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The Frothy Right’s Redaction-Ray Glasses in Defense of Roger Stone

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Update: As Fox first reported and WaPo has written up, the highers up at DOJ have now announced they’re going to change the sentencing guidelines submitted last night. This means they’re arguing that Stone should not have the guidelines sentence submitted by the Probation Office.

As noted yesterday, I think prosecutors larded on upward enhancements in their sentencing memo for Roger Stone — though as Stone’s own sentencing memo makes clear, those enhancements came from the Probation Office.

But in Stone’s argument — and that of his acolyte, Chuck Ross — against those enhancements, they just make shit up, including but not limited to the Mueller Report.

Stone invests much, for example, in a claim that Mueller had access to both Jerome Corsi and Randy Credico (but doesn’t mention that he has repeatedly said he would not cooperate with any investigation, which is precisely the point, and probably one reason prosecutors are asking for a harsh sentence).

As discussed above, the Office of the Special Counsel had access to both Jerome Corsi and Randy Credico, as well as to the communications between Stone and each of them, and found no evidence of any connection to Russia. Stone’s convictions for obstruction of justice and witness tampering should similarly be viewed in the broader context of the investigation. In other words, Stone stands convicted for having sought to conceal information ultimately determined to be of no investigative value. Neither Corsi, nor Credico, nor any of their communications provided any useful information in the investigation into election interference.

Stone’s buddy, Chuck Ross, goes further, utterly misstating the results of various investigations.

Despite Democrats’ and the special counsel’s initial suspicions that Stone conspired with Russia or WikiLeaks, investigators found no evidence that the Trump associate had direct contact with anyone involved in stealing or disseminating Democrats’ emails.

The special counsel’s report said that investigators found no evidence that any Trump associates worked with Russia or WikiLeaks to release Democrats’ emails.

Both are absolutely, brazenly lying about the record.

I guess both stances were necessary to justify Trump’s wails of injustice.

In both the GRU indictment and the Mueller Report, Mueller showed that Stone did have direct contact with someone involved in the dissemination of Democrats’ emails, Guccifer 2.0. And even the unredacted parts of report show that witnesses said Stone had knowledge of emails before they were released and the ultimate transfer of the ones he knew of, the Podesta emails, remained undetermined back in March 2019.

Plus, neither Stone nor Ross have the basis to make such claims, unless they have x-ray vision (and unless Stone violated his protective order by sharing with Ross).

There are significant sections (this is page 57) — which remains redacted for us but which Stone got in unredacted fashion and Judge Amy Berman Jackson reviewed closely in response to Stone’s effort to get the entire report in unredacted fashion — that likely lays out how important it would be to have truthful testimony from Stone.

And there are sections that Stone has not seen in unredacted fashion at all, such the entirety of page 177 (or the ongoing and referred prosecutions, three of which pertain to Stone’s trial).

More amusing still, further claims that Stone makes actually undermine his point. He compares two Senate Intelligence Reports on entirely different subjects to claim his false testimony didn’t harm the House Intelligence Committee’s ability to find the truth.

It is speculation that HPSCI’s Report on Russian Active Measures, released March 22, 2018, is “erroneous.” To the contrary, the “Report of the Select Committee on Intelligence United States Senate on Russian Active Measures Campaigns and Interference in the 2016 U.S. Election,” Volumes 1 and 2, and the Special Counsel’s “Report on the Investigation Into Russian Interference in the 2016 Presidential Election,” Volumes I and II, made findings consistent with those found in the publicly available, redacted HPSCI Report. In other words, even had Stone testified differently and even had Credico testified before HPSCI, the conclusions drawn in its report would not have been materially different.

Thus, Probation’s claim that the HPSCI Report “lacked valuable information which would have been provided by witnesses who chose not to testify” (PSR ¶77) grossly overstates the importance and significance of Roger Stone (and Randy Credico).

Not only has SSCI not released their report on Trump’s possible coordination with WikiLeaks yet (and it is likely to be shown to have shortcomings when it is finally released), but a report released last week (in time to be cited in this memo) suggests there’s far more we don’t know about both WikiLeaks and Guccifer 2.0.

From there, Stone makes much of where Credico’s testimony shows up in the Mueller Report, without mentioning the significant passages where Corsi’s (still redacted to us) testimony makes clear the big questions remaining about Stone’s role.

In the end, Credico was mentioned on five pages of the Special Counsel’s Report, not mentioned in either volume of the Senate Intelligence Report, and not mentioned at all in the HPSCI Majority Report. He was mentioned on two pages of the HPSCI Minority Report, where they noted that Stone identified Credico to the Committee.

Ultimately, though, as has been true in the past, the specific forms of Stone’s denials are as interesting that he’s making them.

In the end, the investigations yielded no evidence of the involvement of any American with the Russian government or any agent operating on its behalf to interfere in the 2016 election. It is also undisputed that Roger Stone had nothing to do with obtaining the compromised emails or providing them to WikiLeaks.

Just on its face and based off unredacted passages, the first is questionable, as the Mueller investigation provided ample evidence that WikiLeaks served as an agent of Russia, and Stone has obstructed the true nature of his ties to WikiLeaks. Given the uncertainty regarding how the Podesta emails got to WikiLeaks — and Craig Murray’s claims to have been involved in that process with someone telling similar bogus stories to the ones Stone is still telling — it is far from undisputed that Stone had nothing to do with the process. Plus, this trial was not about whether he provided them to WikiLeaks; it was about whether he optimized their release via some cutout.

Jerome Corsi’s Descent into Madness

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Among the Mueller documents released to BuzzFeed under FOIA the other day are five of Jerome Corsi’s six interview reports (called 302s). Two 302s from Ted Malloch were released as well. I suspect these were released now so that they could be released after Roger Stone’s trial, but before the gag order Amy Berman Jackson imposed is lifted when Stone is sentenced next month, meaning it was a convenient way to hide information behind b7ABC redactions for an ongoing investigation.

While some are heavily (and in one case, entirely) redacted, the reports read in conjunction with Corsi’s book provide a glimpse of what Mueller’s team was focused on in 2018 as they tried to finalize charges against Roger Stone.

Corsi’s “cooperation” can be broken into three periods. From September 6 to 21, Mueller’s team got Corsi to stop lying about his role in Roger Stone’s attempt to learn about WikiLeaks’ releases and testify to the grand jury that a report he did on August 31, 2016 was a cover story Stone asked him to write on August 30. From then until November 2, Mueller’s team unsuccessfully tried to get Corsi to tell them his (or Stone’s) source of information about WikiLeaks’ drops. In response, they tried to use false statements charges to get him to cooperate, but after the election, Jeff Sessions’ replacement with Big Dick Toilet Salesman Matt Whitaker, and some intervention from Trump, Corsi refused to cooperate on November 26.

While there’s a ton that’s still redacted, it seems that Corsi revealed a lot of details about how he and Stone tried to cover up what they were doing in August 2016, but not the stuff they were trying to cover up. Which may be why the government charged Stone just for that cover-up.

Corsi’s claims about joint defense agreements

In his book, Corsi provides an illogical explanation for why he purported was comparing notes with Trump’s lawyers, but not Stone’s.

September 5, 2018: He immediately precedes the description of his first trip to DC to meet with Mueller’s team with an explanation that Jay Sekulow had reached out to his lawyer, David Gray, to offer to enter into a Joint Defense Agreement. Contextually, Gray’s call to accept Sekulow’s offer may have been placed the night before they went to DC.

September 6: First interview (Zelinsky, Goldstein, Rhee)

In the first interview, Corsi attempted to (and publicly said in advance he would) testify that Stone had asked him to break the law, but he had not done what Stone requested. After going through background about how Corsi met Trump, some people on his campaign, and Stone, Aaron Zelinsky made it clear that they had proof Corsi had done what Stone requested. That led Gray to ask prosecutors excuse Corsi’s false testimony because he didn’t have his emails, so hadn’t been able to review what really happened. After Gray offered to have Corsi restore his emails and review what really did happen, they broke for the day.

The unredacted parts of the 302 contradict Corsi’s claims about two topics: how many FBI Agents were in his interview (the 302 appears to show just two) and who started a discussion about recording the interview. According to the 302, Corsi’s lawyer did — and asked to record the interview himself, which led Mueller’s team to ask whether he or Corsi were taping the interview and whether they had recorded their conversations with the FBI Agent who had picked them up. After this discussion in the 302, there’s a long redaction that may pertain to the terms on which Corsi shared his devices.

Much of the unredacted interview includes Corsi’s background, including how he came to move from WorldNetDaily to InfoWars, though this passage redacts Stone’s name for ongoing investigation reasons.

The unredacted passage describes Corsi’s description of visiting Trump campaign headquarters in June. He does not, at least in the unredacted passages, reveal something that he revealed in his book: that he met Trump there, who said, “That’s trouble there.” The 302 includes a detail that isn’t in his book though: that he had extensive interactions with Michael Cohen, who “relayed messages to Trump” for him.

The 302 redacts Corsi’s description of how he came to know Stone, and his claims about what happened in July and August 2016.

Which leads to this description of interacting with Sam Clovis about Ted Malloch.

Around the same time, Corsi told Sam Clovis about Malloch. Clovis was being ignored by the campaign and his foreign policy team was failing. Corsi never met with Clovis in person, but Clovis knew of Corsi’s work.

In his book, Corsi provides a version of something that’s totally redacted (for ongoing investigations) in the 302: how he claimed he did not respond to Stone’s request to try to find out what Julian Assange had.

“As I result of that experience, I told Stone, ‘No,’ that I would not contact Assange or ask anyone to get in touch with Assange,” I explained. “I knew that from the moment I contacted Julian Assange, I would be under investigation from several different intelligence agencies, including those of the U.S. government.” Besides, I asserted to Mueller’s team, even if Assange had told me what Democratic National Committee emails he had and what he planned to do with them, no one would believe me. I argued that I had decided to wait until Assange published the emails. Then, I could write about the stolen emails without being involved in an investigation.

In response to this lie, Zelinsky told Corsi they had proof that he did actually respond (which was an email he forwarded to Ted Malloch on July 25).

The 302 includes (but redacts) some things Corsi said to the FBI Agent who drove him back to his hotel; he said he asked them for help figuring out what proof Zelinsky had that he had actually responded.

In Corsi’s book, he explains how the night after he testified, one of Stone’s lawyers called David Gray. Corsi describes the dilemma he faced about whether to respond (which, he claimed, he worried would leak) or not to (which, he worried, would make Stone think he flipped on him). Ultimately they claim they told Stone’s lawyer, “We decline, for now,” to tell him what happened. Even assuming this is true, Corsi doesn’t reveal whether they later did tell Stone what was going on in his interviews. Effectively Corsi would like you to believe he had no problem sharing notes with Trump but he thought it would be a problem to share them with Stone.

The day after his interview, Agents return his devices, and he describes restoring his emails from 2016. He describes “discovering” the July 25 email (but not, allegedly, the August 2 one or an August 15 one that clearly pertains to WikiLeaks files, nor an August 16 one to Ted Malloch discussing Putin). He also “discovers” an August 15 story he wrote about Stone.

Note: it’s bullshit that he didn’t have the July 25 and August 2 emails. On April 3, 2017, Stone lawyer Grant Smith had sent Corsi what he claimed were the only two emails discussing a request between them.

This got sent while Corsi and Stone were further elaborating on his cover story, so might have been interpreted as a code not to mention Corsi’s response or an August 15 email from him reflecting further knowledge of what emails would drop.

September 17: Second interview (Zelinsky, Rhee, Goldstein)

In any case, at the beginning of the next interview on September 17, per Corsi’s book, Zelinsky told Grey they have specific knowledge that Corsi predicted the Podesta emails and had some effect over their release in October.

In this interview, per his book, Corsi admits he told Stone that the Podesta emails were coming, but claimed not to know who told him about them. The unredacted parts of the 302 seem to show some of what explanation he gave, including his ties to Ted Malloch. The 302 shows Corsi admitting he spoke with Malloch (on Facetime), did not recall Malloch ever providing information from Assange.

The 302 describes Corsi claiming, “[M]any people were interested in Corsi getting in touch with Assange.” That’s probably true, as his WND editor wanted him to interview Assange. But I wonder if it reflects speaking to Trump about it.

Corsi also explained that he had additional ties to the Trump campaign, via Kellyanne Conway and Stephen Miller, the latter of whom is particularly interesting, given his ties to white supremacist culture.

The 302 redacts all of Corsi’s bullshit claims not to know who told him about the Podesta emails.

September 21: Third interview (Zelinsky, Rhee, Goldstein), proffer signed

Corsi’s third interview took place at the DC Courthouse, just before he testified for half an hour before the grand jury. Over the course of the interview, his lawyer asked for a proffer to protect Corsi for being charged with suborning perjury for writing part of Stone’s cover story.

The interview started with Corsi repeating his bullshit story about telling Stone that Podesta’s emails were coming (which is redacted in the 302), but claiming that he didn’t know his own source for that information.

Corsi said, as of August 2016, he had watched and seen Podesta for a long time. Corsi thought WikiLeaks would release Podesta’s emails serially in order to continually feed the news cycle, as opposed to dropping all the information at once. Corsi also thought Julian Assange (Assange) would designed the release of Podesta’s emails to be an “October surprise.”

After that the interview turned to Corsi’s claims in an email (which Mueller was never able to determine the truth of) to have been responsible for WikiLeaks releasing the Podesta emails to stomp on the Access Hollywood video. In this interview, he stated he had no input over that release.

The 302 redacts the discussion of the cover story Corsi helped craft on August 30, but shows the process of Mueller’s team verbally and then later writing up a proffer protecting Corsi from any criminal exposure for doing that.

10:50 AM: SCO enters into a verbal proffer (Corsi’s lawyer realizing his client was at risk for cover-up)

Corsi’s discussion of Ted Malloch is totally redacted (Corsi told Malloch in August that he knew the Podesta emails were coming).

There’s a partly redacted discussion of Corsi’s relationship to someone whose name is redacted. It likely relates to Brexit (because it mentions the EU), and it appears someone offered Corsi a job, which Corsi claims felt like a con-job.

Then interview moves to someone Russian he knows (redacted with b7A but not B, suggesting it was counterintelligence). That discussion appears before the 302 notes that, “Corsi said many people contact him and he doesn’t always know who they are.”

Some of the discussion about October 7, the Podesta email release, is redacted. But there’s a great deal of bullshit claims about how Corsi got the emails released via the strength of his own tweeting.

Corsi was convinced, however, it was through his efforts that WikiLeaks released Podesta’s emails when they did.

Finally, this passage is likely a reference to Stone trying to coach Corsi’s testimony, though the redacted name is likely not Stone’s (because it’s not redacted for b7ABC). Given that one of Stone’s lawyers called him on September 6, it seems likely it was one of the lawyers (possibly Grant Smith by length and his seeming role in Stone’s cover stories). Note he may be trying to move Corsi back to the Credico cover story.

This passage — and the references to Trump getting reports on his testimony — is all the more weird given that his lawyer probably was in close contact with Sekulow during this process (Sekulow doesn’t seem to fit based on length).

After Corsi gave testimony about the August 30 cover story to the grand jury, Mueller’s team told him he might be called back to talk more about his source.

October 22: In the middle of this process, I wrote a post arguing that Stone and Corsi appeared to have not just gotten news of Podesta’s emails, but got the actual emails in advance. I’m sure Mueller’s team had far more evidence to get there on their own, but I find this post worth marking.

October 25:  Before they brought Corsi back again, they interviewed Rick Gates on WikiLeaks stuff, including asking why he got sent Corsi stuff. (PDF 39)

October 29: The FBI finished the first batch of Corsi’s 302s, from September 6, 17, and 21, on October 29, also before he was called back.

October 31: Proffer continued.

DOJ did not release the October 31 Corsi 302 (though it’s supposedly going to come out in a January 17 production). Corsi’s book discusses his testimony from October 31, November 1, and November 2 all in one bunch. But it seems clear that on October 31, the prosecutors showed him more records showing that he was lying about his source for Podesta.

November 1 (Rhee, Goldstein, Zelinsky, Atkinson for some of the interview): Proffer continued

This is the one interview where Rush Atkinson showed up for parts of the interview, which is interesting given that he worked on the Russian side of the investigation.

The interview starts with Corsi shifting his story yet again, claiming he did not remember a lot of what he was shown the day before, so he “realized that the way he wanted to remember things was not actually how things happened.” The interview discusses a bunch of redacted stuff, then again Corsi admitted he, “had been lying to himself to believe his own cover story.”

The discussion then turns to Ted Malloch, interspersed with discussions about WND. He clearly invents another story about how he learned about Podesta’s emails (which Corsi lays out in his book). After more redacted material, the 302 reveals that, rather than (or in addition to) asking Assange about Bernie’s brother on August 16, 2016 — a request Stone had made of him in July — he also mentioned Putin. (!!!)

Corsi did not remember sending Malloch an email on August 16, 2016 about Putin.

This leads directly into a discussion claiming his October 6, 2016 story on John Podesta — which I argued in my October 22 post suggested Corsi had already seen the Joule Holding emails that WikiLeaks would not release until October 11 — is just his August 31 cover story report.

Corsi published the August 31, 2016 memo on October 6, 2016. At that time, he still held himself out as the connection to WikiLeaks. The trigger for the release of the article was the publication of an article about [Paul] Manafort and [Viktor] Yanukovych. Corsi wanted to counter it with a story about Podesta, but he really wanted to provide stimulus to Assange to release whatever he had on Podesta. Corsi was angry with Assange for not releasing emails on October 4, 2016.

The interview then returns to events of October 7, with Corsi again offering some story for how he forced Assange to optimize the release of those Podesta emails. The unredacted parts of this show Corsi equivocating about what he did and did not have a clearly memory of, just as he lays out in his book. But in this case, he admits he did not deserve credit for optimizing the release; the paragraph is half redacted, suggesting maybe he says Stone should get credit for it.

The interview reveals that Corsi met with Malloch and another person on January 7, 2017; but he did not recall any conversation about WikiLeaks, Stone, or Assange

From there, prosecutors made Corsi walk though the March 2017 version of his August 31 report to explain where each bit came from.

The 302 then describes Corsi [going] through the [March 2017 cover story] “Blame Me!” article and said [redacted] Paragraphs three through six were pulled from the Schweitzer report. Over a page is redacted here, which probably pertains to the ongoing cover-up that he and Stone engaged in.

The interview ends with a discussion of his work changes, most notably the move from WND to DCI and InfoWars, which paid better. Whereas an earlier 302 redacts that it was Stone who got Corsi his job, this one reveals that, “Stone told Corsi that WND was not big enough for him and he should work for Jones.” He also revealed he “did not get paid by InfoWars directly.” There were reports that prosecutors were investigating whether this was a means to bribe Corsi to remain silent, which they would later return to. Corsi stopped working for DCI in March or April 2018.

Interspersed in all this, Corsi described Malloch trying to get him involved in a Turkey contract.

November 2: Proffer continued (Rhee, Zelinsky, entirely redacted)

The November 2 302 is entirely redacted (and shorter — just a page long), aside from the boilerplate language that revealed that for the first time, Goldstein did not attend the interview, perhaps because Corsi was just flinging bullshit on most topics.

November 6: Election day.

November 7: November 2 Corsi 302 finished, Sessions gets fired.

November 8: On his podcast, Corsi suggests something big is going down with Mueller/

November 9: Corsi appears before the grand jury and doesn’t give the answer — regarding how he learned that WikiLeaks would release John Podesta’s emails — that prosecutors expected; they told him they were going to charge him with perjury.

November 12: On his podcast, Corsi says he expects to be indicted; a huge media frenzy follows.

November 13: The media frenzy continues until (Corsi claims), moments before starting an MSNBC interview, his lawyer tells him to call it off.

November 13: Plea first offered.

November 14: November 1 Corsi 302 finished.

November 15: Trump tweet apparently reflects Corsi’s claim of prosecutors yelling at him to give specific testimony they seek.

November 18: According to Corsi’s book, he wrote his delirious rant on how he guessed the Podesta emails would be dumped on this date. It is clearly a cover story preparing to reject the plea deal.

November 23: Corsi goes to the WaPo (off the record), AP, and MSNBC (the latter two both on the record) to tell them he is in plea negotiations.

November 25: Zelinsky writes letter on plea deal.

November 26: Corsi announces he has been offered, but will reject, a plea deal to one count of perjury, accuses Mueller of Gestapo tactics, and claims he will file a complaint with Whitaker.

As I disclosed in 2018, I provided information to the FBI on issues related to the Mueller investigation. 

While Republicans Continue to Claim Collusion Didn’t Happen, George Papadopoulos Labeled Roger Stone’s Actions as Treason

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As part of its claim that the FBI withheld exculpatory information in Carter Page’s FISA application, the DOJ IG Report described George Papadopoulos’ interactions with Stefan Halper in mid-September 2016. When Halper twice asked Papadopoulos, “whether help ‘from a third party like Wikileaks for example or some other third party like the Russians, could be incredibly helpful’ in securing a campaign victory,” Papadopoulos categorically denied the campaign would reach out to WikiLeaks.

Well as a campaign, of course, we don’t advocate for this type of activity because at the end of the day it’s, ah, illegal. First and foremost it compromises the US national security and third it sets a very bad precedence [sic] …. So the campaign does not advocate for this, does not support what is happening. The indirect consequences are out of our hands…. [F]or example, our campaign is not. .. engag[ing] or reaching out to wiki leaks or to the whoever it is to tell them please work with us, collaborate because we don’t, no one does that…. Unless there’s something going on that I don’t know which I don’t because I don’t think anybody would risk their, their life, ah, potentially going to prison over doing something like that. Um … because at the end of the day, you know, it’s an illegal, it’s an illegal activity. Espionage is, ah, treason. This is a form of treason …. I mean that’s why, you know, it became a very big issue when Mr. Trump said, “Russia if you’re listening …. ” Do you remember? … And you know we had to retract it because, of course, he didn’t mean for them to actively engage in espionage but the media then took and ran with it.

When asked a second time, Papadopoulos called that “collusion.”

No one’s looking to … obviously get into trouble like that and, you know, as far as I understand that’s, no one’s collaborating, there’s been no collusion and it’s going to remain that way. [my emphasis]

When Papadopoulos has described this previously, he claimed he also denied having anything to do with Russia. If he did, it would be a lie. The very dates he was in London meeting with Halper, Papadopoulos had intended to conduct a secret meeting with Russia, something he failed to fully explain to Mueller. Even two weeks later, Papadopoulos was sharing an anti-sanction column in the Russian site Interfax with Joseph Mifsud.

It’s unclear whether Papadopoulos really believed that the campaign was not and would not coordinate with WikiLeaks. The most likely person he would have told that Russia planned to drop emails on Hillary back in April 2016 would be Stephen Miller, whom he emailed the day after learning of the emails and said, “Have some interesting messages coming in from Moscow about a trip when the time is right.” According to Rick Gates’ testimony at Roger Stone’s trial, Miller was one of several people with whom he brainstormed months later on how to optimize the WikiLeaks releases.

Q. Without saying what they said, who was involved in those brainstorming sessions about what to do if information was leaked?

A. Sure. It was Mr. Manafort; myself; Mr. Jason Miller, who was our director of communications; and Mr. Stephen Miller, who was our director of policy at the time.

According to the DOJ IG Report, the investigation team believed Papadopoulos had rehearsed his answer to Halper (and indeed, the Mueller Report makes clear that in the wake of Trump’s “Russia, are you listening” comment, everyone but Manafort stopped pursuing previous plans to reach out to Russia).

Case Agent 1 told the OIG that Papadopoulos’s “response to the direct questions seemed weird” to the Crossfire Hurricane team because it “seemed rehearsed and almost rote.” Case Agent 1 added that at these points in the conversation, Papadopoulos “went from a free-flowing conversation with [Source 2] to almost a canned response. You could tell in the demeanor of how [Papadopoulos] changed his tone, and to [the Crossfire Hurricane team] it seemed almost rehearsed.”

Whether or not he lied about knowing about “collusion,” which he defined to include reaching out to WikiLeaks, Papadopoulos defined doing so as treason. He’s wrong, but that is, apparently, what he said.

And less than a month ago, the government laid out evidence that Roger Stone had attempted to reach out to WikiLeaks via cut-outs, including Jerome Corsi. At the trial, the government did not disclose how Corsi and Stone had learned of the John Podesta emails in advance, but Stone invented yet a new cover story for the trial to continue to deny that he had done so, this time that Corsi had been lying about obtaining such information, just like Credico.

Absent a pardon, Stone is headed to prison because he refused to reveal what really happened in July and August 2016.

And whatever it is that Stone is hiding, what’s clear is he definitely tried to reach out to WikiLeaks, something that Papadopoulos claimed to consider treason.

Stone did so with the enthusiastic encouragement of Donald Trump.

During the impeachment “debate,” Republicans on the House Judiciary Committee just repeated over and over that the Mueller Report showed no “collusion.” But the facts show that, at least according to Papadopoulos’ definition, it did.

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

The Trump-Mueller Answer the Stone Trial Really Implicates: Pardoning Assange

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A bunch of media outlets responded to Rick Gates’ testimony in the Roger Stone trial — describing how Donald Trump got off a call with Roger Stone on August 31, 2016 and told him WikiLeaks would release more emails — by arguing that Gates’ testimony is proof that Trump lied to Robert Mueller about the subject.

I recall that in the months leading up to the election there was considerable media reporting about the possible hacking and release of campaign-related information and there was a lot of talk about this matter. At the time, I was generally aware of these media reports and may have discussed these issues with my campaign staff or others, but at this point in time – more than two years later – I have no recollection of any particular conversation, when it occurred, or who the participants were.

I do not recall being aware during the campaign of any communications between the individuals named in Question II (c) [Roger Stone, Donald Trump, Jr., Paul Manafort, or Rick Gates] and anyone I understood to be a representative of WikiLeaks or any of the other individuals or entities referred to in the question.

[snip]

I was in Trump Tower in New York City on October 7, 2016. I have no recollection of being told that WikiLeaks possessed or might possess emails related to John Podesta before the release of Mr. Podesta’s emails was reported by the media. Likewise, I have no recollection of being told that Roger Stone, anyone acting as an intermediary for Roger Stone, or anyone associated with my campaign had communicated with WikiLeaks on October 7, 2016.

I do not recall being told during the campaign that Roger Stone or anyone associated with my campaign had discussions with any of the entities named in the question regarding the content or timing of release of hacked emails.

I spoke by telephone with Roger Stone from time to time during the campaign. I have no recollection of the specifics of any conversations I had with Mr. Stone between June 1.2016 and November 8, 2016. I do not recall discussing WikiLeaks with him, nor do I recall being aware of Mr. Stone having discussed WikiLeaks with individuals associated with my campaign, although I was aware that WikiLeaks was the subject of media reporting and campaign-related discussion at the time.

But these are very carefully crafted answers, as they disclaim any memory of the requested details rather than — ever — claiming they didn’t happen. Unlike Trump’s answers on Trump Tower Moscow, he did not subsequently make clear he has distinct memories of Roger Stone’s boasts about having advance knowledge of WikiLeaks releases, both publicly and in private calls with Trump.

So I don’t really think that’s the most important Trump response given evidence presented at the Stone trial. Rather, a more potentially damning one pertains to the way a shared support for Julian Assange lurks behind the relationship between Randy Credico, Margaret Ratner Kunstler, and Roger Stone.

Credico wanted — and still wants — to rebut any “collusion” claims

Credico had long been hostile to any investigation of Stone’s ties to Assange. When Jerry Nadler started asking questions (of Jim Comey) about Stone’s ties to Assange in September 2016, Credico accused Nadler of McCarthyism.

In early January, 2018, Credico texted to Stone that he would do an interview with Michael Isikoff to make it clear that Assange was “not colluding.”

Much later — indeed, to this day — Credico would go to great lengths to try to rebut claims that Assange was “colluding.”

Credico’s WikiLeaks focus in responding to the subpoena

When HPSCI asked for first voluntary then compelled testimony. Credico responded by sharing the subpoena with a network of people — including Craig Murray, Ray McGovern, Jess Radack, Thomas Drake, Bill Binney, Stefania Maurizi, Colleen Rowley, and Noam Chomsky — with an affinity and in many cases close ties to WikiLeaks. Stone was, at that point, just one of 18 people Credico thought to alert, and the defense made much of the other recipients of Credico’s email releasing the subpoena.

Credico would go on to do as Stone had requested in response to the subpoena, plead the Fifth to avoid testifying before the House Intelligence Committee. On the stand at trial, Credico explained that a “lot of people” had a role in that decision, “amongst them, Mr. Stone.”

The defense, however, tried to suggest that Kunstler (who testified she represented WikiLeaks as an organization and had represented Sarah Harrison for four years) had a role in this decision. They got Credico to admit that Kunstler gave him legal advice, but was not his lawyer. And they got Kunstler to admit that she said she was at a meeting with several lawyers when Credico got a subpoena. That falls far short of saying she advised him to dodge the subpoena, but that’s certainly what the defense tried to insinuate.

Even if she had suggested that Credico, who is a friend of hers, should avoid testifying, none of that is untoward (it’d be the equivalent of bmaz telling me to shut the fuck up about any of my own legal issues, which he does constantly). It just suggests that Credico’s immediate focus in 2017 was on protecting Assange, not necessarily protecting Stone.

The shared interest in pardoning Assange

But this whole relationship was intertwined with an apparent shared interest in pardoning Assange. Right in the middle of Credico’s claims about what WikiLeaks was up to in early October 2016, for example, on October 3, he pushed Stone to get Trump to back asylum for Assange.

Then there are the exchanges on the topic that MoJo reported on a year ago from early January 2018.

In the wake of Stone’s successful effort to get Credico to plead the Fifth, the President’s rat-fucker suggested that if Credico publicly revealed that he couldn’t be Stone’s back channel, it might screw up efforts he claimed he was making to get Assange a pardon.

They resumed the discussion about a pardon several days later, when Stone sent Credico Jerome Corsi’s story on Ecuador’s grant of a diplomatic passport to Assange.

Remarkably, given what has transpired since, Credico informed Stone that the British government was not honoring the diplomatic passport, observed that “Infowars ” — which in this case would be Corsi — “doesn’t know what they’re talking about,” then taunted, ‘Maybe your back Channel knows more than I do.”

The current operative story, of course, is that Corsi was the backchannel, though Credico wouldn’t have known that at the time.

It’s certainly possible that Stone was blowing smoke, raising something he knew Credico cared deeply about, pardoning Assange, to get him to toe the line. It’s likely, too, he was just taking reporting on efforts made in late 2017 to liberate Assange and claiming credit for it.

But at the very least, it shows that Stone used a pardon for Assange — something Credico still spends a lot of time pushing — as leverage to try to get Credico to sustain his cover story.

Kunstler was a key point of pressure for Stone

Which is one of the reasons I find the new details about how Stone’s threatened Kunstler to be interesting.

Per evidence submitted at trial, Stone used several different tactics to pressure Credico to testify (or not) in certain ways, including:

  • Telling him to take the Fifth
  • Telling him to pull a Frank Pentangeli (meaning, to testify falsely)
  • Offering to pay for his lawyer in late 2017
  • Sending him some work in early 2018
  • Threatening Bianca (a threat Credico said he didn’t take very seriously)
  • Making threats of violence of exposure
  • Threatening Margaret Kunstler

Ultimately, per his testimony, Credico changed his stance on testifying so as not to be Stone’s fall-guy (and because he didn’t want to be blamed for Trump’s election). But according to (live texts of) his testimony, a really big part of that change was that Stone threatened Kunstler. Credico testified he, “didn’t want to drag her name though this.”

On March 10, 2018, Stone responded to Credico alerting him that he was going to go on Chris Hayes’ show by forwarding the September 2016 email chain in which Credico feigned helping Stone figure out if WikiLeaks had certain Libya-related emails and threatening, “If you go on with Chris Hayes be sure to mention this,” which would have exposed that Credico did at least appear to respond to Stone’s request for help. On May 21, 2018, Stone responded to a Credico email saying “you should have just been honest with the house intel committee” by threatening, “Keep running your mouth and I’ll file a bar complaint against your friend Margaret.”

Mostly, raising Kunstler would invoke two details Stone knew about. First, some time on or before August 25, 2016, Kunstler passed on Credico’s request to have Assange on his drive time show. She was the person who got WikiLeaks to consider the August 25, 2016 interview that lay a the core of Credico and Stone’s wavering claims that Credico might have inside knowledge. On the stand, Kunstler said that was the first and only time she passed on a request to WikiLeaks on Credico’s behalf.

Then, after some badgering from Stone, on September 2016, Credico sent her the package of information Stone had shared on what he claims was an effort by Hillary to prevent Moammar Qaddafi from stepping down to avoid the Libyan war, BCCing Stone. Significantly, Stone’s lawyers made a point of getting Kunstler to clarify that she did not learn that email had been BCCed with Stone until prosecutors showed it to her in an interview. And it’s true that nothing about the package would have identified it as a Roger Stone smear.

Kunstler testified that she ignored the email and got pretty pissed about it, because that’s not the kind of thing she would do with clients.

Those two details made it clear that Kunstler was Credico’s link to Assange, that she had succeeded in sharing a request from Credico when it served Assange’s interest, but that she wouldn’t consider serving as a source of information about Assange and upcoming leaks.

But in a little noticed response, Credico revealed that he put Stone in touch with Kunstler after the election to talk about a pardon for Julian Assange. I double checked. That happened in late 2016.

Again, there’s absolutely nothing untoward about this. Kunstler represented WikiLeaks and any smart lawyer would push for a pardon for her client. Credico’s relationship with Stone was already public (though it’s unclear whether Kunstler knew of the whole back channel stuff yet, given that she may not  have known the Libya request came from Stone). But it adds an important wrinkle to the year-long Trump flunkie effort to get Assange a pardon.

We know that sometime after the October 2016 WikiLeaks dump, Mike Flynn was part of a conversation where Trump’s team discussed reaching out to WikiLeaks (something that didn’t get mentioned at all at Stone’s trial). Credico’s introduction of Kunstler to Stone would have come around the same time that Assange himself DMed Don Jr asking to become an Ambassador of sorts.

Hi Don. Hope you’re doing well! In relation to Mr. Assange: Obama/Clinton placed pressure on Sweden, UK and Australia (his home country) to illicitly go after Mr. Assange. It would be real easy and helpful for your dad to suggest that Australia appoint Assange ambassador to DC “That’s a really smart tough guy and the most famous australian you have! ” or something similar. They won’t do it, but it will send the right signals to Australia, UK + Sweden to start following the law and stop bending it to ingratiate themselves with the Clintons. 12/16/16 12:38PM

Assange renewed that request as part of his Vault 8-based extortion in November 2017.

All of which is to say there’s one more instance where someone in Trump’s orbit discussed a pardon for Assange. Because it involved Kunstler, it tied the discussion even more closely to Stone’s claims to have optimized WikiLeaks’ releases.

That may be one explanation for Stone’s lawyers’ efforts to make it clear that Kunstler couldn’t have known that Stone had made a request that got presented to her, because that would make it look like a quid pro quo, a request for Stone to return the favor.

Trump may have told the truth — but that doesn’t rule out a quid pro quo with WikiLeaks

Which leads me to the Mueller question that I think most enticingly ties to details revealed at trial.

Trump was asked whether he had ever discussed a pardon for Julian Assange before his inauguration, and he offered the same kind of non-responsive answer he offered to all the other Mueller questions.

Did you have any discussions prior to January 20, 2017, regarding a potential pardon or other action to benefit Julian Assange? If yes, describe who you had the discussion(s) with, when, and the content of the discussion(s).

I do not recall having had any discussion during the campaign regarding a pardon or action to benefit Julian Assange.

Notably, however, because Trump adhered to a practice he inconsistently used (in answering questions only as they applied to the campaign, but not the transition), his answer doesn’t actually deny a key possibility: that he and Stone (and Don Jr) discussed a pardon for Assange during the transition period.

This doesn’t even have to be an instance where Trump did not recall something that happened during the election. If Trump entertained a Stone brokered pardon request in the months after Assange helped him win the election, it would be easily the most damning of Trump’s many abuses of clemency, because it would appear to be a clear quid pro quo for election assistance.

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

It Doesn’t Matter for Prosecutors’ Case that Randy Credico Was Bragging or (Purportedly) Drunk

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Some reporters appear to be getting their understanding of the Roger Stone trial from Stone’s defense attorneys rather than from actually reading the indictment and the trial exhibits, because they report as truth that it will harm prosecutors’ case if Credico can be shown to be drunk or bragging when he suggested to Stone he had ties to Julian Assange. Here’s the NYT:

Complicating the prosecution’s case, both men appear to have repeatedly lied to and about each other. And both appear to have exaggerated their connections with WikiLeaks, either privately or publicly.

Mr. Credico testified that many of his claims regarding WikiLeaks amounted to “braggadocio” and that he repeatedly overstated his access to Mr. Assange partly as a way to “one-up” Mr. Stone.

While it is true that Stone’s lawyers are arguing that poor little Roger with the Nixon-tattoo Stone got lied to by both Credico and Jerome Corsi, that defense doesn’t actually exonerate Stone of the charges against him (which is noteworthy in and of itself). Stone is not accused of having a back channel to WikiLeaks, which claims about Credico’s credibility might undermine; he’s accused of lying about his claims about having one and who that is. Most notably, Stone is accused of lying about how he communicated with his claimed back channel(s), and no attacks on Credico can make the abundant correspondence between Stone and Credico disappear.

Consider the evidence presented to prove that Stone lied just last week, on top of what was already referenced in the indictment (which I laid out here).

1. STONE testified falsely that he did not have emails with third parties about Assange, and that he did not have any documents, emails, or text messages that refer to Assange.

In addition to having Credico and Steve Bannon introduce their own emails (and texts in the case of Credico) that mention Assange, FBI Agent Michelle Taylor introduced the Erik Prince texts described in the indictment that reference Assange (and confirm that those texts were with Prince), as well as an October 3, 2016 Stone email to Prince stating that he, “Spoke to my friend in London last night. The payload is still coming.”

2. STONE testified falsely that his August 2016 references to being in contact with the head of WikiLeaks were references to communications with a single “go-between,” “mutual friend,” and “intermediary,” who STONE identified as Credico.

As noted, the only evidence that Credico and Stone spoke about Assange post-dates the days in early August when Stone claimed to have an intermediary. Multiple comms from Credico show him pointing that out to Stone over and over and over (once even before the election and more explicitly in early 2017): he couldn’t be Stone’s intermediary because all their discussions of Assange post-date Stone’s claims to having an intermediary. Indeed, Credico and Stone even spoke about Stone’s intermediary when Stone appeared on Credico’s show on August 23, 2016.

To disprove that Credico could not be his intermediary, Stone would need to introduce evidence he and Credico talked about WikiLeaks before that. All Stone offered to disprove that were some Credico tweets from 2016 dated June 17, July 22, and July 24, none of which were addressed to Stone and only the first of which addresses upcoming email drops.

In addition, the government introduced communications that make it clear Stone was aware of Corsi’s import before he testified. For example, on March 24, 2017, Stone sent Corsi and Gloria Borger his attorneys’ letter to HPSCI stating he was “anxious to redress the false and misleading way he has been portrayed by some on the Permanent Select Committee.” That letter got sent one day after Corsi had posted the cover story he and Stone started working on the previous year.

Further, one of the most damning exhibits introduced last week shows that on October 19, 2017, Stone forwarded Credico an email from his attorney, Grant Smith, with the subject line “Credico Paragraph.” The email purported to share the paragraphs in an October 13, 2017 letter to HPSCI naming Credico as Stone’s source. But the version Smith sent to Stone which got forwarded to Credico materially differs from the one sent to HPSCI, in part by offering a half paragraph of complimentary language on Stone’s relationship with Credico that wasn’t actually included in the letter to HPSCI.

But it also includes this paragraph:

Mr. Stone noticed Credico had traveled to London on at least two occasions and conducted two landmark interviews with Julian Assange on WBAI. To be absolutely clear, Credico was only asked to confirm for Mr. Stone that the postings and interviews by Assange in which he claimed to have the Clinton data ,both of June 21 [sic], were accurate. Mr. Credico never said he knew or had any information as to source or content of the material. Mr. Credico never said he had confirmed this information with Mr. Assange himself. Mr. Stone knew Credico had his own sources within WikiLeaks and is credible. Mr. Stone concedes that describing Credico as a go-between or intermediary is a bit of salesmanship for his InfoWars audience but the confirmation by Credico turned out to be 100 % accurate. [emphasis original]

The unitaliczed text does show up in a form in Stone’s letter, albeit phrased in a way to downplay any potential request from Stone. But the italicized language does not show up in Stone’s letter. It’s effectively a script for Credico, one that might placate Credico’s concerns about Stone overstating his knowledge, but one that was false on its face.

3. STONE testified falsely that he did not ask the person he referred to as his “go-between,” “mutual friend,” and “intermediary,” to communicate anything to the head of Organization 1 and did not ask the intermediary to do anything on STONE’s behalf.

As I noted in this post, there are emails showing Stone requested both Corsi and Credico do things with regards to Assange. Two emails introduced last week prove that Stone knew he had such emails. On April 3, 2018, Stone’s lawyer Grant Smith wrote Stone cc’ing Corsi stating, “At Roger’s request, I attach the only 2 emails on the subject between the two of you.” That wasn’t true: An August 15, 2016 Corsi email stating, “More to come than anyone realizes,” is almost certainly also a reference to stolen emails.

Tellingly, the very next day, April 4, 2018, Stone sent Credico an email saying, “Everything I know about the WikiLeaks disclosures I heard from you and can prove it.”

More damning still, on March 10, 2018, Stone forwarded Credico the thread of emails, dating from September 2016, in which he requested that Credico ask Assange if he had emails on Libya. The thread includes Credico claiming, “I asked one of [Assange’s] lawyers,” a reference to Margaret Ratner Kunstler. Stone sent it as a threat — and indeed, his threats to attack Kunstler were probably among the most effective Stone used with Credico, per Credico’s testimony. But by sending it (this time not even involving his lawyers), Stone proved that he knew of the request he made of Credico in September 2016, and knew he had communications reflecting the request.

4. STONE testified falsely that he and the person he referred to as his “go-between,” “mutual friend,” and “intermediary” did not communicate via text message or email about WikiLeaks.

As the above shows, Stone not only did communicate extensively with Credico — his claimed intermediary — via text and email, but he was aware of it. Likewise, he was aware that he had communicated via email, the intermediary the government suggests he was trying to hide, with Corsi.

5. STONE testified falsely that he had never discussed his conversations with the person he referred to as his “go-between,” “mutual friend,” and “intermediary” with anyone involved in the Trump Campaign.

Ultimately, the government argues that this trial is going to be about Stone trying to hide how damning all this is for Trump, and it’s in Stone’s communications with the campaign that are most damning. Stone already proved he knew of the Bannon email introduced at trial last week when he shared it after Bannon went to the NYT. Much of the rest of the proof of this will show up in this week’s testimony, not least from Rick Gates.

Which is why Stone’s current defense story is so interesting: because it highlights that Stone continues to lie to cover up the Trump campaign’s knowledge of all this. By suggesting that Stone believed Corsi was also an intermediary for him, Stone’s lawyers are basically pleading guilty to several of the false statements charges against Stone — lies 1 through 4 as numbered here — as part of his defense! Effectively, this is not a defense to the charges against Stone. It is, instead, a new lie, meant to deny what he did not in his HPSCI testimony, that he had an intermediary, as a retreat position on his larger lie, that Trump didn’t know about any of this.

That Stone is still obstructing that fact is made all the more clear by two other exhibits introduced last week.

First, the government introduced the letter by which Stone cleaned up his lie denying speaking to any Russians. On June 15, 2018, after Michael Caputo described his testimony with Mueller’s team, Stone’s lawyer, Grant Smith, sent a letter to Devin Nunes admitting he and Stone entertained Henry Greenberg’s (whom Caputo correctly introduced to him as a Russian) offer of dirt on Hillary, only to say Stone and Trump wouldn’t spend money for such things.

Smith sent another letter on December 20, 2018, in which he asserted that, “Mr. Stone’s testimony provided during the interview was forthcoming, truthful, and wholly consistent with his many detailed public statements on the matters being investigated.” In other words, as recently as December of last year, Smith reaffirmed that Stone’s claims to have one intermediary who was Credico remained the operative story.

Given that Stone cleaned up the Greenberg story, it raises real questions why, at a time when Stone knew people had testified against him and after months during which emails proving Stone’s lies about having communications about Assange were lies had been aired publicly, Stone didn’t clean up his intermediary story in the December letter by saying what his attorneys are now arguing in court, that an epic rat-fucker was duped by a comedian and a hoaxster. That would have saved him a year of legal fees and a significantly diminished ability to work.

But it would have served to acknowledge that Corsi was an interlocutor before Robert Mueller closed up shop.

Update, 2/17/20: Fixed date on Credico email.

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

Rick Gates Got Sent Two Key Jerome Corsi Posts

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Last year, as Mueller was managing the failed Jerome Corsi cooperation deal, I did a series of posts suggesting that Corsi and Stone seemed to have gotten advanced information about the John Podesta email dump. I argued that, in part, because the two started crafting an elaborate Matryoshka cover-up by the end of August to excuse away Stone’s “time in the barrel tweet.” More importantly, Corsi wrote a piece picking up what the two men had been plotting in August on October 6, seemingly anticipating John Podesta documents that would only be dumped on October 11. In other words, Corsi and Stone seemed to know by mid-August what WikiLeaks would drop in October.

I posted the first of those posts on October 22.

Three days later, Mueller’s team interviewed Rick Gates (PDF 39). According to the headings in the interview, which were dates, the interview traced the key milestones of the WikiLeaks dump:

  • June 12, 2016 to July 22, 2016
  • Post July 22, 2016 WikiLeaks Releases
  • October 4, 2016
  • October 7, 2016
  • [Redacted]

Much of the content below that last redacted heading is redacted, but it’s clear the section as a whole relates to the two Corsi pieces that bookend my theory that he and Stone got the files ahead of time.

** Gates was shown an email [redacted] containing the subject line “Trump adviser: WikiLeaks plotting email dump to derail Hillary” **

Gates did not recall receiving the aforementioned email.

[redacted]

** Gates was shown an email [redacted] containing the subject line “Russia? Look who’s really in bed with Moscow — Podesta & Clinton Foundation money-laundering with Russia” **

[redacted]

The FOIAed backup for this interview includes the emails by which the articles were sent.

They obscure the date that the first one was sent, though it was posted on August 15; the second, which Corsi published on October 6, got sent 15 hours later, so just before mid-day on October 7. (Steve Bannon’s assistant Alexandra Preate sent Stone a text at 6:30PM telling him “Well done,” presumably for the actual WikiLeaks releases).

But it sure seems like the campaign was in the loop on some of this.

I’m fairly certain none of this will be aired at the Stone trial. The government doesn’t even plan to enter Stone’s “time in a barrel” tweet into evidence and there’s nothing in the draft exhibit list that looks like it could be these emails. Plus, much of their case seems designed not to have to rely on Corsi.

But it sure seems to have been of interest last year.

The Narrative and Legal Tensions Set on Day One of Roger Stone’s Trial

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I tried to travel to DC to cover the Roger Stone trial, but it didn’t happen. So I’m working second-hand to get details I’d like to have.

But I’ve got three questions from day one of Roger Stone’s trial that go to both the narrative tension prosecutors are setting and, probably, some legal traps as well. I won’t lay all of them out, but here are three.

Aaron Zelinsky introduces only the calls on which (prosecutors claim) they don’t know what happened

Aaron Zelinsky, one of the only remaining Mueller prosecutors still on this team, did the opening. He went after Trump from the start, making it clear that Stone lied to protect Trump. He described previously unknown calls between Stone and Trump on June 14 — after the WaPo reported on the DNC hack, on June 30 — after Guccifer 2.0 posted an FAQ claiming not to be Russian, and on August 31 — just before emailing Corsi and telling him to go meet Assange.

Unless I missed it, neither Zelinsky nor the former FBI Agent who took the stand first mentioned the August 3 call Stone already admitted. That was the same day that Stone wrote Manafort and told him “I have an idea to save Trump’s ass.” That’s also one of the days when (in an email to Sam Nunberg the next day) Stone claimed to have spoken with Julian Assange.

More interestingly, Zelinsky didn’t mention that Rick Gates would testify to witnessing Trump take a call — almost certainly from Roger Stone — after which he told Gates that there were more WikiLeaks emails coming. He didn’t mention a similar, earlier call Michael Cohen witnessed, where Stone predicted the WikiLeaks emails would dump later in the week of July 18 or 19, but it’s not clear whether Cohen will testify (which would explain why Zelinsky wouldn’t mention it).

In other words, Zelinsky didn’t mention the most damning calls we know of.

That’s probably about creating narrative tension — saving the best for last — but also making visible the problem with Stone’s obstruction. We don’t know what was said on those calls because Stone (and Trump, in his written answers to Mueller) denied they even existed.

What’s up with Jerome Corsi?

Zelinsky made it clear that Gates (who we knew about), Credico (who’s the key witness, and probably beginning his testimony tomorrow), and Steve Bannon (about whom I had my doubts) will testify.

The sense I got from reporters at the trial, however, is that the government would not call Jerome Corsi.

I mean, why would you? He entered into a cooperation agreement, then blew it up. He’s a batshit conspiracy theorist. When Stone submitted his exhibit list back in September, the government even challenged the relevance of both Stone’s John Podesta-related emails (an August 15 one, as well as the more famous “time in the barrel” one), as well as a contact with Corsi that must pertain to their effort to start crafting a cover story even in August.

All that suggests the government doesn’t want to get into the most damning aspects of Stone’s interactions with Corsi, but instead just wants to make it clear that Stone’s earlier communications with him makes it clear he lied to the House Intelligence Committee about Credico to hide (the government suggests) what he was up to with Corsi.

Meanwhile, Stone’s defense — such as it exists — amounts to arguing that Credico and Corsi were just pulling a fast one on poor little Rog, pretending they had ties to WikiLeaks but lying about it. That’s all well and good with Credico, who has admitted he was fluffing his ties with WikiLeaks. It is likely also true that Corsi was.

But how will Stone prove that Corsi was overstating his access to Assange if you don’t call him to testify?

Nevertheless, it seems like Corsi will be the giant black hole of this trial, with his referral for lying to the grand jury and all the other reasons why he’s a disaster witness hanging in the background.

Why did Mueller refer what appears to be a follow-up on a Bannon email that will be litigated at this trial elsewhere?

One email Zelinsky did promise we’d learn more about, however, is an August 18 one (some outlets date this to August 16, but it appears to be exhibit 28) that Stone sent to Bannon promising, “I do know how to win this but it ain’t pretty.”

That seems to suggest that the email is the one discussed in hearings on how Paul Manafort breached his plea agreement, in part, by lying to investigators on another investigation.

Effectively, Manafort was asked some questions in a proffer session before his plea on September 13, in response to which he offered information that implicated someone with a 7-character name. [These dates are in the government’s January 15 filing at 23.] Then, in a debriefing on October 5, he changed his story to make it less incriminating — and to match the story the subject of the investigation was telling to the FBI at the time (last fall). When pressed by his lawyers, Manafort mostly changed his story back to what it had been. But the head fake made Manafort useless as a witness against this person.

Judge Amy Berman Jackson summed up this change this way:

The allegation is that the defendant offered a version of events that downplayed [redacted; “the President’s” or “the Candidate”s might fit] role and/or his knowledge. Specifically, his knowledge of any prior involvement of the [16-17 character redaction] that was inconsistent with and less incriminating of [7 character redaction] than what he had already said during the proffer stage and now consistent with what Mr. [7 character redaction] himself was telling the FBI.

This investigation pertains to events that happened “prior to [Manafort] leaving the campaign (on August 19).” [January 15 filing at 26]

As Andrew Weissman described in the breach hearing, Manafort’s version of the story first came when prosecutors, “were asking questions about an e-mail that Mr. [5 character name] had written about a potential way of saving the candidate. That’s sort of paraphrasing it. And this was a way of explaining, or explaining away that e-mail.” In the Janaury 15 filing, this conversation arises to explain “a series of text messages.” [See 25]

Weissmann describes that the revised story Manafort told was, “quite dramatically different. This is not I forgot something or I need to augment some details of a basic core set of facts.” Manafort’s original story involved Mr. [7 character redaction] providing information about a [redacted] who was doing something. Manafort appears to have made a representation about what Mr. [7 character name] believed about that (likely important to proving intent).

But in the second session, Manafort appears to have shifted the blame, implicating Mr. [5 character name] whom, “Mr. Manafort had previously said, I did not want to be involved in this at all,” but leaving out what Mr. [7 character name] had said. Manafort’s testimony effectively left out that when Mr. [5 character name] had called previously, Manafort had said, “I’m on it, don’t get involved.” It appears that Weissmann surmised that Manafort changed the story because his version would make it central to the question of criminality [this might be a reference to being related to the Mueller investigation], so he revised it in an attempt to avoid providing anything that might be helpful to implicating Mr. [7 character name].

Effectively, in the wake of an email written by someone with a 5-character name (so stone would fit) in the days before Manafort resigned on August 19 (so either August 16 or 18 would fit) that promised, “a potential way of saving the candidate,” someone else (my wildarseguess is Kushner) got involved. But once he got his plea agreement, Manafort changed his story to blame the guy who sent the email (in this scenario, Stone) and not the other guy.

There’s just one problem with this presumption that the email Zelinsky described and the one invoked in this investigation are one and the same.

By September of 2018, this was a separate investigation being conducted by “another district.”

The investigation is in another district.  The initial government 12/7 filing says that explicitly at 8. The breach filing at 112 says they had the other investigative team “come here.”

I find it perplexing that some other US Attorney’s office — even DC — would be investigating the aftermath of the Stone to Bannon email discussed today, when such an email (if it related to Stone and WikiLeaks) would be central to what Mueller was still investigating. Corsi hadn’t blown up his plea deal yet. And Bannon’s interview where he presumably told truths he didn’t tell in February 2018 wasn’t until October 26. I mean, I have theories. I can come up with theories for just about anything. But still, why would this email be central to Zelinsky’s opening in a trial where Steve Bannon will testify unless it remained solidly within Mueller’s purview in October 2018?

Anyway, these are the big questions I take away from the first day of Stone’s trial. I think they suggest both narrative and legal plot twists that no one is expecting.

What Prosecutors Need to Show to Prove Roger Stone Guilty

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There has been some absolutely shitty coverage in advance of Roger Stone’s trial that doesn’t even understand the indictment. So to try to minimize the bad coverage, I’m going to lay out what the prosecutors need to prove to show that Roger Stone is guilty.

Stone is accused of telling 5 lies to the House Intelligence Committee, plus intimidating Randy Credico in an attempt to talk him out of testifying honestly. Together, those actions will prove the obstruction charges.

I’ve mapped out each of the lies, below, with what the government needs to do to prove they’re lies, and the evidence the government has already said it’ll offer to prove that. The italicized sentences come from the indictment; where I didn’t otherwise replace it, Organization 1 is WikiLeaks.

Stone has emails with others mentioning Julian Assange and knew that when he testified

STONE testified falsely that he did not have emails with third parties about the head of Organization 1, and that he did not have any documents, emails, or text messages that refer to the head of Organization 1.

The government needs to show not only that he had emails with others (and documents and texts) talking about Julian Assange but that he knew that when he testified.

The emails and texts they’ll use to prove this include:

  • A July 25, 2016 email to Corsi with the subject line, “Get to [the head of Organization 1].” The body of the message read, “Get to [the head of Organization 1] [a]t Ecuadorian Embassy in London and get the pending [Organization 1] emails . . . they deal with Foundation, allegedly.” On or about the same day, Person 1 forwarded STONE’s email to an associate who lived in the United Kingdom and was a supporter of the Trump Campaign (GX35)
  • A July 31, 2016 email to Corsi with the subject line, “Call me MON.” saying that Ted Malloch, “should see Assange.” (GX 36)
  • An August 2, 2016 email from Corsi to Stone stating that, “Word is friend in embassy plans 2 more dumps. One shortly after I’m back. 2nd in Oct. Impact planned to be very damaging. … Time to let more than [the Clinton Campaign chairman] to be exposed as in bed w enemy if they are not ready to drop HRC. That appears to be the game hackers are now about. Would not hurt to start suggesting HRC old, memory bad, has stroke – neither he nor she well. I expect that much of next dump focus, setting stage for Foundation debacle.” (GX 37)
  • An August 19, 2016 text from Credico saying, “I’m going to have [Assange] on my show next Thursday.” (GX 46)
  • An August 21, 2016, text from Credico saying, “I have [Assange on Thursday so I’m completely tied up on that day.” (GX 46)
  • An August 26, 2016 text exchange with Credico where Credico said, “[Assange] talk[ed] about you last night,” Stone asked what Assange said, and Credico responded, “He didn’t say anything bad we were talking about how the Press is trying to make it look like you and he are in cahoots.” (GX 47)
  • August 27, 2016 text messages from Credico saying, “We are working on a [Assange] radio show,” and that, “[Assange] has kryptonite on Hillary.”
  • A September 18, 2016, email to Credico asking, “Please ask [Assange] for any State or HRC e-mail from August 10 to August 30—particularly on August 20, 2011 that mention [the subject of the article] or confirm this narrative.” (GX 48)
  • A September 19, 2016, text to Credico writing, “Pass my message . . . to [Assange].” Credico responded, “I did.” (GX 49-57)
  • An October 1, 2016, text from Credico claiming, “big news Wednesday . . . now pretend u don’t know me . . . Hillary’s campaign will die this week.” (GX 58)
  • An October 2, 2016, email from Stone to Credico saying “WTF?,” linking an article saying that Assange was canceling “highly anticipated Tuesday announcement due to security concerns.” Credico responded, “head fake.” (GX 59)
  • An October 2, 2016, text to Credico stating, “Did [Assange] back off.” On October 3, 2016, Credico responded, “I can’t tal[k] about it.” Then said, “I think it[’]s on for tomorrow.” Credico added later that day, “Off the Record Hillary and her people are doing a full-court press they [sic] keep [the head of Organization 1] from making the next dump . . . That’s all I can tell you on this line . . . Please leave my name out of it.” (GX 58)
  • An October 3, 2016 email or text, probably to Erik Prince, stating, “Spoke to my friend in London last night. The payload is still coming.”
  • An October 3, 2016 email from Matthew Boyle asking, “Assange – what’s he got? Hope it’s good.” Stone responded, “It is. I’d tell [Bannon] but he doesn’t call me back.” (GX 31)
  • An October 4, 2016 email between Bannon and Stone asking what Assange had. (GX 32)
  • An October 4 2016 text, probably from Prince, saying “hear[d] anymore from London,” to which Stone replied, “Yes – want to talk on a secure line – got Whatsapp?” (GX 32)
  • An October 7, 2016 text from Bannon assistant Alexandra Preate saying “well done.” (GX44)

The government also has to prove that Stone knew he had all these comms. One way they’ll do so is by showing they were still in Stone’s possession when they searched his home. Another way they’ll prove it is by showing that Stone shared many of them, on the record, with reporters as he was trying to walk back his story.

Stone’s references to an intermediary are not to Credico

STONE testified falsely that his August 2016 references to being in contact with the head of WikiLeaks were references to communications with a single “go-between,” “mutual friend,” and “intermediary,” who STONE identified as Credico.

The government has to prove that 1) Credico could not have been the intermediary Stone referred to publicly in early August and 2) there was at least one other person that Stone was using as an attempted intermediary to Assange.

To prove this, first of all, the government will show that there were no communications between Credico and Stone until Credico told Stone that he was going to have Assange on his show on August 19, which was after Stone repeatedly claimed to have an intermediary.

The government will also show that Stone had communications with Corsi that amount to treating him as an intermediary. It will do this by showing the following communications:

  • A July 25, 2016 email to Corsi with the subject line, “Get to [the head of Organization 1].” The body of the message read, “Get to [the head of Organization 1] [a]t Ecuadorian Embassy in London and get the pending [Organization 1] emails . . . they deal with Foundation, allegedly.” On or about the same day, Person 1 forwarded STONE’s email to an associate who lived in the United Kingdom and was a supporter of the Trump Campaign
  • A July 31, 2016 email to Corsi with the subject line, “Call me MON.” saying that Ted Malloch, “should see Assange.”
  • An August 2, 2016 email from Corsi to Stone stating that, “Word is friend in embassy plans 2 more dumps. One shortly after I’m back. 2nd in Oct. Impact planned to be very damaging. … Time to let more than [the Clinton Campaign chairman] to be exposed as in bed w enemy if they are not ready to drop HRC. That appears to be the game hackers are now about. Would not hurt to start suggesting HRC old, memory bad, has stroke – neither he nor she well. I expect that much of next dump focus, setting stage for Foundation debacle.”

The government will further show that Stone knew Credico couldn’t be the intermediary because he spoke to both Credico and Corsi about that. For example, they’ll show

  • On January 6, 2017, Credico texted Stone, “Well I have put together timelines[] and you [] said you have a back-channel way back a month before I had [the head of Organization 1] on my show . . . I have never had a conversation with [the head of Organization 1] other than my radio show . . . I have pieced it all together . . .so you may as well tell the truth that you had no back-channel or there’s the guy you were talking about early August.” (GX 61)
  • On November 30, 2017, after Stone asked Corsi to write something about about Credico, Corsi asked, “Are you sure you want to make something out of this now? Why not wait to see what [Person 2] does. You may be defending yourself too much—raising new questions that will fuel new inquiries. This may be a time to say less, not more.” (GX 41)

The government may show there was another intermediary (probably the source Corsi refused to give up when he stopped cooperating) — and in fact, this prosecution may be an attempt to force Stone to admit that.

Stone asked for favors from his intermediaries to Assange

STONE testified falsely that he did not ask the person he referred to as his “go-between,” “mutual friend,” and “intermediary,” to communicate anything to the head of Organization 1 and did not ask the intermediary to do anything on STONE’s behalf.

The government will need to prove that he asked for favors from intermediaries. This will show, at least:

  • The July 25, 2016 email to Corsi with the subject line, “Get to [the head of Organization 1].” The body of the message read, “Get to [the head of Organization 1] [a]t Ecuadorian Embassy in London and get the pending [Organization 1] emails . . . they deal with Foundation, allegedly.” On or about the same day, Person 1 forwarded STONE’s email to an associate who lived in the United Kingdom and was a supporter of the Trump Campaign. This was a request not for information about emails, but the emails themselves.
  • A September 18, 2016, email to Credico asking, “Please ask [Assange] for any State or HRC e-mail from August 10 to August 30—particularly on August 20, 2011 that mention [the subject of the article] or confirm this narrative.”
  • A September 19, 2016, text to Credico writing, “Pass my message . . . to [Assange].” Credico responded, “I did.”

The government will prove he remembered that when he testified because after he testified, he threatened Margaret Kunstler, through whom Credico asked Assange for help. I suspect they have additional proof on this front.

Stone communicated with an intermediary about Assange

STONE testified falsely that he and the person he referred to as his “go-between,” “mutual friend,” and “intermediary” did not communicate via text message or email about WikiLeaks.

The government can prove this with both the Credico and Corsi communications (though I suspect it knows of more). As above, they can prove Stone knew he had these communications because he offered them up to people and indicated he knew of them in real time to Corsi.

Stone discussed his outreach via an intermediary with the Trump campaign

STONE testified falsely that he had never discussed his conversations with the person he referred to as his “go-between,” “mutual friend,” and “intermediary” with anyone involved in the Trump Campaign.

The government needs to show Stone passed on information he represented as coming from an intermediary to Assange to the Trump campaign. To prove this the government will show:

  • Starting in June, Stone told Trump campaign officials that emails were coming.
  • Around July 18, Stone called Trump at his Trump Organization phone (patched through via Rhona Graff) and told Trump the emails would be coming out that week.
  • Sometime after the July 22 release, Stone called Trump on his cell phone and told him more emails were coming; after Trump hung up, he told Rick Gates (who was driving with him to Laguardia) that more emails were coming.
  • In October, Stone claimed to have information from WikiLeaks to both Bannon and Erik Prince.

The government will prove Stone remembered this with comms with Credico and Corsi, making it clear he was protecting Trump (any one of his pleading emails telling Trump he was protecting him since then would do the trick, as well).

The government will also show that Stone was discussing his campaign finance shenanigans with the campaign, and lied about that to HPSCI, before he cleaned up his testimony.

Stone tried to prevent Credico from telling HPSCI that he was not Stone’s intermediary

The government will show abundant communications, including from third parties, to document the pressure Stone put on Credico to lie for him. That includes:

  • A November 19, 2017 text instructing Credico to, “‘Stonewall it. Plead the fifth. Anything to save the plan’ . . . Richard Nixon.” (GX 63)
  • Multiple texts, starting on December 1, 2017, instructing Credico to do a Frank Pentangeli.” (GX 69)
  • On December 1, 2017, Stone texted Credico stating, “And if you turned over anything to the FBI you’re a fool.” Later that day, Credico responded, “You need to amend your testimony before I testify on the 15th.” Stone responded, “If you testify you’re a fool. Because of tromp I could never get away with a certain [sic] my Fifth Amendment rights but you can. I guarantee you you are the one who gets indicted for perjury if you’re stupid enough to testify.” (GX 69)
  • On or about December 24, 2017, Credico texted Stone, “I met [the head of Organization 1] for f[i]rst time this yea[r] sept 7 . . . docs prove that. . . . You should be honest w fbi . . . there was no back channel . . . be honest.” Stone replied approximately two minutes later, “I’m not talking to the FBI and if your smart you won’t either.” (GX 69)
  • On April 9, 2018, emailed Credico, “You are a rat. A stoolie. You backstab your friends-run your mouth my lawyers are dying Rip you to shreds.” Stone also threatened to take Bianca away: “take that dog away from you,” and then added, “I am so ready. Let’s get it on. Prepare to die [expletive].” (GX 112-114)
  • When Credico emailed Stone on May 21, 2018, “You should have just been honest with the house Intel committee . . . you’ve opened yourself up to perjury charges like an idiot.” Stone replied, “You are so full of [expletive]. You got nothing. Keep running your mouth and I’ll file a bar complaint against your friend [Margaret Kunstler].” (GX 124-126)

The government will also show that when Stone got in trouble for 2007 for leaving a threat for Eliot Spitzer’s father, he blamed it on Credico.

What the Exhibit Decisions and the Witness List Say to Expect from Roger Stone’s Trial (Updated)

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Today, jury selection begins in the the Roger Stone trial. The final jury questionnaire, which got released, includes a list of witnesses or people who will be mentioned at trial. I’ve italicized the people who’ll surely just be mentioned. I’ve marked the people whose communications may be entered by stipulation with asterisks (meaning they don’t necessarily have to testify to prove they had communications with Stone); in addition, the numbers for people like Rhona Graff and Keith Schiller have also been stipulated). Bill Binney and Peter Clay probably will not testify, as Amy Berman Jackson has excluded that line of defense for Stone.

  • Julian Assange
  • Jason Aubin
  • Steve Bannon*
  • William Binney (probably excluded)
  • Zachary Blevins
  • Matthew Boyle (Breitbart guy in the loop between Bannon and Stone)
  • Michael Caputo (said in September that he appeared on the witness list and so was banned from contact, but says he will not be a witness)
  • Peter Clay (probably excluded)
  • Hillary Clinton
  • Jerome Corsi*
  • Randy Credico*
  • Richard Gates* (this is his last testimony as part of his cooperation agreement before he moves towards sentencing)
  • Jason Fishbein
  • David Gray (Corsi’s lawyer)
  • John Kakanis
  • Margaret Kunstler (who probably won’t testify; Credico emailed her on request of Stone)
  • David Lugo
  • Theodore Malloch (testified that Corsi told him Stone knew John Podesta emails were coming)
  • Paul Manafort*
  • Rebekah Mercer (Stone told Bannon he wanted funding from her)
  • Andrew Miller
  • Tyler Nixon
  • Sam Nunberg (Stone told him he had just spoken with Julian Assange on August 4)
  • John Podesta
  • Alexandra Preate (Bannon’s assistant)*
  • Erik Prince* (probably the campaign associate that Stone WhastApped with in October 2016)
  • Bill Samuels
  • Michael Strum
  • Jason Sullivan
  • Michelle Taylor (FBI Agent)
  • Donald Trump*

Yesterday ABJ also made final decisions about witnesses and testimony (see this thread for live tweeting that didn’t make it into the coverage).

The issue people care about (but is fairly minor for the trial) is what will happen with the Godfather II clip that will explain a Frank Pentangeli reference Stone made to try to convince Credico to lie to Congress. An FBI case agent will introduce it, in concept, and after Credico testifies, the government may move to introduce the clip itself.

More interesting are debates about what Stone will do to discredit Credico, Jerome Corsi (if he testifies), and Steve Bannon. With Credico, ABJ seemed intent on leaving out stuff that discredits him, possibly including his fondness for Julian Assange.

Stone wanted to submit Jerome Corsi’s entire book (which I agree discredits him pretty readily). But ABJ will only permit him to use it to discredit Corsi if he says something inconsistent.

Most interesting has to do with Bannon, who (given the witness list) is necessarily the person that worked in the transition and the White House discussed in yesterday’s hearing. Stone says there’s something Bannon has done recently that would discredit his testimony. To be honest, I wouldn’t be surprised if the government doesn’t call Bannon at all, not least because the government only released his derogatory interview over the weekend (where he clearly lied), not the one from October 26, 2018 that would be relevant to the trial (and as a result, the government didn’t release his proffer agreement, as they did with Michael Cohen). He’s relevant because of some emails exchanged in early October 2016 between Breitbart journalist Matthew Boyle and Stone, then Stone and Bannon (which appear to be exhibits 31 and 32). The thing is, the email for Bannon (at least) and his assistant, at least, are stipulated, meaning an FBI Agent can enter those into evidence. The big reason why Bannon might be called personally is to explain the reference to this email.

FROM: Roger Stone

TO: Steve Bannon

EMAIL:

Don’t think so BUT his lawyer Fishbein is a big democrat .

I know your surrogates are dumb but try to get them to understand Danney Williams case

chick mangled it on CNN this am

https://www.dailymail.co.uk/news/article-3819671/Man-claiming-Bill-Clinton-s-illegitimate-son-prostitute-continues-campaign-former-president-recognize-him.html

He goes public in a big way Monday— Drudge report was a premature leak.

I’ve raise $150K for the targeted black digital campaign thru a C-4

Tell Rebecca to send us some $$$

We know from an earlier ABJ ruling that the government will introduce how Stone also lied to HPSCI about coordinating his dark money efforts with the campaign, before he later cleaned it up. And Bannon may be necessary to explain this. I understand that Stone’s specific late election targeting efforts suppressing the black vote in a surprise swing state — on top of his efforts to suppress the vote — would look very damning given what we otherwise know about suppression efforts. Stone clearly believes Bannon is testifying, but then he also has a grudge against him so would love to smear him publicly. But I leave open the possibility that the government enters this information via other means (especially given that they said they only need one witness in addition to the FBI Agent to introduce this stuff).

Curiously, nothing public suggests Stone is doing much to discredit Rick Gates (who will almost certainly testify to witnessing Trump get a call on his cell phone from Stone telling him of upcoming dumps) or Michael Cohen (who would testify to witnessing Trump being informed in advance about the July 22 WikiLeaks dump, if he is sprung from prison to do so), whose testimony would in some ways be far more damning.

Otherwise, ABJ seems to have made remarkably favorable rulings for the government yesterday on several counts.

On September 25, 2019, for the reasons stated on the record in the courtroom at the Pretrial Conference, the following government exhibits (“GX”) were ruled on as follows: GX 21, 22, 24, 42, 43, 44, 165, 166, and 167 are admitted. GX 148 will be admitted with redactions.

These involve:

  • June 13 and 15 emails with someone — possibly Corsi? — which would bracket the revelation of the DNC hack; there’s an email involving Corsi and Stone where they talk about “phishing with John Podesta” and given Stone’s argument that these emails would be prejudicial, I wonder if that’s it?
  • A July 29 email, (possibly to Manafort?), at the time when Trump was ordering people to get Stone to chase down these emails
  • Some texts that appear to involve Jerome Corsi from January 2018; remember there are allegations that Corsi was paid by InfoWars to keep silent (though that’s also the period when Stone was talking about getting Assange a pardon with Credico in texts that Stone didn’t challenge)
  • Three charts showing Stone’s comms with — probably — Credico (to show that he wasn’t talking to Credico until he needed a cover story) and Trump campaign officials; normally defense attorneys succeed in getting such charts excluded but the government won this fight, apparently
  • A redacted set of Stone’s toll records, which will show who he called when (there’s a 212 line that may be Trump’s cell phone)

In addition, ABJ generally limited Stone’s use of HPSCI majority and minority Russian reports to the parts that affect him; she specifically excluded the section on Christopher Steele, which is a testament to how desperate Stone is.

Among the only emails that Stone successfully got admitted to discredit Credico are ones from February 9, February 24, and June 3, 2017, the first two of which will be redacted.

The case against Stone is strong. He appears to be preparing to argue that he was never really subpoenaed for all the documents he told HPSCI he didn’t have (which the government will argue is why he lied about not having any). But that’s about all he seems prepared to do — besides attacking Credico, Corsi, and Bannon — to defend himself.

Federal Judge Destroys the Hopes of RICO Salvation in DNC Lawsuit

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Yesterday, Clinton-appointed Judge John Koeltl dismissed with prejudice the DNC’s lawsuit against Russia, Trump’s flunkies, and WikiLeaks alleging they conspired against the party in 2016. He also ruled against a Republican demand to sanction the DNC for sustaining their claim in the wake of Robert Mueller finding that he “did not establish” a conspiracy between Trump and Russia. Koeltl’s decision is unsurprising. But his decision is interesting nevertheless for what it reveals about his legal assessment of the events of 2016, not least because of the ways it does and does not parallel Mueller’s own decisions.

The scope of the two analyses is different: The Democrats alleged RICO and some wiretapping charges, as well as the theft of trade secrets; Mueller considered campaign finance crimes and a quid pro quo. A short version of the difference and similarity in outcome is that:

  1. Mueller charged the GRU officers who hacked the DNC for the hack (which DOJ has been doing for five years, but which has never been contested by a state-hacker defendant); by contrast, Judge Koeltl ruled that Russia’s hackers could not be sued under the Foreign Sovereign Immunities Act (which is what the Mystery Appellant tried to use to avoid responding to a subpoena); notably, Elliot Broidy’s attempt to blame Qatar for his hack serves as precedent here. For the DNC, this meant the key players in any claimed conspiracy could not be sued.
  2. While Democrats made a bid towards arguing that such a conspiracy went beyond getting Trump elected to getting Trump to enact policies that would benefit Russia, Koeltl treated any Trump role as just that, attempting to get Trump elected. This meant that (for example) Stone’s alleged criminal obstruction after Trump got elected was not deemed part of any conspiracy.
  3. As Mueller did with both the hack-and-leak itself but also with any campaign finance violation associated with getting hacked documents as assistance to a campaign, Koeltl ruled that the Supreme Court’s decision in Bartnicki meant the First Amendment protected everyone besides the Russians from liability for dissemination of the stolen documents.
  4. DNC’s RICO fails because, while the Trump campaign itself was an association, the DNC claim that there was an Association in Fact under RICO fails because the ties between individuals were too scattered and their goals were not the same. Moreover, the goal of the Trump associates — to get Trump elected — is in no way illegal.

The most important part of the decision — both for how it protects journalism, what it says about the EDVA charges against Julian Assange, and what it means for similar hack-and-leak dumps going forward — is Koeltl’s First Amendment analysis, in which he argued that even WikiLeaks could not be held liable for publishing documents, even if they knew they were stolen.

Like the defendant in Bartinicki, WikiLeaks did not play any role in the theft of the documents and it is undisputed that the stolen materials involve matters of public concern. However, the DNC argues that this case is distinguishable from Bartnicki because WikiLeaks solicited the documents from the GRU knowing that they were stolen and coordinated with the GRU and the Campaign to disseminate  the documents at times favorable to the Trump Campaign. The DNC argues that WikiLeaks should be considered an after-the-fact coconspirator for the theft based on its coordination to obtain and distribute the stolen materials.

As an initial matter, it is constitutionally insignificant that WikiLeaks knew the Russian Federation had stolen the documents when it published them. Indeed, in Bartnicki the Supreme Court noted that the radio host either did know, or at least had reason to know, that the communication at issue was unlawfully intercepted.

[snip]

And, contrary to the DNC’s argument, it is also irrelevant that WikiLeaks solicited the stolen documents from Russian agents. A person is entitled [sic] publish stolen documents that the publisher request from a source so long as the publisher did not participate in the theft. … Indeed, the DNC acknowledges that this is a common journalistic practice.

[snip]

WikiLeaks and its amici argue that holding WikiLeaks liable in this situation would also threaten freedom of the press. The DNC responds that this case does not threaten freedom of the press because WikiLeaks did not engage in normal journalistic practices by, for example, “asking foreign intelligence services to steal ‘new material’ from American targets.” … The DNC’s argument misconstrues its own allegations in the Second Amended Complaint. In the Second Amended Complaint, the DNC states that “WikiLeaks sent GRU operatives using the screenname Guccifer 2.0 a private message asking the operatives to ‘[s]end any new material (stolen from the DNC] her for us to review.'” … This was not a solicitation to steal documents but a request for material that had been stolen. [citations removed]

Koeltl analyzes whether the Democratic claim that GRU also stole trade secrets — such as their donors and voter engagement strategies — changes the calculus, but judges that because those things were newsworthy, “that would impermissibly elevate a purely private privacy interest to override the First Amendment interest in the publication of matters of the highest public concern.”

Koeltl goes on to note that the analysis would be the same for Trump’s associates, even though they make no claim (as WikiLeaks does) to being part of the media.

[E]ven if the documents had been provided directly to the Campaign, the Campaign defendants, the Agalarovs, Stone, and Mifsud, they could  have published the documents themselves without liability because they did not participate in the theft and the documents are of public concern. … Therefore, the DNC cannot hold these defendants liable for aiding and abetting publication when they would have been entitled to publish the stolen documents themselves without liability. [citations removed]

That analysis is absolutely right, and even while Democrats might hate this outcome and be dismayed by what this might portend about a repeat going forward, it is also how this country treats the First Amendment, both for those claiming to be journalists and those making no such claim.

All that said, there are several aspects of this analysis worth noting.

This is a DNC suit, not a suit by all harmed Democrats

First, this is a suit by the DNC. Neither Hillary nor John Podesta are parties. “Podesta’s emails had been stolen in a different cyberattack,” Koeltl said, “there is not allegation they were taken from the DNC’s servers.” Had they been, they would have had to have been prepared to submit to discovery by Trump and his associates.

Including Podesta might have changed the calculus somewhat, though Koeltl does not deal with them (though he does suggest they would not have changed his calculus).

They might change the calculus, however, because (as Emma Best has noted) WikiLeaks did solicit something — the transcripts of Hillary’s speeches — that was subsequently obtained in the Podesta hack. The DNC did not include that in their complaint and that might have changed Koeltl’s analysis or, at a minimum, tested one of the theories the government is currently using in the Assange prosecution.

Similarly, while there is now evidence in the record that suggests Stone may have had advanced knowledge even of the July 2016 DNC dump, the allegations that would show him having had an impact on the release of documents pertains to the release of the Podesta emails. Jerome Corsi (who was added in the DNC’s second complaint but not as a conspirator) claimed that he had helped Stone optimize the Podesta release in an attempt to drown out the Access Hollywood video, but Mueller was not able to corroborate that.

More tantalizingly, a filing in Stone’s case shows that in at least one warrant application, the government cited some conversation in which he and others — possibly Corsi and Ted Malloch — were discussing “phishing with John Podesta.” That’s not something that will be public for some time. But even if it suggested that Stone may have had more knowledge of the Podesta hack then let on, it would be meaningless in a suit brought by the DNC.

No one knows why Manafort shared polling data and his plans to win the Rust Belt (indirectly) with Oleg Deripaska

The second DNC complaint mentions, but does not explain, that Paul Manafort had Rick Gates send polling data to Konstantin Kilimnik intended to  be share with oligarchs including Oleg Deripaska.

At some point during the runup to the 2016 election, Manafort “shar[ed] polling data . . . related to the 2016 presidential campaign” with an individual connected to Russian military intelligence. This data could have helped Russia assess the most effective ways to interfere in the election, including how best to use stolen Democratic party materials to influence voters.

[snip]

In March 2016, the Trump Campaign also hired Manafort. As noted above, Manafort was millions of dollars in debt to Deripaska at the time. He was also broke.55 Yet he agreed to work for the Trump Campaign for free. A few days after he joined the Trump Campaign, Manafort emailed Kilimnik to discuss how they could use Manafort’s “media coverage” to settle his debt with Deripaska.56 Manafort had multiple discussions with Kilimnik in the runup to the 2016 election, including one in which Manafort “shar[ed] polling data . . . related to the 2016 presidential campaign.”57 This data could have helped Russia assess the most effective ways to interfere in the election, for instance, by helping it determine how best to utilize information stolen from the DNC .

[snip]

Manafort lied about sharing polling data with Kilimnik related to Trump’s 2016 campaign.226

The Mueller Report’s further details on the sharing, including Manafort’s review of his strategy to win the Rust Belt, came too late for the complaint. And as such, Koeltl doesn’t really deal with that allegation (which would likely require naming others as conspirators in any case), and instead treats any conspiracy as limited to the hack-and-leak.

Thus, he does not treat the hints of further coordination, nor is there currently enough public evidence for the DNC to get very far with that allegation. This is a ruling about an alleged hack-and-leak conspiracy, not a ruling about any wider cooperation to help Trump win the election.

No one knows what happened to the stolen DNC analytics

Finally, while the DNC complaint extensively described the September hack of its analytics hosted on AWS servers — a hack that took place after Stone scoffed at the analytics released to date by Guccifer 2.0 — Koeltl doesn’t treat that part of the hack in detail because it was never publicly shared with anyone.

The Second Amended Complaint does not allege that any materials from the September 2016 hack were disseminated to the public and counsel for the DNC acknowledged at the argument of the current motions that there is no such allegation.

The DNC included the analytics in their trade secret discussion, but given that Russia had FSIA immunity, and given that the GOP is not known to have received any of this, Koeltl did not consider the later theft (which is not known to have had the same public interest value as the claimed trade secrets that got leaked).

The SAC asserts: “The GRU could have derived significant economic value from the theft of the DNC’s data by, among other possibilities, selling the data to the highest bidder.” There is no allegation that the Russian Federation did in fact sell the DNC’s data, and any claims against the Russian Federation under the federal and state statutes prohibiting trade secret theft are barred by the FSIA.

Finally, given that it was not released publicly Koeltl does not consider how the GRU hack of analytics after Stone’s discussion of analytics with Guccifer 2.0 might change the analysis on whether Stone was involved prior to any hacks.

Similarly, Stone is alleged to have contacted WikiLeaks through Corsi for the first time on July 25, 2016 and spoke to GRU officers in August 2016 — months after the April 2016 hack. Stone is not alleged to have discussed stealing the DNC’s documents in any of these communications, or to have been aware of the hacks until after they took place.

[snip]

DNC does not raise a factual allegation that suggests that any of the defendants were even aware that the Russian Federation was planning to hack the DNC’s computers until after it had already done so.

Again, there’s too little know about the purpose of this part of the hack (which virtually no one is aware of, but which would have been particularly damaging for the Democrats), and as such the DNC would not be in a position to allege it in any case. But it is a key part of the hack that shifts the timeline Koeltl addressed.

Which ultimately leaves Koeltl’s final judgment about the DNC attempt to obtain some kind of remedy for having Trump welcome and capitalize on a foreign state’s actions to tamper in the election. “Relief from the alleged activities of the Russian Federation,” Koeltl said, “should be sought from the political branches of the Government and not from the courts.”

One of the few ways to do that is to impeach.

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