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The Seth DuCharme Confession in the Charles McGonigal Sentencing Memo

In his sentencing memo for Charles McGonigal’s DC case, former Bill Barr flunky Seth DuCharme twice misstated the nature of the false statement for which Kevin Clinesmith was sentenced.

In a passage comparing other government officials who had omitted information from government filings, as McGonigal pled he had, DuCharme asserted that Clinesmith was prosecuted for making “false statements,” plural, “in application for” FISA warrant.

United States v. Clinesmith, No. 1:20-cr-165 (D.D.C. 2020) (imposing probation against FBI attorney for false statements in application for a Foreign Intelligence Surveillance Act (“FISA”) warrant); [my emphasis]

Even before that, in arguing that Judge Colleen Kollar-Kotelly should not apply a sentencing enhancement, he turned to Clinesmith. This time, he accused Clinesmith of causing false information to be submitted to FISC.

Mr. McGonigal disagrees with the application of the cross reference in Section 2B1.1(c)(3), which would increase his base offense level to 14, as inconsistent with case precedent. In United States v. Clinesmith, No. 1:20-cr-165 (D.D.C. 2020), the government did not seek and the sentencing court did not independently apply the cross reference to the obstruction Guideline at the sentencing of an FBI attorney who caused false information to be submitted to the U.S. Foreign Intelligence Surveillance Court (“FISC”) in an application for a Foreign Intelligence Surveillance Act (“FISA”) warrant sought in connection with an active FBI investigation. The government’s position that false statements to the FISC during an active investigation does not warrant application of the cross reference while Mr. McGonigal’s conduct does is perplexing. While Mr. McGonigal concedes that this Court in United States v. Hawkins, 185 F. Supp. 3d 114 (D.D.C. 2016) held that it may consider conduct in the statement of the offense, and the court in United States v. Saffarinia, 424 F. Supp. 3d 46 (D.D.C. 2020) held that at the motion to dismiss phase Section 1519 is broad enough to cover false statements on OGE-278 forms, it is difficult to reconcile these cases with the Clinesmith court’s more recent analysis. In Clinesmith, the District Court declined to apply the obstruction cross reference in determining the applicable Guidelines range, and we respectfully request that this Court similarly decline to apply the cross reference to the facts at issue here. [my emphasis]

Kevin Clinesmith altered an email and with it, misled a colleague, thereby preventing the FBI from fully informing the FISA Court on something material to the application. In that, he “caused” information not to be shared with the FISC. He did not make false statements in the application (and in any case, the original decision not to notify the court that Page had years earlier shared information with the CIA about Russian spies, which Clinesmith had no part of, had in significant part to do the the fact that Page had not been an approved contact of the CIA for several years before 2016, when he went out of his way to contact the Russians about his role in a counterintelligence investigation). Nor did Clinesmith cause affirmative false statements to be made.

His was a crime of omission, not commission, as DuCharme claimed. I emailed DuCharme about the basis for these claims but got no response.

More importantly, whether you agree with him or not, Judge James Boasberg explained why he sentenced Clinesmith to probation: because he didn’t think Clinesmith believed he was lying and the former FBI lawyer got no benefit from his false claim.

First, he obtained no real personal benefit from his actions and he had no active intent to harm.

Although the government has contested this, my view of the evidence is that Mr. Clinesmith likely believed that what he said about Dr. Page was true, namely that he was a subsource but not a source of the Other Government Agency. By altering the e-mail, he was saving himself some work and taking an inappropriate shortcut. But I do not believe that he was attempting to achieve an end he knew was wrong.

I’m on the record saying Clinesmith should have gotten some jail time, even in spite of the wildly unsubstantiated claims Durham’s team made about politicization. I think DuCharme is totally right to compare how lenient courts have been with government officials who fail to disclose things, including by invoking the Clinesmith sentence. That’s all sound lawyering.

But his sloppy treatment of Clinesmith — the appointment of John Durham to prosecute for which DuCharme played a central role — comes off as petulant and partisan. Indeed, Barr’s office took personal interest in this prosecution all the way through the time DuCharme swapped back to EDNY, as revealed by a text exchange Barr had with his Chief of Staff, probably complaining that Boasberg remained on this case, after the plea deal.

There are few factual similarities to the two cases, and by focusing so much on him, DuCharme seems to be saying, “if Kevin Clinesmith didn’t have to go to jail based on our conspiracy theories about him, my guy shouldn’t have to either.”

All the more so given another enhancement argument DuCharme made. He argues that a 3-level enhancement should not be applied because McGonigal trumped up a FARA investigation into the rival of the Albanian paying him to travel around Europe, the thing he failed to disclose.

Mr. McGonigal further disagrees with the application of Section 2J1.2(b)(2) resulting in a three-level enhancement for “substantial interference” with the administration of justice. According to the PSR, the enhancement is applied to Mr. McGonigal because he admitted to “speaking with a foreign official about a matter in which Person A had a financial interest, and opening a criminal investigation based on information provided to him by Person A.” PSR ¶ 57. While the enhancement is appropriately applied to the “premature or improper termination of a felony investigation,” we are aware of no authority supporting its application to the opening of a felony investigation, as is the case here. 7 As Special Agent in Charge (“SAC”) of Counterintelligence for the New York Field Office, it was Mr. McGonigal’s job to pass along information he received that could be indicative of criminal activity. Had Mr. McGonigal taken the alternative route and concealed or withheld the information he received from Person A concerning potential criminal activity in the United States, that would be troubling. Instead, he passed the tip and lead to the FBI, to be appropriately vetted by the Bureau and the U.S. Attorney’s Office. Accordingly, the application of Section 2J1.2(b)(2) is unwarranted.

7 U.S.S.G. § 2J1.2 (“Substantial interference with the administration of justice” means “a premature or improper termination of a felony investigation; an indictment, verdict, or any judicial determination based upon perjury, false testimony, or other false evidence; or the unnecessary expenditure of substantial governmental or court resources.”); see e.g., United States v. Baker, 82 F.3d 273 (8th Cir 1996) (applying enhancement to police officer who improperly terminated a felony investigation). [my bold, italics original]

The technical issue — whether this enhancement can be used because someone initiated an improper investigation rather than improperly ending one — will make an interesting appeal if Kollar-Kotelly applies the enhancement and and sentences McGonigal to serve his sentence concurrent to the 50-month sentence Judge Jennifer Rearden gave McGonigal for trying to trump up sanctions against an Oleg Deripaska rival in SDNY, something DOJ is not requesting. But it’s likely that would be unsuccessful: As the government notes in its sentencing memo and even the footnote here makes clear, after the termination language DuCharme focuses on, the guideline continues, “or the unnecessary expenditure of substantial governmental or court resources.” And McGonigal’s opening an investigation against his business partner’s rival used counterintelligence resources that should have been spent on more serious threats.

FBI officials even questioned the propriety of opening up the criminal investigation at the time it was initiated, but cited the defendant’s directive. See Ex. 1 at 1.

[snip]

Here, initiating the investigation based on Person A’s information was particularly egregious given its lack of substantiation, which is why it was promptly closed following the defendant’s retirement.

DOJ provided records showing that one of McGonigal’s colleagues was genuinely troubled about the propriety of opening a FARA case against someone who had already registered under FARA regarding a country, Albania, that isn’t among the countries of priority for such things. By opening an investigation into a lobbyist for an Albanian political party (reportedly former Ted Cruz Chief of Staff Nicholas Muzin), McGonigal was drawing resources away from more pressing threats.

So my question is with all the talk of shortage of resources and most field offices having difficulty covering Band 3 and 4 threats, and FARA cases from banded threat countries rarely prosecuted by DOJ, why is NY requesting a SIM FAR investigation be opened on Albania for an improper FARA registration as a threat to national security?

I of course will fully support anything NY wants to do in their AOR, but once the paperwork to restrict the case gets reported up my chain of command, I would like to be able to explain to them why we are working an Albanian SIM/FARA case when every day I am in there fighting for resources on some national security matters pertaining to banded countries such as [redacted]. I am assuming since this directive is coming from SAC McGonigal there is more to this story?

Per those records, McGonigal appears to have caused a politically connected Republican to have nine of his bank accounts scrutinized before the investigation got closed. The Albanian section of Oversight Democrats’ report on Trump’s acceptance of emoluments provides more background on the political wranglings involved; Albanian Prime Minister Edi Rama and two aides spent almost $3,500 at Trump’s hotel on a trip when they met with McGonigal.

Notably, the investigation against this lobbyist, like Crossfire Hurricane, was opened as a Full investigation from the start.

And after the FBI discovered that McGonigal had opened up an investigation to help his business partner, the FBI has had to review all the other cases he was working on to make sure he hadn’t similarly used criminal investigations for self-interested purposes.

Moreover, given the defendant’s senior and sensitive role in the organization, the FBI has been forced to undertake substantial reviews of numerous other investigations to insure that none were compromised during the defendant’s tenure as an FBI special agent and supervisory special agent. The defendant worked on some of the most sensitive and significant matters handled by the FBI. PSR ¶¶ 98-101. His lack of credibility, as revealed by his conduct underlying his offense of conviction, could jeopardize them all. The resulting internal review has been a large undertaking, requiring an unnecessary expenditure of substantial governmental resources.

The misrepresentation of the Clinesmith plea might be reasonable coming from someone else. Like all criminal defendants, McGonigal deserves zealous advocacy.

But this argument came from Seth DuCharme.

It came from someone who opened a four year follow-on investigation in which the only crime ever identified was that Clinesmith alteration — and that crime was discovered by someone else, and could easily have been, and should have been, prosecuted by the very same prosecutors who did prosecute it, only instead reporting to the Trump appointed US Attorney in DC rather than Durham. And among the prosecutions pursued as part of that four year investigation that Seth DuCharme opened was a false statements case against Michael Sussmann based off logic directly contrary to what DuCharme argues here, that McGonigal would have failed to do his duty if he hadn’t opened the investigation into his business partner’s rival. That logic, applied to the Durham investigation, says it would have been remiss not to investigate the Alfa Bank allegations that Sussmann shared with Jim Baker — which is exactly what Sussmann said from the start.

Worse still, that argument DuCharme makes, that, “it was Mr. McGonigal’s job to pass along information he received that could be indicative of criminal activity,” is precisely the argument that Bill Barr made to explain a similar laundering of self-interested information that Seth DuCharme effected: the channeling of information from Rudy Giuliani to the Hunter Biden investigation.

The DOJ has the obligation to have an open door to anybody who wishes to provide us information that they think is relevant.

That is, the dishonest argument that Seth DuCharme is making, trying to dismiss the seriousness of Charles McGonigal’s use of FBI resources to conduct an investigation in which he had an undisclosed personal interest? It’s an argument that might also exonerate his own twin efforts to launch massive investigations into Donald Trump’s political rivals.

In fact, in McGonigal’s Deripaska-related sentencing hearing, DuCharme said something shocking. In that case, he said that McGonigal’s enthusiasm for working with someone whom the former FBI agent himself had identified as a Russian spy was only a problem because he was no longer covered by public authority defense. “[O]ne of the critical mistakes he makes in embracing this is that he no longer has the public authority that he had as an FBI agent.” That is, Seth DuCharme, who did set up a way to use dirt from a known Russian spy for a politicized investigation, argued that’s all cool if you’ve got the legal cover of official employ.

By all means, lawyers for Charles McGonigal should point out that DC judges rarely punish government officials who lie by omission that harshly. But in attempting to do that, Seth DuCharme said as much about his own ethics and actions than he did about his client’s crimes.


 

 

Former WikiLeaks Task Force Member Charles McGonigal Didn’t Take Credit for the Josh Schulte Investigation

There’s something about the second Josh Schulte trial I’ve always meant to go back and lay out. It pertains to what I think of as Schulte’s “Guccifer Gotcha.”

Throughout the trial, Schulte, who was representing himself, often got caught up in proving — right there in the courtroom — that he was the smartest guy in the room. That often (particularly with prosecutors’ technical expert and a former supervisor) led Schulte to get entirely distracted from proving his innocence. He focused on proving he was smart, rather than not guilty.

A particularly revealing instance came with Richard Evanchec who, as a member of New York Field Office’s Counterintelligence Squad 6 that focused on insider threats, was one of the lead FBI agents on the Schulte investigation.

On direct, Evanchec had described how before, August 2016, Schulte had only done three searches — ever — on WikiLeaks, but he did 39 searches between August 2016 and January 2017, when WikiLeaks announced Vault 7. (This exhibit is from Schulte’s first, 2020 trial; because the exchange below describes the August 16 search as the first one, I believe the one from his 2020 trial may not have included the Snowden search.)

Schulte started his cross on this topic by asserting that Evanchec had “made [a] grave mistake” in calculating Schulte’s Google searches.

[Reminder: these transcripts were paid for by Wau Holland foundation, which has close ties to WikiLeaks.]

Q. Additionally, sir, did you realize that you made the grave mistake in calculating the Google searches during this time period?

A. I don’t.

Q. You don’t recall that.

A. No.

[snip]

Q. Did you not realize, sir, that 80 percent of the searches you claim that I conducted for WikiLeaks were not actually searches at all?

A. I don’t know that, sir, again.

Q. Sir, are you familiar with the service Google offers called Google News?

A. I am not. I don’t use Google regularly or gmail regularly so I don’t know what that is.

Schulte then walked Evanchec through how a Google News search and a related page visit search show up differently in the logs, demonstrating the concept with some activity from early morning UTC time on August 17, 2016 on Schulte’s Google account.

Q. Did you know that Google makes a special log in its search history when you are using Google News?

A. I don’t. I am not aware of that.

[snip]

Q. OK. Entry no. 12954.

A. Your question, sir?

Q. Can you read just the date that this search is conducted?

A. Appears to be August 17 of 2016 at 2:45:07 UTC.

Q. Can you read what the search is?

A. Searched for pgoapi.exceptions.notloggedinexception. Then there is: (https://www.Google.com/?Q=pgoapi.exceptions.notloggedinexception).

Q. OK. And then the search after it, Google has it, produces it in the opposite direction so the one after that. Can you read that?

A. You are referring to line 12953?

Q. Yes. I’m sorry. Thank you.

A. Tease [sic] OK. Again August 17, 2016, 2:35:27 https://www.google.com/search?Q=WikiLeaks&TBM=NWS).

Schulte then got Evanchec to admit that the FBI agent didn’t consult with any FBI experts on Google before he did his chart of Google searches.

Q. So you basically, just as a novice, opened up this document and just based on no experience, you just picked out lines; correct?

A. No.

Q. No. You did more?

A. Yes. I queried for every time this history set searched for and then included the search terms. That’s what I culminated in my summary.

Q. OK, but you didn’t run that by any of the technical experts at the FBI, did you?

A. Not that I recall.

Q. And you said you didn’t reach out to Google or anyone with expertise, correct?

In his close, Schulte claimed that the exchange showed that all the Google searches he did between August 2016 and January 2017 were based off a Google news alert, and what drove the number of searches was the degree to which WikiLeaks was in the news because of the DNC hack-and-leak.

Mr. Lockard then brings up the Google searches for WikiLeaks, but of course, as Agent Evanchec testified, there were multiple news events that occurred in the summer of 2016. WikiLeaks dumped the Clinton emails. Really? Come on. Everyone was reading that news — Guccifer 2.0. The Shadow brokers released data, and even WikiLeaks claimed to have that code.

No doubt Schulte did demonstrate clearly to Evanchec that he didn’t did look closely at the logs of these searches and that he — Schulte — knew more about Google searches than one of the agents who had led the investigation into him did.

He was the smartest guy in the room.

But in the particular search in question — one that would have been before midnight on August 16, 2016 on the East Coast — what Schulte appears to have shown is that among all the Google news alerts reporting on a flood of news about WikiLeaks, one of the only alerts that he clicked through was one reporting WikiLeaks’ claim to have a tie to ShadowBrokers.

WikiLeaks on Monday announced plans to release a collection of “cyber weapons” purportedly used by the National Security Agency following claims that hackers have breached a division of the NSA said to deal in electronic espionage.

“We had already obtained the archive of NSA cyber weapons released earlier today and will release our own pristine copy in due course,” WikiLeaks said through its official Twitter account Monday.

Individuals calling themselves the “Shadow Broker” claimed earlier in the week to have successfully compromised Equation Group — allegedly a hacking arm of the NSA — and offered to publicly release the pilfered contents in exchange for millions of dollars in bitcoins.

At a threshold level, Schulte’s gotcha doesn’t show what he claimed it did. It showed that among the flood of news about WikiLeaks — almost all focused on the DNC hack-and-leak — he clicked through on stories about an upcoming code release. “Everyone was reading that news — Guccifer 2.0,” Schulte said. But he wasn’t. He clicked on one Guccifer story. He was sifting past the Guccifer news and reading other stuff. Schulte caught Evanchec misreading the Google logs, but then went on to misrepresent the significance of what they showed, which is that amid a flood of news about the DNC hack-and-leak, he was mostly interested in other stuff.

More importantly, once you realize that Evanchec hadn’t looked closely at the logs of these Google searches, something about his first demonstrative — showing just these three searches before August 2016 — becomes evident.

July 29, 2010: Searched for “WikiLeaks”

  • Visited Wikileaks.org webiste [sic]

July 30, 2010: Searched for “WikiLeaks ‘Bastards’”

  • Visited website titled “WikiLeaks Plans to Post CIA Chiefs Hacked Emails” on The Hill

July 6, 2016: Searched for “WikiLeaks Clinton Emails”

  • Visited website titled “WikiLeaks Dismantling of DNC Is Clear Attack By Putin on Clinton” on The Observer

For at least two of these searches, the date in Evanchec’s demonstrative cannot reflect the actual date of the search.

The story, “WikiLeaks Dismantling of DNC Is Clear Attack By Putin on Clinton” — one of the first ones concluding from the DNC hack that Putin was involved — was not posted until July 25, 2016, yet Evanchec’s demonstrative says the search happened weeks earlier.

The story, “WikiLeaks Plans to Post CIA Chiefs Hacked Emails,” describing the Crackas With Attitude hacks of top intelligence community figures in advance of the 2016 operation, dates to October 21, 2015. Evanchec described Google records that say the search happened five years before the article was posted.

Neither of those searches could possibly have been done on the date in Evanchec’s demonstrative, which Schulte — in spite of his obsession with being the smartest guy in the room — undoubtedly knew but didn’t point out at trial.

Schulte got his gotcha. It didn’t help him secure acquittal (or even another hung jury). And it got me, at least, to look more closely at what it proves, which is that at least two of the manual searches Schulte did, searches that sought out very select stories, seemed to obscure the date of the search.

As I said, I’ve been meaning to post this ever since it happened at trial.

I’m revisiting it, though, because of something remarkable about Charles McGonigal’s sentencing memo. Unsurprisingly,  his attorney, former Bill Barr flunkie Seth DuCharme, lays out a bunch of the important FBI investigations that McGonigal was a part of over his 22-year FBI career to describe what service he has done for US security: TWA Flight 800, the 1997 investigation into attempted subway bombers Gazi Ibrahim Abu Mezer and Lafi Khalil, the investigation into the 1998 bombings of US embassies in Africa, the 9/11 attack, the 2002 abduction of a Wooster County, OH girl, the Sandy Berger investigation, the RICO investigation of Huawei Technologies Co.

The government, in their own sentencing memo, includes a footnote suggesting that McGonigal is fluffing his role in at least one of these investigations.

The law enforcement and counterintelligence agents who reviewed McGonigal’s cited exploits noted that he often claims credit for operations in which his personal involvement was less significant than the operation itself. For example, in both his classified and unclassified submissions, McGonigal may describe a significant investigation where he—along with many other officials—was simply somewhere in a lengthy chain of command. (See PSR ¶ 82). Thus, to the extent this Court is inclined to parse McGonigal’s career achievements, the Government respectfully submits that it should limit its analysis to the specific actions that McGonigal personally took. See United States v. Canova, 412 F.3d 331, 358-59 (2d Cir. 2005) (Guidelines departure for exceptional public service warranted where defendant served as volunteer firefighter “sustaining injuries in the line of duty three times,” “entering a burning building to rescue a threeyear old,” “participated in the successful delivery of three babies,” and administered CPR to persons in distress both while volunteering as a firefighter and as a civilian).

One example where McGonigal claimed credit for being in a lengthy chain of commend must be the Huawei investigation, one that Seth DuCharme would also have worked on in the period when he and McGonigal overlapped in NY, from 2016 until 2018. The 2020 press release that DuCharme links to about that investigation, from over a year after McGonigal retired, includes two paragraphs of recognition, including units far afield from counterintelligence.

But one investigation included in McGonigal’s sentencing memo where he did have more involvement is the original WikiLeaks Task Force.

Mr. McGonigal later led the FBI’s WikiLeaks Task Force investigating the release of over 200,000 classified documents to the WikiLeaks website—the largest in U.S. history—ultimately resulting in the 20-count conviction of Chelsea Manning for espionage and related charges.

Charles McGonigal did have a significant role in the first criminal investigation of WikiLeaks, one conducted five years before his retirement.

And that’s why it’s weird that McGonigal doesn’t describe that, in the 18 months before he retired, including in the period between May 2017, when he received a report describing Oleg Deripaska’s ties to GRU, and the period, starting in March 2018, when McGonigal first started interacting with Deripaska’s deputy, Yevgeny Fokin, whom McGonigal allegedly identified as a Russian intelligence officer and claimed to want to recruit, a unit McGonigal supervised solved a WikiLeaks compromise even more damaging and complex than Chelsea Manning’s had been four years before.

Charles McGonigal doesn’t claim credit for the arrest of Josh Schulte and charges filed, over two years after the compromise, for the Vault 7 attack, something in which his team had a more central role than in the Huawei case, something that was every bit as important to national security.

By that point, WikiLeaks had ties to Russia not just through Israel Shamir but also — at least through a shared lawyer — with Oleg Deripaska. That shared lawyer almost negotiated immunity for Assange in exchange for holding off on the Vault 7 leaks.

Now, I’m not at all suggesting that McGonigal was responsible for that fucked up Google analysis, which Schulte would mock five years later. There would have been several levels of management between McGonigal and that analysis. Evanchec simply didn’t look closely enough at the Google metadata, and so didn’t see that those searches were even more interesting than he understood.

But what McGonigal would have known, when he was meeting Deripaska personally in 2019, was that the FBI hadn’t discovered that Schulte had somehow obscured when he did his search on WikiLeaks’ role in embarrassing CIA Director John Brennan and National Security Director James Clapper in 2015, in advance of the 2016 election attack, that he had likewise obscured the date when he searched on Putin’s role in the DNC hack-and-leak. The FBI didn’t even know that in 2022, by the second trial.

McGonigal may also have known what someone associated with WikiLeaks told me, in 2019, that the FBI had learned about Schulte: that he had somehow attempted to reach out to Russia.

To be clear: None of this is charged. There’s no evidence that McGonigal shared details he learned as NYFO’s counterintelligence head, about the WikiLeaks investigation, to say nothing about NYFO’s investigation of oligarchs like Deripaska. McGonigal’s case has been treated as a public corruption case, not an espionage case. So it may be that SDNY has confidence that McGonigal didn’t do anything like that.

But this risk — the possibility that McGonigal could have shared investigative information with Deripaska — doesn’t show up in SDNY’s sentencing memo. SDNY makes no mention of how obscene it is that DuCharme wants his client to get probation when any witnesses implicated in the investigations McGonigal oversaw would never know whether he had shared that information with Deripaska.

That includes me: As I have written, in August 2018, the month before McGonigal retired, someone using one of the ProtonMail accounts Schulte and his cellmate used reached out to me. I have no idea why they did that. But I’d love to know. I’d also love to know whether McGonigal learned of it and shared it.

It makes sense that McGonigal doesn’t emphasize what SDNY did on their own sentencing memo: That McGonigal went from supervising investigations into Deripaska to working for him, allegedly knowing full well he had ties to Russian intelligence. But the tie between WikiLeaks and Deripaska is more obscure, and so he could have bragged that twice in his career he led substantial investigations into WikiLeaks. Schulte’s third trial, for Child Sexual Abuse Material, even happened after Judge Jennifer Rearden became a judge in October 2022.

McGonigal could have bragged that twice in his career, in 2014 and in 2018, teams he oversaw solved critical WikiLeaks compromises. He only claimed credit for the first of those.

Update: Corrected Fokin’s first name.

The May 2017 Report Tying Oleg Deripaska to Russian Intelligence

I’m working on a longer post about the sentencing submissions (McGonigal; SDNY) for Charles McGonigal’s SDNY case — the former head of counterintelligence for FBI’s New York Field Office. He will be sentenced in that case on Friday; he will be sentenced in his DC case in February.

The submission for McGonigal submitted by former Bill Barr flunkie Seth DuCharme argued that McGonigal’s crime, researching a rival oligarch for Oleg Deripaska after he retired in 2018, is no big deal because DOJ has sanctioned Deripaska’s rival, Vladimir Potanin, since that time.

[W]hen compared to other conduct for which the government has brought criminal charges, it bears repeating that here the crime was clearly malum prohibitum rather than malum in se—in other words, the defendant’s intent in agreeing to provide an SDN with information to be used for business competition purposes is far less serious than the criminal conduct in other IEEPA-related cases. [links added]

DuCharme asks for a probation sentence.

As you can imagine, SDNY has a lot to say about that in response. DuCharme, whom PACER does not show as having taken many, if any defendant, through sentencing since he left DOJ in 2021, really invited SDNY to throw a lot of damaging information at McGonigal.

One thing SDNY did was explain why McGonigal knew working for Deripaska was more damaging than that. One thing they note is that in January 2018, before he left the FBI, McGonigal reviewed a list of oligarchs, including Deripaska, under consideration for sanctions.

McGonigal knew full well that Deripaska was sanctioned. As SAC, McGonigal supervised and participated in investigations of Russian oligarchs, including Deripaska. (PSR ¶ 19).

[snip]

And in January 2018, McGonigal received and reviewed a then-classified list of Russian oligarchs with close ties to the Kremlin who would be considered for sanctions to be imposed as a result of Russia’s 2014 attack on Ukraine. (PSR ¶ 19).

That detail was in the indictment.

As SAC, McGonigal supervised and participated in investigations of Russian oligarchs, incl uding Deripaska . Among other things, in 2018, McGONIGAL , while acting as SAC, received and reviewed a then-classified list of Russian oligarchs with close ties to the Kremlin who would be considered for sanctions to be imposed as a result of Russia ‘ s 2014 conflict with Ukraine .

But there’s a detail DOJ has since gotten declassified, one of those “other things” only alluded to in the indictment: before McGonigal started pursuing ties with Albania while still at FBI, he received a report “stating that Deripaska was associated with a Russian intelligence agency.”

Among other things, in May 2017, McGonigal received a then-classified email stating that Deripaska was associated with a Russian intelligence agency, and possibly involved in that agency’s coup attempt in another country. (PSR ¶ 19).

By context, the agency must be GRU and the attempted coup must be Montenegro, a country implicated in McGonigal’s other prosecution — one where Paul Manafort had an extensive history with Deripaska and one mentioned in Andrew Weissmann’s Team M report. See also this post Rayne wrote on related topics.

In other words, this strongly suggests that in the same month when Rod Rosenstein appointed Robert Mueller to investigate how GRU tampered in the 2016 election, McGonigal received a report tying Deripaska to the GRU.

Then he went on to agree to work for Deripaska anyway, hoping to make millions from a guy with a key role in the 2016 attack on American democracy.

And Bill Barr’s flunkie, Seth DuCharme — the guy who helped set up a way for Rudy Giuliani to share information from Russian-backed Ukrainians to be funneled to the Hunter Biden investigation — thinks that McGonigal should be sentenced to probation as a result.

Seth DuCharme Really, Really Wants to Graymail Charles McGonigal’s Path to Freedom

I’m really not surprised that former Bill Barr flunky Seth DuCharme is trying to graymail the government in the SDNY case of his client, Charles McGonigal. That’s a legal strategy whereby you demand so many highly classified documents for trial that the government is faced with the prospect of dismissing a criminal case rather than going to trial.

As a reminder, former Special Assistant in Charge of Counterintelligence in FBI’s NY’s Field Office McGonigal was charged in two indictments: A DC indictment charging him for hiding some meetings with and payments from an Albanian associate while still at the FBI, and a SDNY indictment charging him and Sergey Shestakov with money laundering and conspiring to violate the sanctions imposed on Oleg Deripaska after McGonigal left theFBI.

Almost six months and maybe one or two sealed docket items in, there’s no public sign of a Classified Information Protection Act notice in the DC case (see this post for a background on CIPA).

Not so the SDNY case. That case has been headed for CIPA from the start.

But something funky is going on with the CIPA process, as if there’s a CIPA filter team backstopping the prosecution team.

SDNY must have planned this from the start, and it is driving McGonigal’s team nuts.

It started on February 8, when SDNY filed a CIPA letter, requesting a CIPA 2 conference.

Often, these letters review the entire CIPA process. The one Jay Bratt submitted in the Trump stolen documents case last week, for example, went through Section 1, Section 2, Section 3, Section 4, Section 5, Section 6 (broken down by sub-section), Section 7, Section 8, Section 9, and Section 10.

Not the SDNY one in the McGonigal case. It went through Section 2 — asking for a conference — and then stopped.

The Government expects to provide the Court with further information about whether there will be any need for CIPA practice in this case, and to answer any questions the Court may have, at the CIPA Section 2 conference.

In response, on March 1, McGonigal’s lawyers submitted their own CIPA letter, laying out Sections 1 through 8. Along the way, it described how important Section 4 is and informed Judge

Section 4, which is in many ways the heart of CIPA, governs the methods of disclosure of classified information by the government to the defendant, pursuant to its constitutional and statutory obligations. See 18 U.S.C. § App. III § 4. Section 4 is implicated when the head of the department with control over the matter, and after personal consideration of the matter, invokes the states-secrets privilege to withhold classified information from the defendant in the interests of national security. Doe v. C.I.A., No. 05 CIV. 7939 LTSFM, 2007 WL 30099, at *1 (S.D.N.Y. Jan. 4, 2007); see also United States v. Aref, 533 F.3d 72, 80 (2d Cir. 2008). The states-secrets privilege however is not absolute: it “must—under some circumstances—give way . . . to a criminal defendant’s right to present a meaningful defense.” United States v. Abu-Jihaad, 630 F.3d 102, 141 (2d Cir. 2010). (internal quotations omitted).

Under Section 4, upon a “sufficient showing” by the government, the Court may authorize the government to “delete specified items of classified information from documents to be made available to the defendant . . . , to substitute a summary of the information for such classified documents, or to substitute a statement admitting relevant facts that the classified information would tend to prove.” 18 U.S.C. § App. III § 4. The government makes a sufficient showing that such alternatives are warranted through an ex parte submission to the Court. See id; see also United States v. Muhanad Mahmoud Al-Farekh, 956 F.3d 99, 109 (2d Cir. 2020). Of critical importance to the fairness of the process, the Court may review, ex parte and in camera, the classified information at issue to determine whether and in what form the information must be disclosed to the defendant, and whether the government has truly satisfied its discovery obligations. See, e.g., United States v. Aref, No. 04 CR 402, 2006 WL 1877142, at *1 (N.D.N.Y. July 6, 2006). To assist the Court in this analysis, the defense will provide the Court with its initial view of the scope of material that will be relevant and helpful in the preparation of the defense at the upcoming conference and will supplement that information as appropriate. [my emphasis]

This effectively flipped CIPA on its head, alerting Judge Jennifer Rearden they planned to tell the government what classified discovery should look like, not vice versa.

On March 3, Judge Rearden confirmed she would hold two separate CIPA conferences. The SDNY was held on March 6. On March 7, the day after SDNY’s CIPA conference and the day before McGonigal’s, SDNY wrote to note how McGonigal had flipped on its head.

Although much of McGonigal’s general discourse on CIPA is unobjectionable, the Government believes several points require correction or supplementation.

The whole thing is worth reading: for the description that the US Attorney’s Manual does not convey rights, for the observation that McGonigal had conflated the prosecution team and the Intelligence Community, for the challenge to McGonigal’s claim that the IC must have information about “a recently retired FBI intelligence official being corrupted by a Russian oligarch” (there’s even a long footnote distinguishing the Scooter Libby case, in both Circuit and victim, from this), and for McGonigal’s claim to do in an ex parte Section 2 hearing what normally comes later, in Section 5.

But notably SDNY’s response letter describes that while DOJ must comply with Brady, it doesn’t have to tell a defendant how it is doing so.

Second, although legal rules such as Brady and Federal Rule of Criminal Procedure 16 do obligate the Government to disclose particular information, they do not oblige the Government to explain to defendants how they have satisfied that obligation.

The next day, McGonigal had his CIPA hearing.

On May 8, SDNY filed a short letter informing Judge Rearden that they had declassified the material they had told her they would in their own CIPA 2 hearing and provided it to the defense.

At the March 6, 2023 ex parte conference held pursuant to Section 2 of the Classified Information Procedures Act (“CIPA”) in the above-referenced case, the Government described to the Court certain materials that the Government was seeking to declassify. The Government writes to confirm that those materials have been declassified and produced to the defendants. At this time, the Government does not anticipate making a filing pursuant to Section 4 of CIPA and believes it has met its discovery obligations with respect to classified information.

In saying they didn’t anticipate making a filing pursuant to Section 4, they were undercutting the premise McGonigal’s team had made back on March 1.

Given the letter McGonigal submitted last Friday, June 23, such an approach seems to be driving McGonigal nuts. It describes that it is puzzling and concerning and hard to imagine that there isn’t more.

With respect to the way forward as it pertains to classified discovery, as we noted at our last court appearance, the government has indicated that it “does not anticipate making a filing pursuant to Section 4 of CIPA and believes it has met its discovery obligations with respect to classified information.” See ECF No. 44 at 1. In a subsequent series of conversations, the government informed us, in a general way, that it has satisfied its discovery obligations relating to classified information. The government’s position is perplexing. While it is not surprising that the government does not wish to account for its each and every step in satisfying its constitutional obligations, it is puzzling and concerning that the government would, at this stage, determine that no CIPA Section 4 presentation to the Court is appropriate, when we are a year away from trial and the government’s discovery obligations with respect to Rule 16, the Jencks Act, Brady and Giglio are ongoing. The indictment and the U.S. Attorney’s press release include accusations that foreseeably implicate classified information within each of the four categories of discoverable information. With respect to the category of impeachment material alone, it is hard to imagine a world in which there are no classified materials that touch on the credibility of the government’s trial witnesses (or alleged unindicted coconspirator hearsay declarants), and which would require treatment under Section 4 of CIPA.

It explains that both McGonigal and Seth DuCharme can be trusted with the government’s classified information — after all, McGonigal was only indicted for cozying up to the Russian oligarch he had hunted for years!

Not mishandling classified information.

And Seth DuCharme was, until recently, trusted with Bill Barr’s most sensitive secrets.

Further, it is hard to understand why the government is so reluctant to be more transparent in explaining its discovery practices to the defense in this case. While many national security cases involve defendants with no prior clearances or experience with the U.S. Intelligence Community, and may involve only recently-cleared defense counsel who may be new to navigating the burdens and responsibilities of handling classified information, here, those concerns do not apply. Mr. McGonigal was one of the most senior and experienced national security investigators in the FBI with significant direct professional experience in the areas germane to his requests for assurances about the thoroughness of the government’s discovery analysis. In addition, before moving to private practice, the undersigned counsel served as the Chief of the National Security Section, the Chief of the Criminal Division and the Acting United States Attorney in the U.S. Attorney’s Office in the Eastern District of New York as well as the Senior Counselor to the Attorney General of the United States for National Security and Criminal matters, and has responsibly held TS/SCI clearances with respect to some of the United States government’s most sensitive programs. As the Department of Justice has concluded in re-instating defense counsel’s clearances for the purpose of this case, we are trustworthy. So, here, we have a defendant and defense counsel who are highly respectful and experienced with regard to the protocols for handling and compartmentalizing sensitive classified information, and simply request comfort that the government has indeed done everything it would normally do in a case such as this, with sufficient detail to assess the credibility of the government’s position.

Notably, Mr. McGonigal has not been accused of mishandling classified information in the cases brought against him, and he maintains respect for the national security interests of the United States, as of course do we. In addition, we are not asking the government to disclose to the defense any sensitive sources and methods by which discoverable information was collected—only to provide greater transparency to us, and to the Court, as to how it views its procedural obligations, so that we may consider the fairness and reasonableness of the government’s approach. Mr. McGonigal is personally familiar with this process from his time at the FBI, and it is reasonable for him to expect to be treated no worse than the other defendants who have come before him. To adequately represent Mr. McGonigal, it seems only fair that we be allowed to hold the United States government to the same standards that the defendant upheld as a national security and law enforcement professional, and to make a record of the government’s position.

DuCharme then invoked the Nejad case where, under his former boss’ tenure, a sanctions case blew up because DOJ failed to meet its discovery obligations.

Given DuCharme’s helpful offer to meet in a secure hearing or to submit a more highly classified brief, he’s clearly got something specific in mind.

In sum, if the government could explain, in an appropriate setting, how it determined that it had obviated the need for a CIPA Section 4 proceeding, we likely can avoid speculative motion practice, and the parties and this Court may be assured that we can continue to litigate this case fairly and with the level of confidence to which we are entitled.

[snip]

To the extent the Court would like more detailed briefing on these issues prior to the conference, the CISO has provided to cleared defense counsel access to facilities that would allow us to draft a supplemental submission at a higher classification level.

To be sure: I’m not sure which side is right here, and CIPA always sucks for defendants.

But both sides are dancing around something awfully interesting, as if the circumstances that led to McGonigal’s compromise are different — potentially even significantly worse — than anyone is letting on.

McGonigal’s team repeatedly invoked State Secrets. And DuCharme was the Barr flunky who ran interference so that Rudy Giuliani (whose close associate implicated McGonigal) could seek out dirt from known Russian agents without getting arrested. So the background here could indeed be quite interesting.

Thus far, at least, SDNY is refusing to play that game.

Timeline

January 12: Indictment

February 8: DOJ requests a CIPA 2 hearing

March 1: Seth DuCharme sends his own CIPA letter

March 3: Judge Rearden orders a CIPA 2 hearing

March 7: SDNY writes to refute some of DuCharme’s claims

May 8: SDNY writes to confirm it has declassified the materials described at March 6 CIPA hearing and does not believe it will need a CIPA 4 hearing

June 23: DuChare writes again saying it’s not possible for SDNY to have fulfilled its obligations