other benefits (such as free travel) after the time when these people started getting sanctioned, so it’s unclear whether CC-1 faces a sanctions violation himself.

DOJ is not revealing what legal impact this indictment will have on CC-1 (or a businessman the effort recruited in 2017, or other American targets alluded to in passing), which may have been done to permit for the possibility of cooperation.

What it will do is force CC-1, whoever he is, to account for the fact that his support for carving up Ukraine was not organic, but instead was part of an extended effort by Russia to turn him into a spokesperson for the Russian state.

Update: The June 2017 sanctions against Babakov and his aides are pretty interesting. He appears, without much explanation, along with Yevgeniy Prigozhin’s front companies.

Today’s action also targets six individuals and entities pursuant to E.O. 13661, which authorizes sanctions on, among others, any individual or entity that is owned or controlled by, or that has provided material or other support to, persons operating in the arms or related materiel sector in the Russian Federation, and officials of the Government of the Russian Federation.

Molot-Oruzhie, OOO manufactures ordnance and accessories and is located in the Russian Federation. In 2016, previously-designated Kalashnikov Concern advised a foreign company to use Molot-Oruzhie, OOO to falsify invoices in order to circumvent U.S. and EU sanctions. Molot-Oruzhie is being designated for operating in the arms or related material sector of the Russian Federation and for acting or purporting to act for on behalf of, directly or indirectly, Kalashnikov Concern.

Limited Liability Company Concord Management and Consulting and Concord Catering are being designated for being owned or controlled by Yevgeniy Prigozhin, who OFAC designated in December 2016.

Alexander Babakov is the Russian Federation’s Special Presidential Representative for Cooperation with Organizations representing Russians Living Abroad. Babakov was sanctioned in 2014 by the EU, which noted that he voted “yes” on a Russian bill for the annexation of Crimea. Alexander Babakov is being designated as an official of the Government of the Russian Federation.

Aleksandr Vorobev is Alexander Babakov’s Chief of Staff. Aleksandr Vorobev is being designated for acting or purporting to act for or on behalf of, directly or indirectly, Alexander Babakov.

Mikhail Plisyuk is a staffer to Alexander Babakov. Mikhail Plisyuk is being designated for acting or purporting to act for or on behalf of, directly or indirectly, Alexander Babakov.

It’s as if the US had already developed a pretty good sense that Babakov was running an information operation. And it makes me wonder if he had a role in 2016.

Rudy’s Phones Defy Guarantees We’d Know of an Investigation into Trump

December 5, 2021/34 Comments/in 2016 Presidential Election, emptywheel, Impeachment, January 6 Insurrection, Mueller Probe /by emptywheel

I’m certain, when people assert that if DOJ were investigating Donald Trump, there would be some visible sign, they’re wrong.

I say that because I’m among the people who have followed the proceedings surrounding the Special Master review of Rudy Giuliani’s phones most closely. And I can’t even tell you what the status of that review is, much less whether DOJ obtained warrants for phone-based content for investigations beyond the foreign influence-peddling investigation for which the phones were first seized.

I’m not saying that has happened. I’m saying that if it had happened, none of us would know.

We know Rudy was Trump’s key facilitator in several other crimes Trump committed besides the foreign influence peddling described on the warrants: both obstruction of the Mueller investigation and Trump’s attempt to overthrow the election. There is already public evidence that Rudy would be a subject in any investigation into both those crimes. After all, he (and his current lawyer) dangled a pardon in an attempt to buy Michael Cohen’s silence in April 2018, and in the days after the insurrection, Rudy appears to have been in contact, using his phone, with a Proud Boy associate, James Sullivan, who coordinated with some of the perpetrators.

If Rudy were a subject in these investigations, prosecutors could obtain the content of his phones with no public notice. The people keeping that secret would be the same people who kept the warrants targeting his cloud accounts in 2019 secret for 18 months, and the same people who kept warrants targeting Cohen secret for three months, including one of the very same prosecutors, Nicolas Roos.

Before I explain what we know about Rudy’s phones, let me explain what we learned from Michael Cohen’s investigation, Rudy’s predecessor as Trump’s fixer whose phones got seized by SDNY (Cohen’s criminal docket is here and the Special Master docket is here).

The very first warrant targeting Michael Cohen — a warrant for his Google email that Mueller’s team obtained on July 18, 2017 — described how he set up Essential Consultants not for real estate purposes, as he had claimed to his bank, but instead to pay off Stormy Daniels. But the campaign finance crime that Cohen eventually pled guilty to was not among the crimes listed on that original warrant. Instead, the warrant focused on his lies to his bank, which would be included in his eventual charges, and foreign agent charges, which were not. It wasn’t until April 7, 2018 that the hush payment was included in a warrant for the campaign finance crime to which Cohen eventually pled guilty. Importantly, that warrant, obtained by SDNY, asked to access content obtained with most (but not all) of the warrants targeting Cohen up to that date (the exception was a warrant for Cohen’s Trump Organization email). Those warrants included:

The original July 18, 2017 warrant that obtained Cohen’s email from January 1, 2016 through July 17, 2017
An August 7, 2017 Mueller warrant that obtained the content of Cohen’s iCloud account
A November 13, 2017 Mueller warrant that obtained an expanded period of Cohen’s Gmail, from January 1, 2015 through November 13, 2017
A November 13, 2017 Mueller warrant that obtained the contents of an email account on 1&1 Internet that Cohen set up for Essential Consulting from the date he set it up in March 2017 through November 13, 2017
Warrants SDNY obtained on February 28, 2018 for the Gmail and 1&1 account content from November 14, 2017 through that date

What that April 7 warrant asked to do, then, was to access three devices on which Cohen’s previously-seized content was stored, but to do so in search of evidence of campaign finance crimes not covered by the earlier warrants. (SDNY had expanded the crimes included on the warrants once already in February 2018.) It was only two days later, when SDNY executed searches on Cohen’s residences and phones, that anyone would discover that the government had shown probable cause to obtain warrants targeting Trump’s personal lawyer for crimes including conspiracy, lying to a bank, and campaign finance violations. It was over a year later before the foreign agent warrant searches were publicly disclosed.

This process offers several lessons for this discussion about Rudy’s phones and therefore for discussions about whether DOJ is investigating Trump. First, the government can — and did in the case of two of Donald Trump’s personal lawyers — obtain probable cause warrants without news of the warrants leaking. It’s only when the government conducts an overt search that an investigation would become public. In the interim, and even after the overt search, the government can simply conduct a filter team review of the seized material and store it at FBI. If prosecutors find probable cause to access the already collected content for different crimes, they can do that. They just need to get another warrant. In Michael Cohen’s case, they did that twice.

These three posts — one, two, three — explain how what we’ve learned of the searches on Rudy thus far; this is the docket for the Special Master review of Rudy’s phones).

They show that the government is currently in possession of the contents of Rudy’s email and his iCloud account from roughly May 1, 2018 (three months before the August 1, 2018 start date of the warrants targeting his phone) through November 4, 2019. The FBI did a filter team review of this content that was almost completed in April when they seized Rudy’s phones. So not only has FBI been reviewing that content for evidence of illegal foreign influence peddling with Ukraine since April, if SDNY or some other unit of DOJ could show probable cause that those emails or that iCloud content probably included evidence of other crimes, they could have obtained and executed a search warrant for that, too. We wouldn’t know if they had.

That information would slightly post-date the period in April 2018 when Rudy Giuliani’s (and Steve Bannon’s) own current lawyer, Robert Costello, was writing Michael Cohen implying that Trump would pardon him to buy his silence; because those conversations were with a then-third party, Costello, and preceded the time Rudy was formally representing Trump, they likely would not have been filtered. The discussions that Rudy Giuliani had with Paul Manafort’s attorney in fall 2018 that led Manafort to renege on his cooperation agreement would be covered in that time period, though probably would have been filtered as privileged. Discussions Rudy had with Manafort about Ukraine when he was in prison likely would not be privileged.

If Lev Parnas’ redaction fail is to be believed (and thus far his claims have been utterly consistent with what prosecutors and Judge Paul Oetken have said), on April 13, 2021, DOJ also obtained historic and prospective cell site data for Rudy, as well as Victoria Toensing. While this was probably done to pinpoint the location of the phones targeted in the overt search conducted on April 28, in Rudy’s case that cell site data might have useful information about where Rudy was during or in the aftermath of the January 6 attack. (This is likely to be a fairly circumscribed time period tied to specific events shown in the still-sealed affidavit, but when Mueller obtained historic cell location data on Roger Stone in 2018, it covered a five month period.) This warrant, covering whatever period, would also provide information about with whom Rudy was in contact, though the government would have had some of that without even requiring a warrant.

It’s Rudy’s phones where things begin to get interesting. The FBI seized 16 devices from Rudy. Once he got to review the material extracted from his phones, Rudy claimed that the content dates back to 1995, though the government relayed that Special Master Barbara Jones reported that the bulk of the data dates to 2010 and later. Both Rudy and Toensing pointed to the vast scope of initial data obtained and asked Jones to limit her review to the materials dated within the scope of the warrant, which for Rudy is August 1, 2018 through December 31, 2019. The government responded that this would put Jones in the role of conducting not a privilege review, but also a responsiveness review, something which is a clear government role.

The Letters conflate the scope of the Special Master’s review for privileged material with the scope of the Government’s eventual review for material responsive to the Warrants. The Letters present extensive argument concerning only the latter, yet seek relief concerning the former. That is, the Letters contend that the Government’s search for responsive materials must conform to certain limits, then leap from that conclusion to request limits on the Special Master’s initial screening for privileged items. (See Giuliani Let. 4-24 (arguing Government can review only materials dated August 1, 2018 to December 31, 2019); id. at 1, 25 (requesting order that Special Master review only materials from the same period)). The Letters thus ask the Special Master to conduct a responsiveness review: To identify and withhold from Government investigators documents that are in no way privileged, based on a determination that they fall outside the scope of the Warrants. Neither the Warrants, nor this Court’s order appointing the Special Master, contemplate that an arm of the Court, rather than Government investigators, would conduct such a review. (See, e.g., Dkt. 25 (order appointing Special Master)). The Letters’ attempt to limit the materials to which investigators will have access thus appears to be an attempt to relitigate Giuliani’s and Toensing’s meritless efforts to limit the search contemplated by the Warrants ex ante, which this Court already rejected. (See Dkt. 20 at 3-6 (Court rejecting motions for pre-charge (indeed, pre-search) suppression and return of property)).

The government noted that under the terms of the (known) warrants, they are entitled to anything created, accessed, or deleted in that time frame (the government knows from the Parnas investigation that he deleted information from his iCloud in 2019 and Parnas predicted that Rudy and Toensing did as well). And so the government generously offered to have Special Master Jones limit her privilege review to files created on or after January 1, 2018, arguing that such a limitation is akin to the initial scoping that FBI would do.

SDNY further argued that there is no basis, at this time, to delete any of the older material, because the government might later discover that the material is actually responsive to the investigation.

This Court should not, however, grant the Letters’ requests to destroy or return any data at this time. The Court has already rejected motions for exactly that relief. (See Dkt. 20 at 3-6). Moreover, the Government is entitled to retain a complete copy of the seized data, so that it can authenticate any portion of the data ultimately offered in evidence. See Ganias, 824 F.3d at 215. Data that clearly predates January 1, 2018 should thus simply be put aside, and not reviewed by the Special Master or the Government. It may be that the Government’s eventual review of the materials post-dating January 1, 2018 reveals reason to believe that some of the segregated material is in fact responsive. If that is so, then the Government would have reason to search it—just as an FBI agent might return to that 2013 filing cabinet if his search of other files revealed that documents in the searched office were often filed under the wrong dates. At that point, the Government could then request the privilege review which it is now willing to forego for efficiency’s sake.

Without asking for this explicitly, DOJ’s argument had the effect of asking that Jones conduct a privilege review of content that includes the foreign influence peddling for which SDNY showed probable cause occurred between August 1, 2018 and December 31, 2019, but also content that would cover the entirety of the time that Rudy Giuliani was helping Trump obstruct the Mueller investigation and the entirety of the time that Rudy played the leading role in helping Trump attempt to overthrow an election.

As I have shown, the government sought (and is paying for) a Special Master review in this case because they have reason to believe, presumably based on their earlier search and the investigation into Parnas, there are crime fraud-excepted communications in this content. This very same Special Master, Barbara Jones, provided SDNY with a way to access to Michael Cohen’s communications discussing a campaign finance crime with Trump, and SDNY seems to believe they will obtain communications of Rudy discussing crimes with Trump, as well.

Let me interject and note that Judge Paul Oetken knew of the earlier search on Rudy’s cloud content — indeed, he authorized the gag keeping it secret. And in the 18 months between that search and the time Rudy got notice of it, Oetken likewise issued orders that helped the government cordon off parts of the investigation, such as the initial foreign influence peddling charge against Parnas and Igor Fruman tied to their efforts to fire Marie Yovanovitch, until such time as SDNY was able to access the information in question. That is, Oetken has been persuaded to allow SDNY to protect their investigation into Rudy, even during a period when Billy Barr was actively trying to thwart it, and part of that involved keeping warrants secret not just from the public, but from Rudy, as well.

If SDNY or some other component of DOJ obtained additional warrants for this same content, Oetken would undoubtedly know of it and probably would have had to approve it.

Whether or not there are other warrants and whether or not Oetken knows of them, though, he ruled to give the government access to the content that spans Rudy’s involvement in Trump’s obstruction, his own foreign influence peddling, as well as Rudy’s lead role in attempting to overthrow the election. In mid-September, Oetken ordered Jones to limit her review to materials post-dating January 1, 2018, which is tantamount to ordering her to include in her review everything covering all the potential Trump-related exposure that might be under investigation. And he explicitly denied, for a second time, Rudy and Toensing’s request to delete or return everything else.

That means that at the end of Special Master Jones’ review, the government will have all the unprivileged or crime fraud-excepted contents from Rudy’s 16 devices covering the period when he helped Trump obstruct justice, when he solicited campaign help from foreigners, and when he attempted to overthrow the election (as well as any pardon-related discussions from the post-election period). That doesn’t mean they’ve gotten warrants targeting that content. We would not know whether they had, one way or another. But the content would be available, having already undergone a privilege review, if they did get those warrants.

What we do know is this: Of 2,226 items found on seven of Rudy’s 16 seized devices reviewed by Jones thus far, he claimed privilege over just three items. But even with respect to his privilege claim over those three items, Jones has reserved judgment, meaning she may doubt his claim they can be withheld (perhaps because they are crime fraud-excepted).

The Government has provided Seized Materials from 16 electronic devices seized from Mr. Giuliani. On September 28, 2021, I directed that Mr. Giuliani complete his review of the data contained on seven of these devices by October 6, 2021, which was later extended to October 12, 2021. These seven devices contain 2,226 items in total dated on or after January 1, 2018. Mr. Giuliani designated 3 items as privileged, and I am reserving decision on those 3 items. The remaining 2,223 items have been released to the Government.

Additional documents for review have been assigned to counsel for Mr. Giuliani, with the next set of designations due to me on November 5, 2021.

So as of a month ago, the government had started getting materials — covering the period from January 1, 2018 through April 21, 2021 — from Rudy’s phones.

Jones and her staff were able to conduct privilege review on that content over two weeks time, and they were supposed to have had a second tranche of materials to review a month ago, meaning they likely have reviewed an even larger quantity of material since.

But that’s it! That’s all we know. Jones has reported less frequently than she did during her Cohen review, though assuming she will issue monthly reports now that she is reviewing in earnest, one should be due shortly.

We don’t know how much of the content on Rudy’s phones is evidence of a crime and how much is evidence of drunken blathering to reporters. We don’t know if any entity of DOJ has obtained warrants for those other Trump crimes in which Rudy was centrally involved. We don’t know why Jones has reserved judgement on the few privilege claims that Rudy has made thus far, six months into a Special Master review.

We know just two things. First, if there is evidence of crimes on Rudy’s 16 devices, DOJ will have a way of getting to it. And we would not have anyway of knowing that they had.

Update: In related news, a pre-taped interview I did for NPR was on Weekend Edition this morning.

Lev Parnas’ Failed Attempt to Flip

September 23, 2021/49 Comments/in Foreign Influence, Impeachment /by emptywheel

With a non-cooperation guilty plea earlier this month from co-conspirator Igor Fruman, a trial scheduled next month for Lev Parnas’ laundering of money from a Russian national into the politics of marijuana, another trial scheduled next year for Parnas’ Fraud Guarantee with Rudy Giuliani, and an investigation into Rudy’s foreign influence peddling in a very active phase, it’s a complex time to be prosecuting Parnas. That’s reflected in the government’s motion in limine filing submitted on Tuesday, which argues what and how evidence should be admissible at the October trial.

Since we talk a lot about the hearsay exception under charged conspiracies (as the October trial is), the filing is interesting for the complex ways the government proposes the statements of the participants can be admitted at trial:

Out of court statements — including narrative descriptions of past events — from Parnas, Fruman, David Kukushkin (the other defendant who will face trial), David Correia (who pled guilty in a non-cooperation plea last year), and Andrey Muraviev, the Russian who funded all this, can be entered against each other
The out of court statements made by Parnas employee Deanna Van Rensburg can be admitted for their truth against Parnas, but not against Kukushkin
The government wants to limit questioning of three FBI witnesses to matters affecting their credibility and not other matters (such as why Agent Jacob Balog, who will testify about some charts showing the government’s version of the timeline of events, would be added to the team just recently)
Both defendants have already advised they won’t mount an advice of counsel defense and so the involvement of a lawyer doesn’t help them (though none of the lawyers in question are named Rudy Giuliani)
The defendants’ attempts to clean things up in 2019, including after they got charged, should not be treated as evidence about their intent in 2018
Parnas shouldn’t be allowed to attempt to nullify the jury (and has apparently already committed not to argue to the jury that this matter arose out of vindictive prosecution based on his cooperation in Trump’s 2019 impeachment)
Parnas should not be allowed to argue that Adam Laxalt must be batshit crazy given his more recent public statements in support of Trump’s attempt to steal the 2020 election (or about a matter that the government redacts in their filing)
The government should be allowed to introduce evidence of how Parnas spent Muraviev’s money on lavish spending benefitting himself, but Kukushkin should not be able to argue that Parnas’ skimming is proof the two of them did not conspire
The court should decide ahead of time what damning details it will let Parnas and Kukushkin introduce to incriminate each other
Parnas should be held to the claims he made in a March 5, 2020 proffer to the government

It’s the last of these that I find particularly interesting.

Lev Parnas spent much of January 2020 claiming to want to cooperate with the impeachment inquiry — though those claims were often suspect. At the same time, SDNY seemed to want to stall those efforts. The Senate acquitted Trump in February.

Only after that, on March 5, 2020 (and apparently just March 5), did Parnas proffer testimony in what he had been publicly claiming for some time was an interest in cooperating. But apparently after making statements that support the government case against him at trial next month, nothing came of the proffer.

On March 5, 2020, Parnas and his counsel met with members of this Office and the FBI, to proffer Parnas’s potential testimony about the charges at issue here and other matters. In advance of the proffer, the Government provided a written proffer agreement to Parnas’s counsel, setting forth the terms under which statements Parnas made during the proffer could and could not be used against him.

[snip]

During a lengthy proffer, Parnas made several statements that tend to prove the charges at issue here, or facts underlying those charges. An FBI agent took detailed notes of the proffer, and later produced a formal report memorializing it (the “302”). Those notes, and the 302, have been provided to Kukushkin and Parnas.

[snip]

Under the terms of the Proffer Agreement, therefore, defense counsel is free to present a defense and to argue, for example, that the Government has failed to prove its case beyond a reasonable doubt (or failed to present “credible” evidence).

[snip]

Counsel cannot do so, however, in a matter that directly or indirectly contradicts facts elicited during the proffer without triggering the waiver provision of the agreement.

As the Proffer Agreement and the above law make clear, Parnas may not present evidence or make arguments that are contrary to his own statements in the proffer session without permitting the jury to assess those assertions in light of his contradictory proffer statements. Among the statements that appear most likely to be relevant with respect to the Foreign Donor Scheme, Parnas admitted that the purpose of the money Parnas, Fruman, and Correia obtained from Muraviev was to make campaign contributions to U.S. political candidates. With respect to the Straw Donor Scheme, Parnas admitted that Fruman, rather than Parnas, paid for the donations made to the campaign of Congressman Pete Sessions in Parnas’s name, and that Parnas did not reimburse Fruman for those payments. Allowing Parnas to suggest otherwise, when he had in fact admitted those facts as true, would deceive the jury and subvert the truth-seeking purpose of trial. See Gomez, 210 F. Supp. 2d at 472.

Basically, this means that Parnas can now be held to what he told the government during his proffer. If he tries to deviate from that, they can then used his proffered testimony to disprove his claims. The government explains that they can avoid using this against Kukushkin by having the agent who would testify about the proffered testimony simply not mention Parnas’ inculpatory statements against Kukushkin.

Offering Parnas’s proffer statements to rebut specific claims he may make at trial will not infringe Kukushkin’s rights. Parnas discussed Kukushkin during his proffer, and if read in its entirety the report of Parnas’s proffer plainly inculpates Kukushkin. But the individual admissions that might be relevant to rebutting improper argument by Parnas—such as that Muraviev’s money was sought and used for donations—did not mention Kukushkin. Moreover, because the Government would offer Parnas’s statements through a testifying agent (rather than, for example, a recording), the relevant admission can easily be elicited without mentioning Parnas’s statements about Kukushkin.

All that’s the technicalities and hazards of what happens when someone contemplates a cooperation agreement but then — for whatever reason — doesn’t go through with it.

What I find interesting is the timing and circumstances of this proffer. Parnas had been claiming to want to cooperate far earlier than March 2020. In the interim, however, the government learned certain things (such as what files he had deleted from his iCloud and when) that would have made it easier to identify any lies Parnas told in his bid to convince prosecutors he wanted to cooperate. Plus, as we saw with Michael Cohen, SDNY requires cooperators to cooperate on everything they know, not just the crimes they’ve already been charged with.

Also in the interim, of course, Jeffrey Rosen sharply limited SDNY’s ability to investigate any new leads that Parnas may have given, without first getting approval from EDNY.

And then after Parnas went on the record describing (in part) the crimes for which he’ll go on trial next month, something happened to — quickly, given the single proffer session — make it clear a plea deal was not going to happen. In the 18 months since then, and especially in the five months since Lisa Monaco seems to have authorized SDNY to resume this investigation, DOJ would have been permitted to use Parnas’ proffer to develop new leads in SDNY’s investigation: This investigation, but also the investigation into Parnas’ influence peddling with Rudy.

Rudy’s Other Grifter Prepares to Plead Guilty

August 23, 2021/49 Comments/in Foreign Influence, Impeachment /by emptywheel

Earlier this month, I described how the government was sharing a bunch of evidence with Lev Parnas and his co-defendants. Most of it, the government explained, didn’t pertain to the trial due to start in October.

That suggested the government was showing Parnas and Igor Fruman what further legal jeopardy they faced in an effort to get them to flip.

[A] substantial amount of what the government is sharing is discovery on the additional charges Fruman and especially Parnas face, after they’re done with October’s trial and even after Parnas is done with a second, Fraud Guarantee trial. The government is effectively showing Rudy’s grifters what they have to look forward to in a Foreign Agent case involving Rudy Giuliani.

This is, almost certainly, an effort to convince them to plead guilty and flip on Rudy, which explains why the government is so intent on keeping the trial scheduled for October, to increase the pressure on the grifters.

Today, Fruman filed a change of plea notice. He’ll plead guilty on Wednesday.

While that doesn’t guarantee he’ll flip and cooperate against whatever defendants remain, he’ll get the most benefit at sentencing if he does.

That cooperation would presumably include, at a minimum, Rudy Giuliani for his efforts to get Marie Yovanovitch fired, an effort that led to impeachment in 2019.

Lev Parnas Finally Gets His Rudy Documents — But Not the Way He Wanted

August 12, 2021/16 Comments/in Foreign Influence, Impeachment /by emptywheel

A filing in the Lev Parnas case reveals that Parnas is finally going to get the Rudy Giuliani files he asked for in May.

Yesterday, the lawyer for Andrey Kukushkin wrote asking for another delay in the trial currently scheduled to start on October 4. His request was largely COVID-driven, but he also revealed that the government had just informed him that they were providing more discovery which, he claimed, he wouldn’t have time to review.

Finally, we have just come to learn that the government has not yet completed Rule 16 discovery. Monday night the government, among other things, advised the defense that it required a new storage device capable of holding 64GB of data to make another production of unidentified discovery materials, the 11th so far. We anticipate it being a week before these materials will be in the defense’s possession, if not longer. The defense will require additional time to process, review and analyze these materials, which are in addition to the terabytes of data already received by the defense.

In opposing the request, the government explained that the new discovery was, in part, files from David Correia, the former co-defendant who entered into a cooperation agreement last year, and in part, materials that Judge Oetken had granted the government a Rule 16(d) extension for.

The defendants’ second argument is that an adjournment is necessary because the Government is producing additional materials to the defendants. These materials are being produced to the defendants nearly two months before trial. They will fit on a flash drive capable of holding up to 64 GBs, and the volume of the material is a small fraction of what has been produced to the defendants over the last two years (which represents multiple terabytes of data). The majority of the materials are: (i) records from devices belonging to David Correia, which were not previously reviewed and produced because they were the subject of an appeal that was only resolved after he pled guilty; (ii) materials seized from non-parties that were subject to the Rule 16(d) extension order previously issued by this Court;1 and (iii) images and other multimedia files that were seized from devices that were previously produced in whole or in part. The Government does not believe that all of these materials are discoverable under Rule 16, and in fact the vast majority of the materials have no relevance to the case proceeding to trial in October. To the extent defense counsel has any questions about the material, the Government would be happy to discuss the materials with counsel. The defendants will not be prejudiced by the production of this material now given the amount of time before trial and the relatively small amount of material on the flash drive. Additionally, the defendants will not be prejudiced because any materials the Government intends to use in its case-in-chief from this latest production will be identified in its exhibit list that will be shared with defense counsel later this month.

1 The Government took the position that many of the materials subject to the Rule 16(d) order did not need to be produced in discovery. On May 20, 2021, the defendants requested a conference to address whether the materials were discoverable under Rule 16. The Government opposed disclosure, but represented it would produce a limited subset of material. On July 14, 2021, based in part on the Government’s representations, the Court denied the defendants’ request for the materials. The Government is now producing limited materials from these third parties’ accounts consistent with its prior representations. [my emphasis]

We know the materials withheld under a Rule 16(d) extension are the files seized from Rudy Giuliani and Victoria Toensing’s iCloud accounts (as well as those of some Ukrainians) three ways. First, that’s what Parnas’ lawyer Joseph Bondy demanded in the May 20 request referenced in the footnote. And the government’s response to Bondy’s request explained that Oetken had authorized them under Rule 16(d) to delay sharing the material with the defendants on November 8, 2019. Finally, this is the July 14 order Judge Oetken issued denying Parnas and others the materials.

More interesting than that DOJ has shared these files, though, is what DOJ said about sharing this information more generally. It claims it didn’t have to turn over all these materials and, “the vast majority of the materials have no relevance to the case proceeding to trial in October.”

As a reminder, there are four different alleged crimes at issue. There are these three, the last of which has been severed from the trial due to start in October (these descriptions are from Oetken’s July opinion).

The “Straw Donor Scheme” (Parnas and Fruman): First, the Government alleges that Parnas and Fruman conspired in 2018 to disguise and falsely report the source of donations to political action committees and campaigns, thereby evading federal contribution limits, in order to promote their nascent energy business venture and boost Parnas’s profile.

The “Foreign Donor Scheme” (Parnas, Fruman, and Kukushkin): During the same time period, Parnas and Fruman were working with Kukushkin on a separate business venture: a nascent cannabis business. Among their activities was making political contributions to candidates in states where they intended to seek licenses to operate a cannabis business. The Government alleges that Parnas, Fruman, and Kukushkin conspired to disguise a one-million-dollar contribution from a Russian national to evade the prohibition on political contributions from foreign nationals.

The “Fraud Guarantee Scheme” (Parnas): Parnas was also working with David Correia on pitching another business venture to be called “Fraud Guarantee.” The Government alleges that Parnas and Correia defrauded several investors in Fraud Guarantee by making material misrepresentations to them, including about the business’s funding and how its funds were being used.

In addition, there’s an allegation relating to Yuri Lutsenko’s efforts to get Marie Yovanovitch fired, which was included in the first indictment but taken out in the superseding one.

[T]hese contributions were made for the purpose of gaining influence with politicians so as to advance their own personal financial interests and the political interests of Ukrainian government officials, including at least one Ukranian government official with whom they were working. For example, in or about May and June 2018, PARNAS and FRUMAN committed to raise $20,000 or more for a then-sitting U.S. Congressman [Sessions],

[snip]

At and around the same time PARNAS and FRUMAN committed to raising those funds for [Sessions], PARNAS met with [Sessions] and sought [his] assistance in causing the U.S. Government to remove or recall the then-U.S. Ambassador to Ukraine.

The government says the vast majority of these materials don’t relate to the case being tried in October. That means these materials might pertain to Parnas’ Fraud Guarantee case — and indeed, the David Correia files almost certainly pertain to that. It makes sense that files seized from Rudy might pertain to Fraud Guarantee, too.

More interesting still, they’re highly likely to pertain to the Lutsenko charge given that that was the subject of the warrant obtained to seize them (and both the government and Oetken made clear that the government adhered closely to the scope of the warrant in searching through the materials).

That means a substantial amount of what the government is sharing is discovery on the additional charges Fruman and especially Parnas face, after they’re done with October’s trial and even after Parnas is done with a second, Fraud Guarantee trial. The government is effectively showing Rudy’s grifters what they have to look forward to in a Foreign Agent case involving Rudy Giuliani.

This is, almost certainly, an effort to convince them to plead guilty and flip on Rudy, which explains why the government is so intent on keeping the trial scheduled for October, to increase the pressure on the grifters.

Judge Paul Oetken Eliminates Lev Parnas’ Last Attempt to Weaponize the Former President’s Former Lawyer in His Defense

July 15, 2021/50 Comments/in Financial Fraud, Impeachment /by emptywheel

Yesterday, Judge Paul Oetken ruled on all but one of the pre-trial motions in the Lev Parnas trial(s). The rulings have the effect of neutralizing any benefit that Parnas might have tried to get from his association with the former President’s former lawyer, Rudy Giuliani. But the order also appears against the background of the Special Master review in Rudy’s own case in interesting ways, and in ways that might change Parnas’ incentives.

The only request that Oetken granted was a request to sever the campaign finance charges — what Oetken describes as the Straw Donor scheme (funneling money to pro-Trump entities) and the Foreign Donor scheme (funneling Russian money to pro-marijuana politicians).

The “Straw Donor Scheme” (Parnas and [Igor] Fruman): First, the Government alleges that Parnas and Fruman conspired in 2018 to disguise and falsely report the source of donations to political action committees and campaigns, thereby evading federal contribution limits, in order to promote their nascent energy business venture and boost Parnas’s profile.

The “Foreign Donor Scheme” (Parnas, Fruman, and [Andrey] Kukushkin): During the same time period, Parnas and Fruman were working with Kukushkin on a separate business venture: a nascent cannabis business. Among their activities was making political contributions to candidates in states where they intended to seek licenses to operate a cannabis business. The Government alleges that Parnas, Fruman, and Kukushkin conspired to disguise a one-million-dollar contribution from a Russian national to evade the prohibition on political contributions from foreign nationals.

Oetken will sever those charges from the Fraud Guarantee charges, which currently involve only Parnas (and in which David Correia already pled guilty and cooperated with the government).

The “Fraud Guarantee Scheme” (Parnas): Parnas was also working with David Correia on pitching another business venture to be called “Fraud Guarantee.” The Government alleges that Parnas and Correia defrauded several investors in Fraud Guarantee by making material misrepresentations to them, including about the business’s funding and how its funds were being used.

That puts the trial involving Rudy, in which only Parnas is currently charged, after the non-Rudy trial, which is due to start on October 4.

Then, in two steps, Oetken denied Parnas’ bid to claim to 1) get access to Rudy and Victoria Toensing’s seized content to prove that 2) he was selectively prosecuted to protect the former President. Mind you, Parnas requested those in reverse order (indeed, in its response to Parnas on the selective prosecution claim, the government claimed that some of what he was asking for might be privileged). So Oetken denied those requests in order, first by ruling that Parnas hadn’t provided proof of either basis to claim selective prosecution, that he was discriminated against or that it was done out of some discriminatory purpose.

Parnas does not meet either required prong. Regarding discriminatory effect, Parnas fails to show that others who are similarly situated have not been prosecuted. This requires showing that individuals outside the protected class committed roughly the same crime in roughly the same circumstances but were not prosecuted. See United States v. Lewis, 517 F.3d 20, 27 (1st Cir. 2008). However, individuals similarly situated to Parnas were prosecuted along with Parnas, including two who share his national origin (Fruman and Kukushkin) and one (Correia) who does not. Moreover, while Parnas was subject to a Congressional demand for information at the time of his arrest, Fruman was as well, and while Parnas complied with that demand several months later, Fruman did not.

Regarding discriminatory purpose, Parnas’s argument is not just speculative, but implausible. Citing Twitter posts, Parnas argues that “[m]illions of Americans already believe that [former] Attorney General Barr may have interfered in some aspect of Mr. Parnas’s investigation and prosecution, based on the public record.” Parnas asserts that his indictment and arrest were a means to thwart Parnas’s testimony in the impeachment inquiry of former President Donald Trump. But the theorizing of Twitters users, and Parnas’s own speculation, do not constitute evidence of an improperly motivated prosecution. Indeed, Parnas was, by his own admission, not cooperating with the Congressional demand as of the day of his indictment. To accept Parnas’s conspiracy theory, the Government would have to have known that, one day in the future, Parnas would change his mind and decide to cooperate with the Congressional demand. Furthermore, the Government’s conduct since Parnas’s arrest undermines his theory. The Government consented to allowing Parnas to produce documents to the House impeachment committee, and it has not objected to Parnas’s media interviews and television appearances.

It’s actually not a conspiracy theory that Parnas was prosecuted in the way he was partly as an attempt to shut him up, though when Parnas first argued this, he claimed he was prosecuted to prevent him from testifying in the Former’s first impeachment which, as Oetken notes (and I noted in the past) doesn’t accord with the known facts. And Parnas chose not to present some of the most damning evidence of this, probably because it would incriminate himself.

In any case, having denied Parnas’ selective prosecution claim, in the very next section, Oetken denies Parnas’ request (in which the other defendants joined) to get access to the Rudy-Toensing content, citing his decision rejecting Parnas’ selective prosecution claim.

The Giuliani and Toensing warrants do not authorize the Government to search for evidence related to this case, nor do any of the accounts or devices involved belong to Defendants. The Government represents that it will not use any of the evidence seized pursuant to these warrants at trial in this case. Thus, the only bases for discovery of these materials would be (1) if they contain statements by Defendants that are “relevant” to the charges in this case, or (2) if they are “material” to preparing a defense to the Government’s case.

First, Defendants contend that the search warrant returns are likely to contain communications between Giuliani and Toensing and Parnas. But such communications are likely to have already been produced from Parnas’s and Fruman’s own accounts and devices, and Defendants have not shown that they are related to the charged case, material, and noncumulative.

Second, Parnas suggests that the warrant returns may contain evidence relevant to his selective prosecution claim. The Court has already rejected that claim, and nothing in Parnas’s letter alters the fact that Parnas has failed to make the requisite showing for such a claim.

This is unsurprising on a matter of law, but several points about it are worth closer focus: First, Oetken notes that the government can only access that information seized from Rudy and Toensing that relates to the crimes for which probable cause was laid out in the warrants, that is, Rudy’s influence-peddling, which also implicates Parnas. By description, those warrants do not include any claim that Rudy, with Parnas, attempted to obstruct the impeachment inquiry by hiding details of the influence-peddling scheme. So the warrants would not have provided access to the content of most interest to Parnas, content he’s pretty sure exists or existed.

Oetken is silent about whether any warrants have been obtained since the government finally got access to the first tranche of material seized in 2019.

Oetken then claims that if useful communications existed, they would not have been turned over in the warrant returns served on Parnas and Fruman’s own devices, because those warrants obtained permission for evidence of different crimes. Except there’s very good reason to believe that’s not true: that’s because, by October 21, 2019, the government and Oetken both know, Parnas attempted to delete his own iCloud account. Parnas did not succeed in that attempt — the government had already gotten a preservation order with Apple. But that doesn’t mean there isn’t some other content he once had that he thinks Rudy or Toensing may have retained. Indeed, in his request for the information, Parnas asserted the information seized from Rudy and Toensing likely included conversations — conversations that may have been deleted — about how to address their prior relationships and the unfolding investigation.

The seized evidence will also likely contain a number and variety of communications between Giuliani and Toensing and Parnas that are directly discoverable under Fed. R. Crim. P. 16, evidence of any conversations between Giuliani, Toensing, and others, including Parnas, that may have been deleted, communications between Giuliani, Toensing and others about the defendants and how to address their prior relationships, the arrests, and the unfolding investigation.

Those materials might help Parnas describe why John Dowd attempted to assert an interlocked attorney-client relationship that ultimately put the then-President in a joint defense agreement with at least one pretty sketchy Ukrainian, which in turn might explain how this investigation proceeded as it did (including why it didn’t expand into Rudy’s dalliance with a different Ukrainian agent of Russia). But Parnas as much as describes it as an obstruction attempt — an obstruction attempt he, when he attempted to delete his own iCloud account, would have been a part of before he wasn’t a part of it anymore. Given Rudy’s descriptions of the crimes covered by the warrants, that attempt was not a part of the warrants originally obtained on Rudy and Toensing in 2019, and it wasn’t a part of the warrants obtained in April, but given the new evidence (Parnas’ own declaration), and given that Jeffrey Rosen is no longer around to obstruct investigations into the Former, SDNY (or EDNY) could ask for new warrants for permission to search for evidence of that crime.

If SDNY asked for such warrants, Oetken would have been the one they would ask.

Meanwhile, a month after Special Master Barbara Jones first described how she would proceed in reviewing Rudy and Toensing’s seized materials, including her promise to, “provide the Court with a timeline for concluding the privilege review once she better understands the volume of the materials to be reviewed,” she has made no public reports. Given the pace at which she worked to review Michael Cohen’s content in 2018, in which her first report was issued 38 days after she was appointed, we should expect a report from her in the near future (the same 38 days would have been July 13, though COVID has slowed everything down).

Meanwhile, yesterday’s ruling took a curious approach to privilege issues. One thing Kukushkin complained about was that, by choosing to share information with the impeachment inquiry, Parnas shared information in which they had an attorney-client privilege. Oetken dismissed this concern (and Kukushkin’s larger bid to sever his trial from Parnas’) in part by relying on prosecutors’ representation that they would not rely on privileged material

Kukushkin also argues that because Parnas waived the attorney-client privilege by providing certain materials to Congress, the Government may be able to introduce privileged materials against Parnas, prejudicing Kukushkin. This argument is speculative, and the Government disavows any intent to seek to offer privileged materials.

Finally, all the defendants complained that a key email used against them in the superseding indictment was privileged, and argued that that, plus all fruit of that (a number of other search warrants), should be thrown out.

Defendants assert that an email, quoted in several search warrant applications, is protected by the attorney-client privilege and that, as a result, the returns from the search warrants should be suppressed and the Superseding Indictment itself should be dismissed. This issue will be addressed in a separate opinion and order.

This is a different attorney-client dispute, not the claims of privilege that John Dowd invented to protect a cover-up in 2019. The government argued that it was not privileged, but even if it were it would be covered by the crime-fraud exception. “[T]he crime-fraud exception applies because the email furthered a criminal effort by the defendants to utilize attorneys to structure a new business to conceal the involvement of a foreign national.” But Oetken, who presumably approved of those allegedly poisoned fruit warrants like he approved of the warrants against Rudy and Toensing, has deferred it to a separate opinion.

Oetken knows far more about the substance of these attorney-client disputes, and this is actually the third attempt in this case where a defendant attempted to hide evidence by invoking privilege. In the third, prosecutors successfully argued that materials pre-existing attorney-client privilege are not privileged.

But given all these claims of attorney-client privilege he has been watching, it’s likely he’s unimpressed with the third one.

Barbara Jones’ Special Mastery of Releasing Donald Trump’s Lawyers’ Crime-Fraud Excepted Communications

June 4, 2021/76 Comments/in 2016 Presidential Election, 2020 Presidential Election, Foreign Influence, Impeachment, Mueller Probe /by emptywheel

I knew Rudy Giuliani was in trouble when I read him — along with his lawyer Robert Costello, who allegedly tried to bribe Michael Cohen with a pardon in the wake of an SDNY seizure of his phones — claim that SDNY had first accessed Michael Cohen’s communications after SDNY seized Cohen’s phones in a search of his house and office.

In April 2018, the Government was in this exact same position it is in now in dealing with seizures made from the personal attorney to the President. This is now the second dawn raid of the office and home of an attorney for then President Trump. A year before they searched Giuliani’s iCloud account in November 2019, they were dealing with the raid of Michael Cohen’s home and law office. In Cohen v. United States, 18-mj-3161 (KMW), after conducting a search of President Trump’s personal lawyer’s home and law office, the Government opposed the appointment of a Special Master in a letter to the Court dated April 18, 2018. Counsel for Michael Cohen and intervening counsel for President Trump both requested that a Special Master be appointed and that the Special Master review the evidence, but only after counsel for the respective parties had reviewed the evidence and made their own claims of privilege. On the day of a scheduled conference to decide the issue, the Government, in a letter to Judge Wood, withdrew their opposition to the Special Master, but requested that the Special Master, and not defense counsel, review all the evidence and make the initial determinations of privilege. Judge Wood adopted the compromise and appointed a Special Master to review all materials. One of the Government’s counsel that signed that letter is counsel on this matter as well.

As a result, the Government was well aware that it had agreed to a Special Master in a case involving claims of attorney-client and executive privilege regarding the search and seizure of an attorney’s home and office when that attorney was the personal attorney for the President of the United States. Here, when faced with the exact same situation in November 2019, the Government decided on its own, to use its own Taint Team to sift through all of the evidence gathered and decide what materials were privileged. To make matters worse, not only was Giuliani not informed about this practice, but the Government also continued to keep him, the President and his counsel in the dark for 18 months while Giuliani cooperated with another office of the United States Attorney. Based on its experience in the Cohen case, the Government knew better, or should have known better, that it should not make unilateral, uninformed secret decisions about privilege, but clearly threw caution to the wind in its attempt in this investigation in search of a crime.

Was it really possible, I asked myself, that the President’s own lawyer, as well as the President’s lawyer’s lawyer, had no idea that Mueller’s team had obtained Michael Cohen’s Trump Organization emails from Microsoft with an August 1, 2017 warrant, content which they later shared with SDNY? Was it really possible, I wondered, that Rudy and Costello didn’t know that Mueller also obtained Cohen’s Google and iCloud content, obtained a non-disclosure order for it, and then later passed it on to SDNY, which obtained a separate warrant to access it? Did they not know that that process started 8 months before SDNY raided Cohen’s home and office and took his devices, which then led to the appointment of Special Master Barbara Jones? Did they really not know that SDNY first obtained Cohen’s content with some covert warrants, reviewed that information with the use of a filter team, and only after that got some of the very same information by seizing Cohen’s phones, only with the later seizure, used a Special Master to sort out what was privileged and what was not?

After the government’s reply, I thought for sure they’d start to cop on. I figured Rudy and Costello — who collectively, allegedly tried to bribe Cohen’s silence about the crimes he had committed while purportedly providing legal representation for Donald Trump — would understand the significance of this passage of the government reply:

Giuliani also analogizes this case to Cohen, suggesting that the Government should have known to use a special master because it had just agreed to use one in that case. (Giuliani Ltr. at 11). But Cohen favors an opposite conclusion: there, as here, the Government first obtained covert search warrants for accounts belonging to the subject. The returns of those covert warrants were reviewed by a filter team—a process which was not challenged. Although Judge Wood ultimately appointed a special master in Cohen, she repeatedly made clear her view that the use of a filter team was acceptable and was consistent with the substantial body of law in this Circuit. (See, e.g., Cohen, Dkt. 38 at 8). However, based on the unique circumstances of the case—Cohen’s principal and perhaps only client was then the President, and the case was subject to significant public attention—Judge Wood believed, and the Government agreed, that the use of a special master was needed for the “perception of fairness, not fairness itself.” (Cohen, Dkt. 104 at 88). But even after appointing a special master, Judge Wood continued to recognize the appropriateness of the use of a filter team: at the end of the special master’s review, there was one cellphone that had not been decrypted, and Judge Wood ordered that the if the cellphone was ultimately extracted, the privilege review could be conducted by the Government’s filter team. (Cohen, Dkt. 103 at 6). Thus, following Cohen, it was entirely appropriate for the Government to use a filter team during the covert phase of its investigation, but in light of the intense public interest in this matter following the overt execution of the 2021 Warrants, the Government agrees that while the appointment of a special master is not necessary for fairness, it is in the interest of ensuring that the privilege review process is perceived as fair.

But I didn’t write up the implications of that yet, because I figured there was still something that might save Rudy and Victoria Toensing. Maybe they’d pick a Special Master who would apply dramatically different rules than Special Master Barbara Jones had with Cohen, particularly an approach that said Cohen and Trump could claim privilege and hide the content, but any legal argument about that privilege had to be public. Surely they would be smart enough not to pick Jones, right? Surely, I thought, Rudy and Costello wouldn’t be dumb enough to be lulled into agreeing to appoint Jones herself, perhaps based on a false sense of confidence that since she works at Rudy’s former firm, she’ll go easy on the Mayor?

And yet, yesterday the government wrote to inform Judge Paul Oetken that the parties had agreed on a single choice to serve as Special Master: Barbara Jones.

The Government writes on behalf of the parties to propose the appointment of the Honorable Barbara S. Jones, a retired federal judge with the law firm of Bracewell LLP, to serve as the court-appointed special master for this matter.

They further asked that Oetken write up an order applying the same approach as Jones used with Cohen with Rudy.

The Government respectfully requests that the Court appoint Judge Jones to serve as the special master in this matter because her background and the resources available to her at her law firm will allow her to complete a privilege review in a fair and efficient manner. Mr. Giuliani and Ms. Toensing, through counsel, have both agreed to the appointment of Judge Jones. The Government has conferred with Judge Jones and she is available to accept this appointment. The Government respectfully suggests that the Court issue an Order of Appointment similar to the one issued by Judge Wood in the Cohen matter, setting forth the duties of the special master, the reporting and judicial review requirements, terms of compensation, terms of engagement of other professionals, and other relevant provisions. Cohen, No. 18 Misc. 3161 (S.D.N.Y. Apr. 27, 2018) (Dkt. 30). Judge Jones is available to speak with the Court directly should the Court have any questions about her potential appointment.

Understand, the government has now gotten Rudy on the record begging that he get the same treatment as Michael Cohen. It has gotten Rudy on the record saying he prefers to have a Special Master rifle through his potentially privileged communications than a filter team.

Had this been done overtly, or through the Government’s less onerous subpoena powers, we would have requested that a Special Master to be appointed at the time.

It has also gotten Victoria Toensing to agree on the value of a Special Master (even though she requested she get first shot at reviewing her content).

Appoint a Special Master from the list of candidates proposed by the parties or another suitable candidate identified by the Court to oversee the process and resolve any disputes that may arise;

When former SDNY US Attorney Rudy Giuliani and former Deputy Assistant Attorney General Victoria Toensing made those comments, though, they probably didn’t think through the implication of filter team protocols that both presumably know or once knew, but which the government was kind enough to spell out in their reply to the lawyers’ letters:

As is its practice, the filter team did not release any potentially privileged materials based on the possible application of waiver or crime fraud principles, even if the applicability of those exceptions was apparent on the face of the document.

SDNY filter teams will not pass on potentially privileged materials seized from an attorney even if there is an obvious crime-fraud exception. By description, SDNY suggests that “the applicability of [such] exceptions was apparent on the face of” some of the communications — new copies of which SDNY seized last month — SDNY’s filter team reviewed already. But they couldn’t pass them on because that’s not how SDNY filter team protocols work.

And yet, as a result of Barbara Jones’ review of material seized from Donald Trump’s attorney’s devices, SDNY obtained evidence — of Michael Cohen negotiating hush payments with two women — that might otherwise have been privileged, but that was clearly evidence of a crime. In fact, Trump thought about fighting the release, except after Judge Kimba Wood ruled that legal disputes have to be public, Trump decided not to challenge its release.

An SDNY filter team cannot share evidence that shows a lawyer breaking the law in the service of doing Donald Trump’s dirty work.

But Special Masters can. And Barbara Jones already has.

When I first read these filings — especially SDNY’s very generous offer to pick up the tab for a Special Master — I thought it was just about timeliness, about getting Rudy’s evidence in hand as quickly as possible. But it’s not. It’s the only way that they can obtain materials that they know exist that show Rudy committing a crime in the guise of serving as a lawyer. Admittedly, it might just be materials implicating Lev Parnas and Igor Fruman. But, as happened to Cohen, it might also cover things Rudy did while allegedly doing lawyer stuff for Donald Trump.

Remember, this whole process started when John Dowd claimed that Parnas and Fruman helped Rudy represent Trump, Rudy represented Parnas and Fruman, and they also helped Toensing represent Dmitro Firtash.

Be advised that Messrs. Parnas and Fruman assisted Mr. Giuliani in connection with his representation of President Trump. Mr. Parnas and Mr. Fruman have also been represented by Mr. Giuliani in connection with their personal and business affairs. They also assisted Joseph DiGenova and Victoria Toensing in their law practice. Thus, certain information you seek in your September 30, 2019, letter is protected by the attorney-client, attorney work product and other privileges.

John Dowd made an absurd claim that, even then, was a transparent attempt to hide real dirt behind attorney-client privilege. That’s precisely the material that SDNY is asking Barbara Jones to review to see whether it’s really privileged.

Update: Lev Parnas renewed his bid to force DOJ to go look for materials that help him at trial and support his selective prosecution claim. Along with describing some communications that he believes to exist that would be in Rudy’s files (such as proof of Rudy saying that one of their mutual Fraud Guarantee victims did no due diligence), Parnas outlines the evidence that he was prosecuted to shut him up. The Dowd actions are central to that.

The Government argues that, since Parnas was not yet attempting to cooperate with Congress at the time he was arrested, his selective prosecution claim is without merit. However, by the time of Parnas and Fruman’s arrest, Parnas had received a demand letter seeking evidence from the House Intelligence Committee, and been referred by Giuliani and Toensing to Attorney John Dowd—who had previously represented former President Trump. Attorney Dowd then secured a conflict waiver from Trump—who claimed not to know Parnas—by e-mail through the President’s chief impeachment counsel, Jay Sekulow. Next, Dowd met with Parnas and took custody of materials that he believed were responsive to Parnas’ demand letter. Then, Dowd informed the Intelligence Committee that Parnas would not be appearing as requested, and the evening before Parnas and Fruman were arrested wrote an e-mail to Giuliani, Jay Sekulow, Toensing, and others assuring that Parnas and Fruman would not be appearing to give a deposition or evidence against the former President. Giuliani then backed out of a planned trip to Vienna with Parnas and Fruman, and they were arrested as they boarded their flight. The following day, then-Attorney General William P. Barr made a “routine” visit to the SDNY, and, in the following months, sought the removal of SDNY U.S. Attorney Geoffrey Berman under still-undisclosed circumstances that may well have related to prosecutorial decisions made in Parnas and his co-defendants’ case.

Update: Oetken has indeed appointed Jones.

Rudy Giuliani’s Alleged “Cooperation” Is a Threat to Lay out How Bill Barr and Jeffrey Rosen Protected Russian Disinformation

May 30, 2021/23 Comments/in 2016 Presidential Election, 2020 Presidential Election, Foreign Influence, Mueller Probe /by emptywheel

Now that I’ve waded through Rudy Giulilani’s response to learning that SDNY had conducted a covert search on him in November 2019 before it conducted an overt search in April 2021, I’m certain Rudy engaged in just the kind of bad lawyering SDNY hoped he would — more on that in a week or so.

But a big part of his letter was not an attempt to engage in good lawyering, but instead to send messages to a variety of people. He provided co-conspirators a map they can use to understand which of their communications are in SDNY’s hands, and which are not. But he also laid out what he called his “cooperation,” which aside from minimal claims (which SDNY disputed) to have cooperated with SDNY against Lev Parnas and Igor Fruman, really amounts to the corrupt stuff he believed he was protected for because he did it on behalf of Donald Trump. Indeed, he claims that if Judge Paul Oetken only knew he had permission to do all this stuff, then he wouldn’t have approved the warrants against him.

It is unknown if the Government informed the Court of Giuliani’s cooperation with the State Department or his offers to cooperate with the SDNY or his actual cooperation with the Western District of Pennsylvania.

His first claim of “cooperation” revisits claims he made in the wake of the whistleblower complaint in 2019, claiming that he was working closely with State when he was lobbying to fire Marie Yovanovitch.

It was premature and unwarranted for the Government to seize Giuliani’s ESI because Giuliani had already cooperated with the US State Department (“State”) through Mike Pompeo, the Secretary of State, in March 2019 concerning Ukraine. He also cooperated again in July and August of 2019 at the request of the State Department in assisting them with regard to Ukraine.

This is almost certainly the meat of the SDNY investigation, and whatever else Rudy has done by invoking it, he has put Mike Pompeo on the hotseat.

It may not be a coincidence that in the wake of this letter, Gordon Sondland sued Mike Pompeo for covering up what really happened in State in 2019 and provided several excuses — most importantly, that Pompeo refused to let him access his own backup materials before testifying — for why his two existing sessions of sworn testimony might conflict with what SDNY seized from Rudy.

In his other claim of cooperation, Rudy detailed how he shared disinformation from Russian agent Andrii Derkach with DOJ, which he described as “cooperation” with Main Justice in the guise of its delegate, Pittsburgh US Attorney Scott Brady.

Before I repeat Rudy’s description of how he shared disinformation from Andrii Derkach with a hand-picked and very pro-Trump US Attorney, consider several details: first, immediately in the wake of the raid on Rudy in April, there were leaked explanations for how Rudy managed to meet with a known Russian agent — right in the middle of impeachment!! — even though both National Security Advisor Robert O’Brien and FBI’s Counterintelligence folks knew that Russia was feeding Derkach disinformation to feed to Rudy.

The WaPo originally reported that the FBI had warned Rudy, but had to retract that. Rudy never got warned.

Correction: An earlier version of this story, published Thursday, incorrectly reported that One America News was warned by the FBI that it was the target of a Russian influence operation. That version also said the FBI had provided a similar warning to Rudolph W. Giuliani, which he has since disputed. This version has been corrected to remove assertions that OAN and Giuliani received the warnings.

The FBI became aware in late 2019 that Rudolph W. Giuliani was the target of a Russian influence operation aimed at circulating falsehoods intended to damage President Biden politically ahead of last year’s election, according to people familiar with the matter.

Officials planned to warn Giuliani as part of an extensive effort by the bureau to alert members of Congress and at least one conservative media outlet, One America News, that they faced a risk of being used to further Russia’s attempt to influence the election’s outcome, said several current and former U.S. officials. All spoke on the condition of anonymity because the matter remains highly sensitive.

The FBI became aware of the Russian information operation at a time when Giuliani was deeply involved with former president Donald Trump’s 2020 reelection campaign and related activities in Ukraine to surface unflattering or incriminating information about the Biden family.

[snip]

In late 2019, before Giuliani’s trip to Kyiv, U.S. intelligence agencies warned the Trump White House that Giuliani was the target of a Russian influence operation, as The Post reported last year. Officials became concerned after obtaining evidence, including communications intercepts, that showed Giuliani was interacting with people tied to Russian intelligence. The warnings led then-national security adviser Robert C. O’Brien to caution Trump that any information Giuliani brought back from Ukraine should be considered contaminated by Russia.

Then, after matching the WaPo’s original story and similarly having to retract it, NBC offered an explanation why Rudy wasn’t given that briefing: because it would “complicate” what NBC called “the criminal investigation” into Rudy.

The FBI prepared a so-called “defensive” briefing for Rudy Giuliani in 2019 in which agents were poised to warn him he was being targeted by a Russian intelligence influence operation as he sought to gather opposition research on the Biden family, according to a source familiar with the matter.

But that briefing was not given, according to a second source familiar with the matter, because of concerns that the briefing could complicate the criminal investigation into the former New York City mayor.

Yet, at the time Rudy would have gotten this warning, SDNY had already shown probable cause Rudy was an agent of one or another pro-corruption Ukrainians, almost certainly Yuri Lutsenko in his efforts to fire Marie Yovanovitch. Without a Derkach angle to the SDNY investigation — an angle Jeffrey Rosen went to great lengths to prevent them from pursuing — it’s not clear how it would have complicated that investigation.

Rudy didn’t get his warning and instead of warning him, Trump said that was Rudy being Rudy. So Rudy first met with Lutsenko, the subject of the first investigation, and headed from that meeting directly to meet with Derkach.

A month later, Rosen issued a memo prohibiting any prosecutors from expanding the scope of their already opened investigations, which would have had the effect of preventing SDNY from investigating Rudy’s ongoing influence peddling for known Russian agent Andrii Derkach, about whom FBI decided not to warn Rudy even though everyone briefed on it knew it was a Russian intelligence operation.

But that wasn’t the only thing that Billy Barr and Rosen’s efforts to divvy up Ukrainian investigations did. After Rosen wrote that memo (ensuring no one could start an investigation into Rudy’s dalliances with Derkach), but still a week before Trump was acquitted for coercing dirt from Ukraine to use against Joe Biden, per Rudy’s timeline, Barr assigned Pittsburgh US Attorney Scott Brady to oversee intake of all Ukrainian dirt and, within a day, Rudy was in the business of sharing Derkach’s dirt directly with Pittsburgh’s US Attorney’s office.

In his letter, Rudy clearly identifies four of the nine people who rushed to accept Rudy’s dirt, which the government had identified as Russia disinformation before he went to collect it in December.

[I]n January 2020, counsel for Giuliani contacted high officials in the Justice Department, to inform them that Giuliani wanted to provide evidence for their consideration about the Ukraine. Within a day, the United States Attorney for the Western District of Pennsylvania, Scott W. Brady, contacted Giuliani’s counsel and offered to hold a meeting in Pittsburgh with both the United States Attorney’s office personnel and the FBI. Mayor Giuliani immediately accepted, and a meeting was scheduled for January 29, 2020.

On January 29, 2020, Mayor Giuliani and his counsel, flew to Pittsburgh at their own cost, where they were met by agents of the FBI and transported to FBI headquarters in Pittsburgh. Present at that meeting were the United States Attorney, the First Assistant United States Attorney, the Chief of the Criminal Division, and two additional Assistant United States Attorneys (“AUSA’s”) from the Western District of Pennsylvania. The FBI was represented by the Special Agent in Charge (“SAIC”) of the Pittsburgh FBI, the Assistant Special Agent in Charge (“ASAIC”), and three other special agents of the FBI.

Prior to the meeting, Giuliani’s counsel had provided the Pittsburgh United States Attorney’s office with documents and an extensive outline of the subject matter to be discussed, so that the Government could be fully informed and prepared to ask probing questions. Giuliani began the meeting by making a presentation with handouts. During his presentation, and at the end of it, the Mayor and his counsel answered every question they were asked, to the apparent satisfaction of all of the Government officials in the room. In addition to the presentation, Giuliani provided the Government with the names and addresses of individual witnesses, both in the United States and in Ukraine, that could corroborate and amplify the information that the Mayor was providing. Subsequent to that meeting, and covering a period of months, counsel for Giuliani received a number of inquiries, discussions and requests from the First Assistant United States Attorney. All requests were granted and all inquiries were answered. [my emphasis]

And, as Rudy tells it, that First AUSA kept coming back for more, a claim (like his other claims about the personnel involved) that matches a story published in the NYT after those involved knew that Trump had lost. That story also described that Brady kept pushing for inappropriate investigative steps until, ultimately, Seth DuCharme had to get involved.

Officials said that Mr. Brady almost immediately started pushing to take aggressive steps. He had a list of people he wanted F.B.I. agents to question. It was not clear whether they were the same witnesses that Mr. Giuliani and Mr. Costello had submitted, but a former law enforcement official said that Mr. Brady had wanted the F.B.I. to question people mentioned in Mr. Giuliani’s materials.

The steps were outside “normal investigative procedures,” one former senior law enforcement official with knowledge of the events said, particularly in an election year; Justice Department policy typically forbids investigators from making aggressive moves before elections that could affect the outcome of the vote if they become public.
The Pittsburgh F.B.I. office refused to comply without the approval of David L. Bowdich, the F.B.I.’s deputy director, the former official said.

Mr. Brady’s demands soon prompted a tense confrontation with F.B.I. officials at the bureau’s headquarters in Washington. The meeting was mediated by Seth D. DuCharme, now the acting U.S. attorney in Brooklyn and at the time a trusted aide and ally of Mr. Barr’s at the Justice Department in Washington.

Then, after Barr failed to replace Geoffrey Berman with a hand-picked flunky when he fired him on June 20 of last year, Barr instead installed DuCharme in Brooklyn on July 10, thereby making DuCharme (who had already been personally involved in Pittsburgh) the gatekeeper on any investigations pertaining to Ukraine. And sometime months after that — as Rudy continued to share known Russian disinformation during the election — DuCharme approved not an expansion of the investigation in SDNY that Barr tried to shut down by firing Berman, which would have been the logical thing to do if you were concerned about Russians interfering in our elections, but instead a parallel investigation in EDNY that, per the more recent NYT report, by design would not treat Rudy as a subject. Meanwhile, Rosen created repeated roadblocks — higher and higher levels of approvals for a search of Rudy — in an attempt to prevent SDNY from advancing their investigation into Rudy any further.

There are some involved in this story, like the FBI Agents who got promoted into the jobs formerly held by Andrew McCabe and Bill Priestap and Peter Strzok, who probably let all this happen because they knew the best way to advance their careers was to not make the mistake that their predecessors had made by trying to keep the country safe from Russian interference during an election. Others may rationalize what they did as a means to placate the President, perhaps imagining that it wouldn’t do that much damage to the country — that was the excuse cited by the NYT article on the Pittsburgh investigation. But those people, in recognizing Trump would lash out if they tried to investigate Russian interference in the 2020 election, would have therefore understood that Trump wanted Russian spies to interfere in the election and would be furious if they prevented it. They would have had to have understood that the way to keep Trump happy was to let Russia have its way. They would have been operating on the recognition that all the claims about what Trump did in 2016 were true, at least as far as 2020.

Plus, no one who pushed as hard as Scott Brady did can claim to be trying to placate the President.

Finally, worst of all, there are those who took a vow to “protect and defend against enemies foreign and domestic” who made affirmative attempts to protect not just the disinformation that Rudy was feeding to DOJ and FBI, but also protect Rudy for serving as the willful handmaiden of someone they knew was a Russian spy.

The Russian scandal of 2020 is, in many ways, even more scandalous than the Russian scandal of 2016. At least Paul Manafort and Roger Stone were in a position to claim plausible deniability. Bill Barr and Jeffrey Rosen are not.

Update: This email obtained via American Oversight shows that the decision to use Scott Brady to protect the Russian disinformation intake started earlier, by January 3.