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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

But Special Masters can. And Barbara Jones already has.

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

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

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

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

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

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

Update: Oetken has indeed appointed Jones.

Organized Crime

December 16, 2020/97 Comments/in 2016 Presidential Election, 2020 Presidential Election, Mueller Probe /by emptywheel

Know what you call a crowd that requires 25 pardons to cover their illegal activities of the last 5 years?

As it happens, Trump is mulling the pardons at a juncture when loyalty appears his principal concern, complaining repeatedly over the past weeks that Republicans are deserting him when he needed them to help overturn the election results.

He has largely frozen out those advisers and associates who do not seem on the same page. One person who used to speak to Trump regularly, but who delicately encouraged him to soften his post-election stance, no longer has his calls returned and hasn’t heard from Trump in weeks.

In all, the President is considering pardons for more than two dozen people in his orbit whom he believes were targeted — or could be targeted in the future — for political ends. That’s in addition to hundreds of requests from others who have approached the White House directly, and tens of thousands more whose petitions are pending at the Justice Department.

Organized crime.

Kevin Downing Was “in the Loop” of Silencing Lev Parnas on October 8

January 18, 2020/45 Comments/in 2020 Presidential Election, Impeachment /by emptywheel

Lev Parnas’ lawyer, Joseph Bondy, continues his attack on those who scorned his client.

This afternoon, he posted an email dated October 8, 2019 7:06 AM that John Dowd — then ostensibly representing Parnas and Igor Fruman — sent to update a bunch of lawyers that his clients would send, “a letter to the intel committee to eliminate any doubt that Igor and Lev will appear to answer questions because we are not prepared to do so.”

Dowd, of course, had already first called, on September 30, then sent a letter, on October 3, to convey the same message. But he seemed to feel the need to do so again on October 8 (which may be part of the reason the White House released the intemperate Trump letter signed by White House Counsel Pat Cipollone).

He forwarded the email, with all recipients visible, to his clients a minute later.

The next day, Parnas and Fruman met with Rudy Giuliani at Trump hotel for lunch. That afternoon, Bill Barr visited SDNY. Hours later, Parnas and Fruman tried to board a plane to go to Vienna to tape an interview between Sean Hannity and Dmitro Firtash. They were arrested on charges that had been processing away in SDNY for months, ostensibly because SDNY feared they would flee, even though they had left the country numerous times while that investigation proceeded. Then, probably after Parnas and Fruman were arrested, Barr visited Rupert Murdoch personally. Hannity never went to Vienna. Nor did Rudy, who was supposed to meet Parnas and Fruman the next day.

According to public reports at the time, because they got arrested in EDVA, they needed a local lawyer to deal with their bail, so Paul Manafort’s lawyer, Kevin Downing stepped in. Then, what must be the next day, Parnas fired both Dowd and Downing, because — he believed — they were telling him to take the fall for the President.

MADDOW: Mr. Dowd was your attorney for a time and then you changed attorneys.

PARNAS: I fired him in jail.

MADDOW: You fired him when you were in jail?

PARNAS: Yes.

MADDOW: What happened there?

PARNAS: And Mr. Downing. Basically, when we were arrested, obviously, I had nowhere else to call. I didn`t know – we just retained Dowd and Downing. So I called Downing to come there and I started seeing in the process of the bail stuff the way things were going on that they were more concentrating on – I didn’t feel that they were trying to get me out, and at that point, I had a meeting with John Dowd and Downing inside the jail.

And John Dowd just instead of comforting me and, you know, trying to calm me down, telling me, like, it’s going to be OK, like, don’t worry, basically start talking to me like a drill sergeant and telling me, giving me orders, like, you know, be a good boy, like, you know.

MADDOW: He said “be a good boy”?

PARNAS: No, I don’t – I don’t want to quote him exactly on what the words, what he used in that because it was a while ago. I don’t remember exactly.

But it was – it was his condescending attitude toward basically, like, who do you think you are telling the president or Giuliani or anybody to, like, come out and because I – one of the things I said, I said, I can’t believe nobody is coming out in our defense and saying we didn’t do anything wrong, we’re good citizens, you know, we work.

And basically word for word, and then I said, if you don’t get out of here right now, something bad is going to happen because I don’t want to see the two of you.

And at that point, Downing hit the emergency button and the security took me out and took them out.

MADDOW: This is a very heated confrontation. You told Downing and Dowd to get out.

PARNAS: I threw them out.

MADDOW: Were they telling you to sacrifice yourself in order to protect the president?

PARNAS: That’s what I felt.

Here’s the thing. Downing was not — at least not publicly — representing Parnas and Fruman until and because they were detained in EDVA.

But he — Paul Manafort’s lawyer — was included in that email from Dowd on October 8, a day before they were arrested along with Trump’s lawyers, Victoria Toensing and Joe DiGenova, and Rudy’s then lawyer Jon Sale.

Lev Parnas appears to believe he was arrested because it was a better way to keep him silent than telling Congress no.

And the inclusion of Kevin Downing in that October 8 email suggests he may well be right.

Parnas’ Three-Way: John Dowd Has Already Confirmed a Key Part of Lev Parnas’ Story

January 17, 2020/38 Comments/in 2016 Presidential Election, 2020 Presidential Election, Impeachment, Mueller Probe /by emptywheel

Last night, Lev Parnas provided details to Rachel Maddow about how he came to be represented, briefly, by John Dowd. It was Rudy’s idea, but when Dowd first raised the issue, Jay Sekulow (who appears to have recognized this would all blow up) said he doubted the President would waive any conflict he had. Parnas replied that he believed the President would. Shortly thereafter, Dowd came back and told Parnas, “You are one lucky man,” confirming that Trump had waived the conflict.

Per the email from Dowd reflecting the request to Sekulow that Parnas released, that happened on October 2.

At around the same time, there was a discussion about what to do about the subpoena from the House Intelligence Committee, which requested documents on September 30, to be due on October 7. As Parnas explained it, they met at Dowd’s house with Rudy and Sekulow, with Victoria Toensing on the phone. Because Parnas worked for Rudy and Toensing, Parnas explained, White House Counsel Pat Cipollone would write a letter to Congress asserting “three-way privilege.”

Only, Cipollone didn’t write that letter. John Dowd, who had attorney-client privilege at the time with Parnas, wrote it the day after Trump waived any conflict. This is the letter that I said, back in October, might one day end up in a museum.

If we survive Trump and there are still things called museums around that display artifacts that present things called facts about historic events, I suspect John Dowd’s October 3 letter to the House Intelligence Committee will be displayed there, in all its Comic Sans glory.

In it, Dowd memorializes a conversation he had with HPSCI Investigation Counsel Nicholas Mitchell on September 30, before he was officially the lawyer for Lev Parnas and Igor Fruman, now placed in writing because he had since officially become their lawyer. He describes that there is no way he and his clients can comply with an October 7 document request and even if he could — this is the key part — much of it would be covered by some kind of privilege.

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

Once that letter was sent, under penalty of prosecution for false statements to Congress, it became fact: Parnas and Fruman do work for Rudy Giuliani in the service of the President of the United States covered by privilege, Rudy does work for them covered by privilege, and they also do work for Joseph Di Genova and Victoria Toensing about this matter that is covered by privilege.

I observed at the time that this seemed to be an effort to adopt the same strategy that had worked so well in the Mueller investigation — throw everyone into the same conflict-ridden Joint Defense Agreement, and sink or swim together.

Only, this time, it would entail also admitting one other key player into the Joint Defense Agreement: Dmitro Firtash, whom months earlier Rudy had affirmatively claimed was part of the Russian mob.

[W]hen Dowd wrote Congress, explaining that Rudy worked for both Trump and the Ukrainian grifters, and the Ukrainian grifters worked for DiGenova and Toensing, he was asserting that the President is a participant in an ethical thicket of legal representation with a mob-linked Ukrainian oligarch fighting extradition (for bribery) to the United States. And all of that, Dowd helpfully made clear, related to this Ukraine scandal (otherwise he could not have invoked privilege for it).

In other words, the President’s former lawyer asserted to Congress that the President and his current lawyer are in some kind of JDA from hell with the Russian mob, almost certainly along with the President’s former campaign manager, who apparently gets consulted (via Kevin Downing) on these matters in prison.

And that’s why the inclusion of Parnas’ hand-written notes from a June 2019 phone call with Rudy are so important. They show that Rudy had a plan to trade Firtash — the guy that Rudy claimed in March 2019 was part of the Russian mob — “magic” to “cut deal” or “get dismissed” his legal troubles in return for dirt on Burisma and claims that the “Ukrain ledger” was bogus.

Parnas even wrote notes showing they were going to hire Brian Ballard or Robert Stryk to do a PR campaign of the sort that Paul Manafort used to do.

Rudy might contest that’s what these notes — indeed, he denied any tie to Firtash, including through a Firtash associate Dmitry Torner, in an important story yesterday (though he did admit speaking to two of Firtash’s lawyers).

In a statement, Giuliani said he did not remember meeting Torner or details of his meetings in Paris and London and had limited interest in Firtash. “I never met him. I never did business with him,” he said of Firtash. He did not respond to follow-up questions after The Post obtained photos of the Paris gathering.

[snip]

In a statement this week, Giuliani said he spoke with a Chicago-based attorney who is handling Firtash’s federal case to see if he had “evidence of corruption in Ukraine in 2016” to bolster his defense of Trump.

“I asked some questions about him because I thought he might have some relevant information,” Giuliani told The Post. “I determined that he didn’t.”

He said that Parnas urged him to keep reaching out to Firtash associates, but that he rejected the idea because he did not believe the tycoon had any pertinent information.

But Bondy, who has been urging Congress to call his client as a witness, said Parnas would be prepared to describe Giuliani’s outreach to Firtash.

“If called upon to testify, Mr. Parnas would say that Mr. Giuliani never rejected efforts to establish a line of communication with Mr. Firtash, and that, to the contrary, he did everything possible to secure that channel,” Bondy said.

But, as I said in October, the president’s former lawyer is already on the record in a statement to Congress under penalty of false statements that Parnas worked for both the president (via his current lawyer) and Toensing and DiGenova.

It has been clear since October that something like those notes Parnas released would be forthcoming. And because the government arrested Parnas, there’ll be a damned good chain of custody on the notes, proving he didn’t make them more recently to get out of legal trouble.

Trump’s legal advisors all entered into an insane joint defense agreement in October to try to keep Parnas (and Fruman) quiet. It seems Parnas quickly realized, when Dowd started giving him orders in jail, that he was going to be the fall guy for all their shady dealings, Rudy’s shady dealings, done on behalf of the President.

Trump “Cares” about Corruption in Ukraine because It Ensures Paul Manafort Will Keep His Secrets

December 13, 2019/66 Comments/in 2016 Presidential Election, 2020 Presidential Election, Impeachment, Mueller Probe /by emptywheel

On August 2, 2016, Donald Trump’s campaign manager took a break from his campaign work for a secret meeting with his former employee, Konstantin Kilimnik. Kilimnik first pitched the meeting on 10:51AM on July 29 after meeting in person in Moscow with Viktor Yanukovych, explaining that, “It has to do about the future of [Yanukovych’s] country, and is quite interesting.” Paul Manafort accepted the meeting that same day, saying Tuesday was the best day for it. After Kilimnik returned to Ukraine on July 31, he told Manafort he needed two hours for the meeting and would arrive at JFK at 7:30 PM on August 2 for the meeting.

At the meeting, Manafort and Kilimnik discussed three things. First, they discussed a plan to make “peace” in Ukraine by creating an autonomous region in Donbas and getting Yanukovych “elected” to head it. Manafort later told Mueller’s team that he cut the meeting short before Kilimnik asked him to get Trump to come out for the peace plan, though Mueller’s team argued and Amy Berman Jackson agreed that Manafort was lying about what happened at the meeting.

After Rick Gates showed up (he came late), Manafort laid out for Kilimnik how the campaign planned to win Michigan, Wisconsin, Pennsylvania, and Minnesota.

Finally, Kilimnik told Manafort how he could get back on the gravy train of Oleg Deripaska and the Party of Regions. Specifically, Kilimnik explained what Manafort would have to do to get Ukrainian oligarchs Rinat Akhmetov and Serhiy Lyovochkin to pay him money that Manafort claimed they owed him from past work. Eight days later, on August 10, Manafort — who was badly underwater and working for Trump for “free” — would tell his accountant to book $2.4M in income from those oligarchs, to be paid in November.

This recognition of payment from Yanukovych’s allies just a week after meeting to talk about a way to help Yanukovych do Russia’s bidding is the only known instance of Ukraine interfering with people working directly for one of the candidates running for President. It is the only known instance of Ukrainian interference in 2016.

In early January, Manafort would meet with a senior Deripaska associate in a meeting set up by another Deripaska associate sanctioned along with a bunch of GRU officers to “recreat[e] old friendship” between Deripaska and Manafort.

Shortly thereafter (possibly the day he returned, on January 12), Manafort reportedly told Reince Priebus to undercut claims that Trump had close ties to Russia by debunking the Steele dossier, a strategy that — because the dossier turned out to be largely shit and possible disinformation — turned out to be wildly successful. As the DOJ IG Report describes in new detail, Christopher Steele had been working for Deripaska in an effort to help the oligarch settle his score with Manafort during the period he was working on the dossier.

From that point forward, Manafort would continue to pursue a “peace” plan in Ukraine that would give Russia what it wanted up until shortly before he was jailed in June 2018.

These are the events that about which Paul Manafort lied to prevent Mueller from fully understanding. To give Manafort an incentive to lie, John Dowd started telling him he would be “taken care of” in early 2018. Then, around the time he faced jail, Trump started making those pardon offers more explicit.

On June 15, 2018, the day the judge presiding over Manafort’s D.C. case was considering whether to revoke his bail, the President said that he “felt badly” for Manafort and stated, “I think a lot of it is very unfair.” And when asked about a pardon for Manafort, the President said, “I do want to see people treated fairly. That’s what it’s all about.” Later that day, after Manafort’s bail was revoked, t.he President called it a ” tough sentence” that was “Very unfair!” Two days later, the President’s personal counsel stated that individuals involved in the Special Counsel’s investigation could receive a pardon ” if in fact the [P]resident and his advisors .. . come to the conclusion that you have been treated unfairly”-using language that paralleled how the President had already described the treatment of Manafort.

These details — about what really happened in that meeting on August 2, 2016 and what Manafort did afterwards — are some of the things that Trump successfully obstructed the Mueller investigation in an effort to cover up.

And around the time Mueller publicly announced that Manafort had breached his plea deal by lying about all these things, Rudy Giuliani launched the campaign that would ultimately lead to getting the anti-corruption Ambassador in Ukraine, Marie Yovanovitch, fired, then would subsequently lead Trump to demand (in the same call while attacking Mueller) that the newly elected anti-corruption President of Ukraine, Volodymyr Zelensky, gin up investigations into his opponents Hillary Clinton and Joe Biden. Rudy conducted that campaign, significantly, while consulting Manafort in prison, and the effort is, at least in part, an effort to give Trump an excuse to pardon Manafort so Manafort will continue to remain silent about what really happened.

The Republican Party spent the entire day yesterday claiming that Donald Trump demanded those investigations out of concern for corruption in Ukraine. The Republican Party claimed, with a straight face, that the man who obstructed an investigation into what his own campaign manager did to get the pro-corruption pro-Russian party in Ukraine to pay him $2.4 million while he worked for Trump for “free,” opposed corruption in Ukraine.

This is the story the Democrats need to lay out over the next several weeks. The Republicans don’t much care that their arguments are transparently ridiculous. They care about defending a process that, at least in part, is an effort to make sure Paul Manafort never tells the truth about what happened in 2016.

When Your Joint Defense Agreement with the Russian Mob Blows Up in Your Face

November 4, 2019/76 Comments/in 2016 Presidential Election, 2020 Presidential Election, Impeachment /by emptywheel

Last month, I argued that the John Dowd letter mapping out what amounted to a Joint Defense Agreement between the President, Rudy Giuliani, Lev Parnas, Igor Fruman, and Dmitry Firtash (with Victoria Toensing, Joe DiGenova, and Dowd himself as the glue holding this orgy of corruption together) would one day go in a museum to memorialize how crazy things are. Right alongside that — I think after reading this NYT story — will go Trump’s written waiver of privilege as obtained by Jay Sekulow.

Mr. Parnas initially remained in Mr. Trump’s camp after House Democrats on Sept. 30 requested documents and testimony from him and Mr. Fruman. The men hired John Dowd, a lawyer who had earlier represented the president at one stage of the investigation by Robert S. Mueller III, the special counsel, into Russian interference in the 2016 election.

Mr. Trump signed off on the hiring of Mr. Dowd, according to an Oct. 2 email reviewed by The New York Times.

“I have discussed the issue of representation with the president. The president consents to allowing your representation of Mr. Parnas and Mr. Furman,” Jay Sekulow, another lawyer for Mr. Trump, wrote to Mr. Dowd, misspelling Mr. Fruman’s surname.

Dowd claims, his batshit letter notwithstanding, there was no tie between his representation of Trump and the magical selection of a bunch of grifters involved in Trump’s efforts to coerce electoral advantage from foreign countries.

Mr. Dowd said in an interview that Mr. Trump’s approval was sought “simply as a courtesy to the president,” because of the lawyer’s previous work for him. Mr. Dowd said he still represents Mr. Fruman.

A person close to Mr. Trump said that the email did not demonstrate that the president knew Mr. Parnas or Mr. Fruman personally but rather knew of them from media reports.

But now Parnas has decided to cooperate with the impeachment inquiry because Trump pretended not to know Parnas.

“We are willing to comply with the subpoena to the extent that it does not violate any appropriate privilege that Mr. Parnas may properly invoke,” said Joseph A. Bondy, who along with Edward B. MacMahon, Jr. now represents Mr. Parnas.

Mr. Bondy said that given the federal criminal charges, his client may invoke his right under the Fifth Amendment not to incriminate himself.

The turnabout occurred after Mr. Trump denied knowing Mr. Parnas when he was arrested.

“Mr. Parnas was very upset by President Trump’s plainly false statement that he did not know him,” said Mr. Bondy, whose client has maintained that he has had extensive dealings with the president.

This move comes after Parnas’ (alleged) partner in crime, Igor Fruman, met spectacular failure at getting his bail conditions changed, after the prosecutor provided compelling evidence he tried to flee the country as soon as Congress subpoenaed him.

“What is clear is he was subpoenaed by Congress on October 7th, on the 8th he booked a one-way flight to Vienna, and on the 9th he was arrested on the jetway,” Roos said. “What was his reason to leave on such short notice? … Why such a rush to leave the country?”

Roos went on to detail Fruman’s many financial and political connections to Europe, attempting to demonstrate that Fruman could live a very pleasant life abroad if he were able to flee.

“He operates a bar called Buddha Bar” abroad, Roos said. He held up a printout of a glossy hotel brochure for the court to see, saying it listed Fruman as the president and CEO of a “luxury group” that owns a hotel, “restaurants, a beach club, and retail stores,” Roos told the court.

So maybe Parnas decided that “cooperating” (and I mean those scare quotes to be enormous) with Congress might be a quicker path to freedom.

Most other times that someone has protected Trump by demanding a pardon, Trump still held the leverage (in part, because they were dealing with DOJ, not an impeachment inquiry).

But at this point, I suspect, Parnas holds the upper hand, in part because SDNY is not that far into its investigation of the larger point of Parnas’ funding of the Republican Party (meaning, he has a pretty good idea of how bad things could get if the investigation is allowed to proceed unimpeded), and in part because the impeachment inquiry makes Parnas’ knowledge a far greater risk to Trump. He may be a grifter, but he put the pieces into place to ensure he could take others down with him. And his marks were very easy marks. Plus, given he can claim both attorney-client and Fifth Amendment privileges, he may be able to neatly tailor what information he wants to release.

On the Potential Viability of Foreign Agent Charges for Rudy Giuliani

October 16, 2019/40 Comments/in emptywheel /by emptywheel

Since the NYT revealed that SDNY is investigating Rudy Giuliani for what they call “lobbying” laws,

Mr. Lutsenko initially asked Mr. Giuliani to represent him, according to the former mayor, who said he declined because it would have posed a conflict with his work for the president. Instead, Mr. Giuliani said, he interviewed Mr. Lutsenko for hours, then had one of his employees — a “professional investigator who works for my company” — write memos detailing the Ukrainian prosecutors’ claims about Ms. Yovanovitch, Mr. Biden and others.

Mr. Giuliani said he provided those memos to Secretary of State Mike Pompeo this year and was told that the State Department passed the memos to the F.B.I. He did not say who told him.

Mr. Giuliani said he also gave the memos to the columnist, John Solomon, who worked at the time for The Hill newspaper and published articles and videos critical of Ms. Yovanovitch, the Bidens and other Trump targets. It was unclear to what degree Mr. Giuliani’s memos served as fodder for Mr. Solomon, who independently interviewed Mr. Lutsenko and other sources.

Mr. Solomon did not immediately respond to a request for comment.

The lobbying disclosure law contains an exemption for legal work, and Mr. Giuliani said his efforts to unearth information and push both for investigations in Ukraine and for news coverage of his findings originated with his defense of Mr. Trump in the special counsel’s investigation.

He acknowledged that his work morphed into a more general dragnet for dirt on Mr. Trump’s targets but said that it was difficult to separate those lines of inquiry from his original mission of discrediting the origins of the special counsel’s investigation.

Mr. Giuliani said Mr. Lutsenko never specifically asked him to try to force Ms. Yovanovitch’s recall, saying he concluded himself that Mr. Lutsenko probably wanted her fired because he had complained that she was stifling his investigations.

“He didn’t say to me, ‘I came here to get Yovanovitch fired.’ He came here because he said he had been trying to transmit this information to your government for the past year, and had been unable to do it,” Mr. Giuliani said of his meeting in New York with Mr. Lutsenko. “I transmitted the information to the right people.”

And since the WSJ reported that Pete Sessions — named as Congressman 1 in the Lev Parnas/Igor Fruman indictment — was cooperating with a grand jury subpoena targeting Rudy,

A grand jury has issued a subpoena related to Manhattan federal prosecutors’ investigation into Rudy Giuliani, seeking documents from former Rep. Pete Sessions about his dealings with President Trump’s personal lawyer and associates, according to people familiar with the matter.

The subpoena seeks documents related to Mr. Giuliani’s business dealings with Ukraine and his involvement in efforts to oust the U.S. ambassador in Kyiv, as well as any interactions between Mr. Sessions, Mr. Giuliani and four men who were indicted last week on campaign-finance and conspiracy accounts, the people said.

Mr. Sessions’ knowledge of Mr. Giuliani’s dealings is a primary focus of the subpoena, the people said.

There has been a closer review of whether it would be possible to indict the President’s personal lawyer under foreign agent laws, with broad consensus that what Rudy is doing is actually covered by FARA — and not just his work for Ukraine, but also (among other places) for Turkey.

But there have been a number of claims that, I think, have been too pat about how easy or hard this is going to be.

Greg Craig, Tony Podesta, Vin Weber, and Bijan Kian are not apt precedents

First, a number of people have looked at how SDNY considered — but did not charge — Greg Craig, Tony Podesta, and Vin Weber under FARA, suggesting the same considerations would hold true with Rudy. Others have looked at Greg Craig (who was prosecuted but acquitted in DC for FARA after SDNY decided not to charge it) and Bijan Kian (who was convicted but then had his conviction thrown out by Judge Anthony Trenga based on the legal theory DOJ used) to suggest these cases are too difficult to charge to get Rudy.

It is absolutely the case that when powerful men with skilled lawyers have been pursued under FARA in recent years, DOJ has succeeded not in trial, but instead has gotten either plea deals or failed at trial (and that may have been one of the facts behind Mueller’s decision to strike a plea deal with Paul Manafort). That is sound evidence that SDNY is no doubt aware of.

But several things distinguish Rudy.

Most notably, all of those earlier cases came before DOJ’s newfound commitment to prosecuting FARA, with Mike Flynn prosecutor Brandon Van Grack taking over where a woman named Heather Hunt had been in charge before. At a minimum, that means a process that originally took place with Craig, Podesta, Weber, and Kian under an assumption that FARA would be treated solely as a registration issue may now be taking place under an assumption that violations of FARA — presumably to include both a failure to register and (what most charges have been so far) false statements under registration — can be prosecuted. That assumption would dramatically change the attention with which DOJ would document their communications, so prosecutors would not now be stuck going to trial (as Craig’s prosecutors were) without having DOJ’s documentation of a key meeting.

Notably, the same thing that triggered the FARA prosecution of Mike Flynn — concerns raised by Congress — happened last year when seven Democratic Senators wrote National Security Division head John Demers asking for a review. So there may well be documentation of Rudy’s claims about whether he does or does not need to register that SDNY is building a prosecution around.

Plus, one thing clearly distinguishes Rudy from all these other men. Rudy is not taking this investigation seriously, and does not have a lawyer reviewing his exposure. From reports, he may not have the ready cash to pay the likes of Rob Kelner (Flynn’s original, very competent, lawyer) or Robert Trout (Kian’s excellent lawyer). So he may be doing things now (not least, running his mouth on TV and making public statements about who he works for and how it gets paid) that put him at greater exposure.

Rudy G’s efforts to implicate State and DOJ (and the President) in his work

That said, another thing distinguishes Rudy from these past cases. Since the whistleblower complaint got made public, he has spent most of his time insisting that everything he did, he did with the awareness and involvement of — at least — the State Department. And in Trump’s July 25 call to Volodymyr Zelensky, he invoked Bill Barr’s name right alongside his nominal defense attorney.

Both foreign agent statutes (FARA — the one being discussed for Rudy, and 18 USC 951 — another one, with more flexibility, that Kian was charged under) require registration with the Attorney General. And while telling foreigners you’re negotiating with that the Attorney General will be by soon to pick up the disinformation demanded does not fulfill the requirements for registry (in part, the point of registering is to provide a paper trail so the public can track who is paying for what), it does change things that Rudy is suggesting that his work has the imprimatur of official policy to it.

That said, the assumption that implicating powerful government figures will keep you safe is a dangerous proposition. If the easiest way to end the Ukraine inquiry is to blame Rudy for it all (and if that’s still possible after several weeks of damning testimony), that may well come to pass.

And if Bill Barr needs to greenlight a FARA prosecution of Rudy as a way to minimize the damage to the Administration, and to himself, he may well do that (yet another reason why he should have recused long ago).

That’s all the more true given that most of Trump’s aides seem to recognize how damaging Rudy is for Trump’s exposure. If Trump won’t separate himself from Rudy, his lackeys might one day decide, then separate Rudy from Trump by prosecuting him, the same way they separated Michael Cohen from Trump.

That said, with Trump, loyalty is always transactional. And if he believes Rudy has dirt that can bring him down — and given the likelihood some of what Rudy is doing is the continuation of what Paul Manafort had been doing since August 2, 2016, that may be true — then Trump will defend Rudy’s work even if it means claiming everything he did operated under Article II authority.

The additional factor: ConFraudUs

The discussions about Rudy’s exposure under FARA, however, seem not to have considered another factor: that Lev Parnas and Igor Fruman have already been charged with conspiracy in conjunction with actions Rudy had a key role in. The Ukrainian grifter indictment charges them with two counts of Conspiracy to Defraud the US for hiding what money was behind their influence campaign on Ukraine (count 1) and Nevada marijuana (count 4), as well as False Statements to the FEC (count 2) and falsification of records (count 3) tied to the Ukraine influence operation. Counts 1-3 all pertain to the Ukrainian grifters laundering of campaign funds through Global Energy Producers, a front that (SDNY alleges) they falsely claimed was “a real business enterprise funded with substantial bona fide capital investment,” the major purpose of which “is energy trading, not political activity.” Those funds went, among other places, to the Trump related Super PAC America First Action and to Congressman Sessions.

Rudy has equivocated about his relationship to the Ukrainian grifters (and claims it goes through Fraud Guarantee, not GEP). But John Dowd, writing as the grifters’ lawyer, already stated for the record that he does have ties and those ties relate to his representation of the President. That is, the grifters are working for him, even while he works for them.

That’s important because Sessions’ statements have denied any official action in response to meetings with the grifters, but he also had meetings with Rudy in the time period, official action in response to which he has not denied. In addition, Rudy (whom Sessions says he has been friends with for three decades) also headlined a fundraiser for Sessions. And on top of the straw donations the grifters gave Sessions directly, America First Action gave Sessions far more to him, $3 million, the indictment notes twice.

In other words, while Sessions has denied doing anything in response to the grifters’ meetings, he has not denied doing anything in response to Rudy’s communications with him. If he sent his letter calling for the ouster of Marie Yovanovitch in response to a request from Rudy — whose finances are inextricably tied to the grifters — then it may be fairly easy to add him to the conspiracy the (successful) object of which was to get Yovanovitch fired. The propaganda Rudy sent (as laid out by NYT, and which the State IG already sent to the FBI earlier this year) would then simply be part of the conspiracy.

A few more points. There’s a passage of the indictment included to substantiate the allegation that the grifters were affirmatively trying to hide their purpose.

Indeed, when media reports about the GEP contributions first surfaced, an individual working with PARNAS remarked, “[t]his is what happens when you become visible … the buzzards descend,” to which PARNAS responded, “[t]hat’s why we need to stay under the radar…”

The indictment doesn’t disclose a number of details about this communication: who the interlocutor is, how it was collected, and whether it involved a mere warrant (for stored communications such as email or texts) or a wiretap. But particularly given the seeming overlap between these activities and those of people we know were surveilled during the period in question, it’s a pregnant inclusion in the indictment. It suggests the Feds may already be privy to far more about this scheme and the reasons the grifters might want it suppressed. Add that to the fact that, as WSJ reported, the Feds already have Rudy’s bank records, which will show whether he really worked for Fraud Guarantee or whether that, like GEP, is just a front.

Cui bono

Finally, consider this. The indictment says that the grifters were pushing to oust Yovanovitch to benefit particular unnamed Ukrainians’ interests.

[T]hese contributions were made for the purpose of gaining influence with politicians so as to advance their own personal financial interests and the political interests of Ukrainian government officials, including at least one Ukrainian government official with whom they were working.

[snip]

At and around the time PARNAS and FRUMAN committed to raising those funds for [Sessions], PARNAS met with [SESSIONS] and sought [his] assistance in causing the U.S. Government to remove or recall [Yovanovitch]. PARNAS’s efforts to remove the Ambassador were conducted, at least in part, at the request of one or more Ukrainian government officials.

According to NBC, the Ukrainian in question was Yurii Lutsenko. But Lutsenko has since been ousted, and he has reneged on statements elicited by Rudy implicating the Bidens. More importantly, one of the promises Zelensky made in his July 25 call to Trump was to put in his own prosecutor who would pursue the two investigations — to trump up a claim Ukraine was behind the election tampering in 2016, and to invent evidence against Hunter Biden — that Trump wanted.

The President: Good because I heard you had a prosecutor who was very good and he was shut down and that’s really unfair. A lot of people are talking about that, the way they shut your very good prosecutor down and you had some very bad people involved. Mr. Giuliani is a highly respected man. He was the mayor bf New York Ci:ty, a great mayor, and I would like him to call you. I will ask him to call you along with the Attorney General. Rudy very much knows what’s happening and he is a very capable guy. If you could speak to him that would be great. The former ambassador from the United States, the woman, was bad news and the people she was dealing with in the Ukraine were bad news so I just want to let you know that. The oteer thing, There’s a lot of talk about Biden’s son. that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the Attorney General would be great. Biden went around bragging that he stopped the prosecution so if you can look into it … It sounds horrible to me.

President Zelenskyy: I wanted to tell ·you about the prosecutor. First of all I understand arid I’m knowledgeable about the situation. Since we have won the absolute majority in our Parliament; the next prosecutor general will be 100% my person, my candidate, who will be approved, by the parliament and will start as a new prosecutor in September. He or she will look. into the situation, specifically to the company that you mentioned in this issue.

Which is what led to Lutsenko’s ouster.

Moreover, the prosecutor Biden shut down was not Lutsenko, but Viktor Shokin, who has written affidavits which then got fed to John Solomon on behalf of Dmitry Firtash, who is trying hard to avoid extradition (on bribery charges) to the US.

That — plus the financial and legal ties between Firtash and the grifters — suggests there may be other Ukrainians on whose behalf the grifters were working to get Yovanovitch withdrawn. Firtash is certainly one. A corrupt prosecutor with ties to Russian intelligence, Kostiantyn Kulyk, who had worked for all these guys — and who is behind a dossier on accusing Hunter Biden of corruption — may be another. That is, Yovanovitch may have been the impediment not to inventing dirt on the Bidens, which is a fairly easy ask, but instead on creating the pre-conditions for people like Firtash to go free (which would also explain the natural gas angle).

All of which is to say that it would be a fairly trivial matter to establish the evidence to charge Rudy in ConFraudUs along with the Ukrainian grifters, as SDNY already has a lot of the evidence it would need.

Yes, Rudy Giuliani is, by all appearances, in blatant violation of FARA. Yes, he may get away with that, in part because DOJ hasn’t yet figured out hard to charge it consistently (though knows what not to do given recent history), and in part because he has made sure to implicate Trump and his cabinet officials.

But there’s a larger question about whether those same financial ties expose Rudy for much uglier conspiracy charges.

The President’s Joint Defense Agreement with the Russian Mob

October 12, 2019/135 Comments/in 2016 Presidential Election, 2020 Presidential Election, Mueller Probe /by emptywheel

If we survive Trump and there are still things called museums around that display artifacts that present things called facts about historic events, I suspect John Dowd’s October 3 letter to the House Intelligence Committee will be displayed there, in all its Comic Sans glory.

In it, Dowd memorializes a conversation he had with HPSCI Investigation Counsel Nicholas Mitchell on September 30, before he was officially the lawyer for Lev Parnas and Igor Fruman, now placed in writing because he had since officially become their lawyer. He describes that there is no way he and his clients can comply with an October 7 document request and even if he could — this is the key part — much of it would be covered by some kind of privilege.

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

Once that letter was sent, under penalty of prosecution for false statements to Congress, it became fact: Parnas and Fruman do work for Rudy Giuliani in the service of the President of the United States covered by privilege, Rudy does work for them covered by privilege, and they also do work for Joseph Di Genova and Victoria Toensing about this matter that is covered by privilege.

Dowd might be forgiven if he immediately adopted the strategy that worked so well in guiding Trump through the Mueller investigation: just engage in a 37-person conspiracy to obstruct justice and name it a Joint Defense Agreement. Indeed, there are even similarities with current events. Then, John Dowd, Jay Sekulow, and Rudy Giuliani offered things of value to the others in the JDA — pardons — in exchange for their silence or even lies. Conspicuously, Toensing represented two people that — the Mueller Report seems to suggest — weren’t entirely candid in their testimony, Erik Prince (who managed to lose texts that explained why he was taking back channel meetings with Russians) and Sam Clovis (who sustained his lack of memory of being told that Russians were offering emails long enough for George Papadopoulos to change his mind on that front). Papadopoulos even managed to call Marc Kasowitz, when he still represented the President, to ask if he also wanted to represent a coffee boy with an inclination to lie to the FBI. The strategy all built to its successful crescendo when, instead of cooperating with prosecutors as he signed up to do, Paul Manafort instead figured out what they did and didn’t know, lied to keep them confused, and reported it all back through his own attorney, Kevin Downing, and Rudy to the President.

It was never really clear who was paying the lawyers (aside from the RNC paying Hope Hicks’ lawyers and some other key staffers). And as details of Manafort’s lies came out, it became clear there was some kind of kick-back system to keep the lawyers paid.

Still, Mueller never tied Manafort’s trading of campaign strategy for considerations on Ukraine and payment by Ukrainian and Russian oligarchs to the President. And so it may have seemed sensible for Dowd, in a bit of a pinch, to adopt the same strategy, with Rudy representing everyone, Dowd representing the Ukrainian grifters, and Kevin Downing even filling in in a pinch.

It all might have worked, too, if Parnas and Fruman hadn’t gotten arrested before they managed to flee the country, headed for what seems to have been a planned meeting a day later with their sometime attorney Rudy Giuliani in Vienna, just one day after a lunch meeting with him at Trump Hotel across the street from the Department of Justice that was busy inking an indictment against the Ukrainians even as they paid money to Trump Organization for their meal.

I mean, it still could work. Trump is still the President and DOJ, at least, will give some consideration to the attorney-client claims, so long as Rudy and Trump can maintain the illusion that Rudy is and was really doing legal work for the President.

But something that Dowd may not have considered, before he sent a letter to Congress laying out an incestuous nest of ethical atrocities, is that by the time he sent the letter, DiGenova and Toensing were on the record as representing Dmitry Firtash, a Ukrainian oligarch who was named in some of the early search warrants targeting Paul Manafort. And in March, Rudy Giuliani went on the record to explain that Firtash was, “one of the close associates of [Semion] Mogilevich, who is the head of Russian organized crime, who is Putin’s best friend.” Yesterday, Reuters closed the circle, making it clear that Parnas and Fruman work for Firtash, the former as a translator for DiGenova and Toensing’s representation of Firtash.

Firtash, by the way, is in Vienna, where Parnas and Fruman attempted to flee and where the President’s lawyer was planning to meet them a day later.

Thus, when Dowd wrote Congress, explaining that Rudy worked for both Trump and the Ukrainian grifters, and the Ukrainian grifters worked for DiGenova and Toensing, he was asserting that the President is a participant in an ethical thicket of legal representation with a mob-linked Ukrainian oligarch fighting extradition (for bribery) to the United States. And all of that, Dowd helpfully made clear, related to this Ukraine scandal (otherwise he could not have invoked privilege for it).

In other words, the President’s former lawyer asserted to Congress that the President and his current lawyer are in some kind of JDA from hell with the Russian mob, almost certainly along with the President’s former campaign manager, who apparently gets consulted (via Kevin Downing) on these matters in prison.

If that weren’t all overwhelming enough, there’s one more twist.

The reason Rudy was emphasizing the mob ties of his current partner in crime lawyering, Dmitry Firtash, back in March is because the President’s former former lawyer, Michael Cohen, shared a lawyer at the time with Firtash, Lanny Davis. Davis, the Democratic version of Paul Manafort, is every bit as sleazy as him (which should have been a huge red flag when Davis was parading Cohen around as a big hero). Curiously, at a time when Davis was also representing Firtash and Cohen was furiously trying to come up with some incriminating evidence he could tell prosecutors that might keep him out of jail, Cohen apparently didn’t mention Ukraine at all. Now, the lawyer that Cohen used to but no longer shares with Firtash claims he has some insight onto these Ukrainian dealings. That’s likely just a desperate effort to stay relevant. But who knows?

Until then, John Dowd’s desperate attempt to make this scandal go away the same way he made the Russia scandal go away (if you pretend they’re not actually all the same scandal and thus even the past JDA strategy may end up failing) at the same time involved admitting, in a letter to Congress, that his former client and his then current not-yet-but-soon-to-be-indicted clients are in a Joint Defense Agreement with the Russian mob.

Don’t take my word for it. Take John Dowd’s legal representation to Congress.

DOJ Confirms that Trump’s Anti-Biden Propagandists Were in the Employ of a Russian

October 10, 2019/107 Comments/in 2016 Presidential Election, 2018 Mid-Term Election, 2020 Presidential Election /by emptywheel

Lev Parnas and Igor Fruman were arrested last night as they tried to flee the country in advance of Congressional subpoenas for their testimony. These are the men who, their recently hired attorney, former Trump personal attorney John Dowd, described how intertwined their actions were with the President’s in an effort to excuse them from testifying in the House impeachment inquiry.

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

The indictment charging Parnas and Fruman with multiple counts of conspiracy lays out how they pursued policies pushed by a Ukrainian politician (and, not coincidentally, Trump), in part by getting Congressman Pete Sessions’ help.

[T]hese contributions were made for the purpose of gaining influence with politicians so as to advance their own personal financial interests and the political interests of Ukrainian government officials, including at least one Ukrainian government official with whom they were working. For example, in or about May and June 2018, PARNAS and FRUMAN committed to raise $20,000 or more for a then-sitting U.S. Congressman [Sessions], who had also been the beneficiary of approximately $3 million in independent expenditures by [one of the PACs they ran] during the 2018 election cycle. PARNAS and FRUMAN had met [Sessions] at an event sponsored by an independent expenditure committee to which FRUMAN had recently made substantial contribution. During the 2018 election cycle, [Sessions] had been the beneficiary of approximately $3 million in independent expenditures by [their PAC]. At and around the same time PARNAS and FRUMAN committed to raising those funds for [Sessions], PARNAS met with [Sessions] and sought [his] assistance in causing the U.S. Government to remove or recall the then-U.S. Ambassador to Ukraine []. PARNAS’s efforts to remove the Ambassador were conducted, at least in part, at the request of one or more Ukrainian government officials.

This, of course, is the recall of Marie Yovanovitch, that Trump discussed in his quid pro quo call with Volodymyr Zelensky.

What the indictment is less clear about is who the Russian bankrolling all this is. A key part of Parnas and Fruman’s crime is that they were laundering funds for “a foreign national Russian citizen and businessman.”

From in or about June 2018 through April 2019, LEV PARNAS, IGOR FRUMAN, DAVID CORREIA, and ANDREY KUKUSHKIN, the defendants, and others known and unknown, conspired to make political donations — funded by Foreign National-1 [the Russian] — to politicians and candidates for federal and State office to gain influence with candidates as to policies that would benefit a future business venture.

Putting together the Dowd letter and the indictment, it becomes clear that the John Solomon propaganda that Trump was pushing (and which Rudy sent to Mike Pompeo’s State Department as part of the effort to get rid of Yovanovitch and which Lindsey Graham just invited Rudy to come present to the Senate Judiciary Committee) was funded by an as yet unnamed Russian.

It was only a matter of time before Trump was implicated in ConFraudUs with Russia.

Update: Now add this passage from Trump’s call to Zelensky, and it becomes hard to see how Trump is not implicated in the charged conspiracy.

President Zelenskyy: Yes it is. very important for me and everything that you just mentioned earlier. For me as a President, it is very important and we are open for any future cooperation. We are ready to open a new page on cooperation in relations between the United States and Ukraine. For that purpose, I just recalled our ambassador from United States and he will be replaced by a very competent and very experienced ambassador who will work hard on making sure that our two nations are getting closer. I would also like and hope to see him having your trust and your confidence and have personal relations with you so we can cooperate even more so. I will personally tell you that one of my assistants spoke with Mr. Giuliani just recently and we are hoping very much that Mr. Giuliani will be able to travel to Ukraine and we will meet once he comes to Ukraine. I just wanted to assure you once again that you have nobody but friends around us. I will make sure that I surround myself with the best and most experienced people. I also wanted to tell you that we are friends. We are great friends and you Mr. President have friends in our country so we can continue our strategic partnership. I also plan to surround myself with great people and in addition to that investigation [into the source of the Russian investigation], I guarantee as the President of Ukraine that all the investigations will be done openly and candidly. That I can assure you.

The Pre·sident: Good because I heard you had a prosecutor who was very good and he was shut down and that’s really unfair. A lot of people are talking about that, the way they shut your very good prosecutor down and you had some very bad people involved. Mr. Giuliani is a highly respected man. He was the mayor of New York Ci:ty, a great mayor, and I would like him to call you. I will ask him to call you along with the Attorney General. Rudy very much knows what’s happening and he is a very capable guy. If you could speak to him that would be great. The former ambassador from the United States, the woman, was bad news and the people she was dealing with in the Ukraine were bad news so I just want to let you know that. The otter thing, There’s a lot of. talk about Biden’s son, that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the Attorney General would be great. Biden went around bragging that he stopped the prosecution so if you can look into it … It sounds horrible to me.

President Zelenskyy: I wanted to tell ·you about the prosecutor. First of all I understand and I’m knowledgable about the situation. Since we have won· the absolute majority in our Parliament, the next prosecutor general will be 100% my person, my candidate, who will be approved, by the parliament and will start as a new prosecutor in September. He or she will look into the situation, specifically to the company that you mentioned in this issue. The issue of the investigation of the case is actually the issue of making sure to restore the honesty so we will take care of that and will work on the investigation of the case. On top of that, I would kindly ask you if you have any additional information that you can provide to us, it would be very helpful for the investigation to make sure that we administer justice in our country with regard to the Ambassador to the United States from Ukraine as far as I recall her name was Ivanovich. It was great that you were the first one. who told me that she was a bad ambassador because I agree with you 100%. Her attitude towards me was far from the best as she admired the previous President and she was on his side. She would not accept me as a new President well enough.

The President: Well, she’s going to go through some things.

At a minimum, this makes it clear that the withdrawal of Yovanovitch — which was done with the involvement of Rudy and Parnas –was tied up in the quid pro quo extorted on that call. Indeed, Trump’s suggestion she was “going to go through some things” suggests far worse.

But it is also at least likely that one of the two prosecutors Rudy was pitching was the Ukrainian involved mentioned elsewhere in this indictment.

All of which provides substantial evidence that the quid pro quo Trump engaged in on July 24 — the day after Mueller testified before Congress — is just a continuation of the conspiracy charged in the Parnas and Fruman indictment.