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The Republicans Complaining about Mueller’s Non-Exoneration of Trump Don’t Care that He Exonerated Jeff Sessions

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One of the new attacks Republicans launched on the Mueller Report yesterday is that Mueller explicitly did not exonerate Trump, complaining that prosecutorial discretion doesn’t include the power to exonerate. Here’s how John Ratcliffe put it yesterday.

The special counsel’s job — nowhere does it say that you were to conclusively determine Donald Trump’s innocence, or that the special counsel report should determine whether or not to exonerate him. It not in any of the documents. It’s not in your appointment order. It’s not in the special counsel regulations. It’s not in the OLC opinions. It’s not in the Justice Manual. And it’s not in the Principles of Federal Prosecution.

Nowhere do those words appear together because, respectfully — respectfully, Director, it was not the special counsel’s job to conclusively determine Donald Trump’s innocence or to exonerate him. Because the bedrock principle of our justice system is a presumption of innocence. It exists for everyone. Everyone is entitled to it, including sitting presidents. And because there is a presumption of innocence, prosecutors never, ever need to conclusively determine it.

Except that Ratcliffe and other Republicans didn’t complain and aren’t complaining about the point in his report, as released, where he did exonerate someone, with Bill Barr’s approval: Jeff Sessions.

As set forth in Volume I, Section IV.A.6, supra, the investigation established that, while a U.S. Senator and a Trump Campaign advisor, former Attorney General Jeff Sessions interacted with Russian Ambassador Kislyak during the week of the Republican National Convention in July 2016 and again at a meeting in Sessions’ s Senate office in September 2016. The investigation also established that Sessions and Kislyak both attended a reception held before candidate Trump’s foreign policy speech at the Mayflower Hotel in Washington, D.C., in April 2016, and that it is possible that they met briefly at that reception.

The Office considered whether, in light of these interactions, Sessions committed perjury before, or made false statements to, Congress in connection with his confirmation as Attorney General. In January 2017 testimony during his confirmation hearing, Sessions stated in response to a question about Trump Campaign communications with the Russian government that he had “been called a surrogate at a time or two in that campaign and I didn’t have – did not have communications with the Russians.” In written responses submitted on January 17, 2017, Sessions answered “[n]o” to a question asking whether he had “been in contact with anyone connected to any part of the Russian government about the 2016 election, either before or after election day.” And, in a March 2017 supplement to his testimony, Sessions identified two of the campaign-period contacts with Ambassador Kislyak noted above, which had been reported in the media following the January 2017 confirmation hearing. Sessions stated in the supplemental response that he did “not recall any discussions with the Russian Ambassador, or any other representatives of the Russian government, regarding the political campaign on these occasions or any other occasion.”

Although the investigation established that Sessions interacted with Kislyak on the occasions described above and that Kislyak mentioned the presidential campaign on at least one occasion, the evidence is not sufficient to prove that Sessions gave knowingly false answers to Russia-related questions in light of the wording and context of those questions. With respect to Sessions’s statements that he did “not recall any discussions with the Russian Ambassador . .. regarding the political campaign” and he had not been in contact with any Russian official “about the 2016 election,” the evidence concerning the nature of Sessions’s interactions with Kislyak makes it plausible that Sessions did not recall discussing the campaign with Kislyak at the time of his statements. Similarly, while Sessions stated in his January 2017 oral testimony that he “did not have communications with Russians,” he did so in response to a question that had linked such not have communications with Russians,” he did so in response to a question that had linked such communications to an alleged “continuing exchange of information” between the Trump Campaign and Russian government intermediaries. Sessions later explained to the Senate and to the Office that he understood the question as narrowly calling for disclosure of interactions with Russians that involved the exchange of campaign information, as distinguished from more routine contacts with Russian nationals. Given the context in which the question was asked, that understanding is plausible.

Accordingly, the Office concluded that the evidence was insufficient to prove that Sessions was willfully untruthful in his answers and thus insufficient to obtain or sustain a conviction for perjury or false statements. Consistent with the Principles of Federal Prosecution, the Office therefore determined not to pursue charges against Sessions and informed his counsel of that decision in March 2018.

In fact, Mueller must have provided similar explanations in at least four more instances, where he explained why other Trump people didn’t get charged, most often for lying.

But all of those other discussions were redacted under a personal privacy exemption (or, in the FOIA version, a b(5), b(6)/b(7)(C) exemption). Presumably, those other instances were less clearcut, or perhaps they simply weren’t someone as senior as Sessions. But redactions consistently applied would have redacted this passage too, denying Sessions (who would be running for his old Senate seat this year if Trump weren’t still angry that Sessions didn’t act more like Bill Barr while serving as Attorney General) of the public explanation why he wasn’t charged.

Nothing Mueller said yesterday indicated he had any complaints about the redactions in the report (though he was more willing to talk about why Trump Sr. didn’t testify — the discussion of which is partly redacted in the report — than Don Jr, which is redacted under the same grand jury justification).

But in the case of Jeff Sessions, the redaction process was not treated in the way applied with everyone else, especially including mentions of Don Jr. And Republican silence about that inconsistency suggests they don’t really have a principled stance about public decisions of exoneration.

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The Game of Telephone that Has Attorney General William Barr in a Lather

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When, close to the end of a day-long interview with Congress last October, Mark Meadows asked George Papadopoulos what he wanted to tell the American people about himself, the President’s former foreign policy advisor insisted he had had “no Russia connection whatsoever.” Instead, he insisted, the things that happened to him in 2016 and 2017 were just a conspiracy spun by Western diplomats and spies, not Russian ones.

Mr. Papadopoulos. George Papadopoulos has no Russia connection whatsoever, never did. He found himself mired in a Russia conspiracy, which makes no sense to him and I assume probably everyone in this room, and probably half the American public. I had many contacts with western intelligence and western diplomats. Some might have been masquerading as something they were not, like I assume Joseph Mifsud was, if his lawyer is to be believed. Stefan Halper, Alexander Downer. And I just really want to get to the bottom of why I was targeted by these very seasoned diplomats and intelligence officials, and what I was used for. And I think everybody really wants to figure that out, because I think figuring that out will unlock many mysteries in this entire investigation. And that’s why I think — that’s really what I’m at the core of, not the core of a Russia conspiracy.

But when he described what he was thinking when he pled guilty in October 2017 to one false statements charge instead of multiple false statements charges, an obstruction charge, and possibly serving as a unregistered Agent of Israel, Papadopoulos described believing that he was “in the middle of a real Russia conspiracy.”

And just going back in my memory, I guess the logic behind my guilty plea was that I thought I was really in the middle of a real Russia conspiracy, that this was all real, and that I had to plead out or face life in prison, the way they were making it seem.

Over the course of an interview where he frequently contradicted himself, Papadopoulos provided ample evidence that he did — almost certainly correctly — think he was being cultivated by people with ties to Russia during and after the election. There’s the description — the timeline of which Papadopoulos significantly distorts — of how he balked at an offer Sergei Millian made to be paid $30,000 a month so long as he worked in the Administration, but then still spent the night of the inauguration drinking with Millian in DC.

A Mostly talking about the potential that if I had formally left the campaign, which I had considered around certain months, that we would engage in some legitimate business that he might have. And then I made it clear to him that any business that we would be talking about would be completely illegal. I wouldn’t be part of the Trump campaign organization or have absolutely nothing to do with Trump himself if I’m going to work with you, or anybody else, by the way. And then he decided to present some sort of ambiguous business proposal to me. One day, in October or November in Chicago, where I felt that he was wearing a wire or he was setting me up for something about this proposal that he was talking about. He came to Chicago, we met at Trump Tower. He was very nervous, and he started telling me yet this deal that I think is for $30,000 a month, it’s a PR gig for a contact of mine in Russia.

Q Contact of his?

A His. Something — I never, to this day, I never really understood what this was. And but you have to understand, George, that if we do this you still have to work for Trump. And he was looking at me with his eyes really bogged out, very nervous. And I just looked at him, like this guy is on an operation against me right now trying to set me up for something. And I flatly told him, as far as I remember, No, I’m not taking this offer, because it’s illegal what you’re talking about, at least I thought it was illegal.

And there’s the way he moves from his false description that he stopped communicating with Joseph Mifsud in summer 2016 (on October 1, 2016, he sent Mifsud a link over Facebook to the Interfax column that got him fired from the campaign) to describing how Mifsud was actually still reaching out after the FBI interviewed Papadopoulos in January 2017, trying to set him up in business with his Swiss lawyer Stephan Roh.

Q Yes. So you stated earlier that as of summer 2016, you stopped communicating with Mr. Mifsud?

A That’s what I re — I believe that’s when I stopped talking to him, yes.

Q So after you stopped talking to Mr. Mifsud, did he ever attempt to reach out to contact you?

A What I remember is — I don’t know the months, okay? So I’m just letting you know what he was trying to accomplish, after it seems that I kicked him to the side about the campaign involvement, he introduced me over email to his current lawyer, Stephan Roh, as somebody that I might be interested in working with or on a project with. I — then I had a couple of Skype calls with Stephan Roh, and then, I believe, Mifsud was actually reaching out to me at the same time the FBI came to my house.

In both cases, Papadopoulos now dismisses that outreach claiming it came from Western, not Russian, intelligence because the people making the outreach made the claim. Thus the narrative: George has no Russia connection whatsoever, it was all a big Western intelligence trap for Donald Trump.

At the time he did this interview, Papadopoulos had gotten a new lawyer, Caroline Polisi, who was prepping a challenge to his incarceration. The whole interview — which was done without having any documentation that might have forced Papadopoulos to stick to the actual written record — was designed to feed that effort. Polisi repeatedly prevented Democrats from asking legitimate questions about what Papadopoulos actually did — including why he deactivated his Facebook account the day after his second FBI interview and why he called Trump’s then defense attorney, Marc Kasowitz, after he had been asked to wear a wire by the FBI.

But the interview is a significant part of the basis for the current effort to discredit the Russian investigation by declassifying materials that — proponents of the effort, including Trump, Mark Meadows, Jim Jordan, and Attorney General Barr claim — will show that Trump was spied on in inappropriate ways.

Of course, then, as in Barr’s May 1 testimony to Congress, a significant part of the “evidence” that something untoward happened is actually the absence of evidence: because the FBI — having been directed not to do anything overt on this investigation during the campaign precisely to avoid affecting the election — did not interview Papadopoulos until January 2017, Republican staffer Ryan Breitenbach suggests that’s proof of something illegal.

Q We understand now that — I believe, previously, Congressman Ratcliffe was indicating that you are generally considered the predication for the entire Trump-Russia investigation, which we now understand to have started at the end of July of 2016. So between July of 2016 and January 2017, you are the predicate of the investigation, but you’re not interviewed until January of 2017. Is that correct?

A That’s correct.

Q And throughout that intervening period, from July of 2016 through January of 2017, you don’t recall any instances where the FBI or anyone in the U.S. Government was attempting to contact you or interview you?

[snip]

Mr. Papadopoulos. No, no, absolutely not. I don’t have — I don’t recall any U.S. Government official or intelligence official openly reaching out to me to talk about this —

The other pieces of “proof” that something untoward came out of this hearing are even more crazy.

First, there’s Papadopoulos’ suspicion, generated after a year of mostly ignorant claims in the press about Carter Page’s FISA application, suggesting there must have been a FISA order targeting him because the FBI knew, when they first interviewed him in January 2017, that he had significant ties to Israel.

Mr. Papadopoulos. I– the reason I’m suggesting that there was a FISA was because there was tremendous scrutiny on — with my ties to Israel, to the point where I had apparently a formal charge of acting as an agent of Israel, which I don’t know how that’s even possible really, but there was a charge. And by the time I had my first interview with the FBI, they led me to believe that they knew about certain meetings I was having, who I knew in the Israeli Government domestically and abroad. That’s how I remember it. And that they were very angry almost about my ties to Israel, to the extent, as I mentioned, during my second encounter I remember the agent, Curtis Heide, telling me, oh, you don’t want to wear a wire, just know that you’re lucky Israel is an ally or else we would be going after you, something incredibly bizarre.

Mr. Meadows. So what you’re saying is, they had knowledge of private conversations and communications that you had with other individuals that would have taken extraordinary measures to find out. They couldn’t have found it on Facebook or read it in The Hill or someplace.

Mr. Papadopoulos. That’s — that’s what I believe, yes.

To be absolutely clear: I think it quite possible the FBI, later, got a FISA order targeting Papadopoulos (perhaps around April 2017, once they discovered that he had lied at this interview). But it’s unlikely they had one in January 2017, in part because they were unaware of his conversations with Ivan Timofeev. A deep knowledge of his ties to Israel but not his ties to Russian-linked individuals is what you might expect from FISA orders (and 12333 collection and HUMINT) targeting others, not Papadopoulos.

And Mark Meadows, whose job it is to oversee FISA, is supposed to know that. Papadopoulos is not. Nevertheless, Meadows allows a guy who has an ulterior motive but no actual knowledge to convince him of something that Meadows, at least, should have the knowledge to be skeptical of.

Then there’s what Republicans believe will be exculpatory information from a suspected recording taken by Stefan Halper in his FBI-arranged meeting with Papadopoulos in September 2016. The belief there’s a transcript (which may be true) comes not from actual knowledge, but from the fact that Papadopoulos’ original lawyers (who have said publicly there was nothing untoward about his treatment by the FBI) also knew that when Halper met with him, Papadopoulos used the word “treason” to deny any ties to the Russian hack-and-leak operation.

Mr. Meadows. About recordings or transcripts of Mr. Halper?

Mr. Papadopoulos. I never saw anything, but my lawyers, to be clear, they had made a passing remark about something that I said about treason —

Meadows leads Papadopoulos to describe the Halper interview. Because of the cues Meadows uses, which describe “benefitting from Hillary Clinton emails” as “collusion,” in the exchange he gets Papadopoulos describing simply benefitting from the emails (something that the Mueller Report describes Roger Stone to have done, on the orders of then candidate Trump) to be treason.

Mr. Papadopoulos. And after he was throwing these allegations at me, I —

Mr. Meadows. And by allegations, allegations that the Trump campaign was benefiting from Hillary Clinton emails?

Mr. Papadopoulos. Something along those lines, sir. And I think I pushed back and I told him, I don’t know what the hell you’re talking about. What you’re talking about is something along the lines of treason. I’m not involved. I don’t know anyone in the campaign who’s involved. And, you know, I really have nothing to do with Russia. That’s — something along those lines is how I think I responded to this person.

Mr. Meadows. So essentially at this point, he was suggesting that there was collusion and you pushed back very firmly is what it sounds like.

I actually think that if there is a transcript, it would show that what Halper asked more specifically about — and so what Papadopoulos called “treason” — was whether the campaign was involved in or knew of the Russian hacking, not just whether they had worked hard to benefit from the emails after they had been hacked, as Papadopoulos describes here.

And all of a sudden he pulls out his phone — remember, this phone element again — and he puts it in front of him and he begins to start talking about Russia and hacking and if I’m involved, if the campaign is involved, if it’s benefiting the campaign. Something along those lines. I’m sure the transcript exists and you’ve probably read it, so I don’t want to be wrong on exactly what he said.

But Meadows, either because he’s a frightfully stupid man or bad at playing his designated hoaxster role, instead defines “collusion” to be simply benefitting from the emails — something that the campaign did and was still doing at the time of the Halper interview — he sets up that the key point of Papadopoulos’ interview to be that he denied, in strong terms, something that, in fact, the campaign (though Papadopoulos was too junior to be involved) was doing, with the knowledge of Trump himself.

Still, a transcript showing Papadopoulos denying that he knew of any campaign involvement in the emails, even while he labeled some form of it to be treason, would not be exculpatory. Rather, it would explain why, when asked directly about such things the following year, Papadopoulos lied and tried to hide evidence. That is, declassifying a transcript that showed Papadopoulos treated what the campaign was doing as treason would actually be inculpatory because it would explain why he lied: because he thought he might be on the hook for treason.

But Meadows (again, perhaps because he’s a frightfully stupid man) instead believes that if the transcript shows that Papadopoulos pushed back aggressively on a topic that the FBI later showed him to be (and he pled guilty to have) lying about, it would be proof that the investigation should never have started.

Mr. Meadows. So on a scale of 1 to 10, with 10 being the most aggressive in terms of your pushback, what number would you categorize your pushback from Mr. Halper when he was asking you about your involvement with Russia?

Mr. Papadopoulos. Ten.

Mr. Meadows. It’s a ten?

Mr. Papadopoulos. Yeah.

Mr. Meadows. So what you’re telling me is that colluding with the Russians was the last thing on anybody’s mind at that particular point?

Mr. Papadopoulos. Last thing on my mind, certainly, I can only speak for myself.

This thread of questioning is all the more problematic because Papadopoulos answers some questions about what he was doing at the time inconsistently in the hearing, and they’re questions he has obstructed on in the past.

For example, in response to a question from Democratic staffer Susanne Sachsman Grooms, Papadopoulos claims he doesn’t know whether Walid Phares was part of a discussion about setting up a meeting in London with Putin’s office in September 2016, the same month Papadopoulos met Halper.

Q Did you discuss your efforts to set up the Putin-Trump meeting with Mr. Phares?

A I’m not sure he was copied on those particular emails, but I could send whatever emails I have with him to the committee. It’s fine with me.

Papadopoulos admits Republican staffer Art Baker precisely the details he denies to Sachsman Grooms.

And who did you discuss with at the campaign the idea of campaign officials going to go meet with Russian officials abroad? A I believe that there was a short period in which Sam Clovis, myself, and Walid Phares were discussing this potential trip. There could have been others copied on an email, something like that. But that’s what I remember at this moment.

More importantly, as the Mueller Report makes clear, this is a topic that Papapdopoulos refused to cooperate on during his proffers with the FBI. Here are Papadopoulos’ notes planning that “lot of risk meeting,” which the report notes he, “declined to assist in deciphering … telling investigators that he could not read his own handwriting from the journal.”

Similarly, Papadopoulos claims to remember stopping communicating with Mifsud in summer 2016.

Q When was the last time you remember communicating with Professor Misfud?

A Off the top of my memory I think it was the summer of 2016.

Q Do you remember why you stopped communicating with him?

A I can’t remember exactly, I just didn’t really think he was a man of real substance at some point.

Not only did he appear to still be communicating with him in 2017, but an October 1, 2016 Facebook message to Mifsud was among the things the FBI said Papadopoulos was trying to hide when he tried to delete his Facebook account the day after his second FBI interview.

The Facebook account that PAPADOPOULOS shut down the day after his interview with the FBI contained information about communications he had with Russian nationals and other foreign contacts during the Campaign, including communications that contradicted his statements to the FBI. More specifically, the following communications, among others, were contained in that Facebook account, which the FBI obtained through a judicially authorized search warrant.

[snip]

On or about October 1, 2016, PAPADOPOULOS sent [Mifsud] a private Facebook message with a link to an article from Interfax.com, a Russian news website. This evidence contradicts PAPADOPOULOS’s statement to the Agents when interviewed on or about January 27, 2017, that he had not been “messaging” with [Mifsud] during the campaign while “with Trump.”

In other words, at precisely the time he was interviewed by Halper, Papadopoulos was still in touch with Mifsud, and after being arrested for hiding that fact in 2017, he continued to obscure that detail when asked what his mindset was in 2016 when asked about it in 2018.

By all means, let’s see that transcript discussing what Papadopoulos thought amounted to treason. But I doubt it’s going to be exculpatory.

Finally, the craziest aspect of this game of chicken is how the Republicans on the committee repeatedly get him to reveal his beliefs about what happened to him actually come from press reporting on his case.

To explain his belief that Mifsud actually worked for Western intelligence, Papadopoulos cited Chuck Ross.

Papadopoulos continues to tell tales. When giving testimony to Congress, Papadopoulos cited a Daily Caller article to claim that Joseph Mifsud worked with Western intelligence. “I don’t want to espouse conspiracy theories because, you know, it’s horrifying to really think that they might be true, but just yesterday, there was a report in the Daily Caller from his own lawyer that he was working with the FBI when he approached me. And when he was working me, I guess — I don’t know if that’s a fact, and I’m not saying it’s a fact — I’m just relaying what the Daily Caller reported yesterday, with Chuck Ross, and it stated in a categorical fashion that Stephan Roh, who is Joseph Mifsud’s, I believe his President’s counsel, or PR person, said that Mifsud was never a Russian agent.

To explain his belief that there was a transcript of his conversations with Stefan Halper, he cites John Solomon.

And all of a sudden he pulls out his phone — remember, this phone element again — and he puts it in front of him and he begins to start talking about Russia and hacking and if I’m involved, if the campaign is involved, if it’s benefiting the campaign. Something along those lines. I’m sure the transcript exists and you’ve probably read it, so I don’t want to be wrong on exactly what he said. But —

Mr. Meadows. You say a transcript exists. A transcript exists of that conversation?

Mr. Papadopoulos. That’s I guess what John Solomon reported a couple days ago. Mr. Meadows. So are you aware of a transcript existing? I mean —

Mr. Papadopoulos. I wasn’t aware of a transcript existing personally.

And to explain his opinions about “Azra Turk” being a honey pot, he says he has no independent memory, but is relying on what the NYT reported (though I’m not sure which story).

She then apparently — I don’t remember it, I’m just reading The New York Times. She starts asking me about hacking. I don’t remember her actually asking me that, I just read it in The New York Times. Nevertheless, she introduces me the next time to Stefan Halper.

Mr. Meadows. She asked you about hacking?

Mr. Papadopoulos. I don’t remember it. I just — I think I read that particular —

Mr. Meadows. You’ve read that?

Mr. Papadopoulos. Yes, that’s what I — I think I read it in The New York Times.

Much of the current investigation into the investigation, then, stems from a hearing where:

  • Mark Meadows and other Republicans let Papadopoulos testify about what he read in the news, but not key details about his first hand knowledge of events
  • Papadopoulos’ inconsistent testimony replicated his past obstruction
  • Meadows let someone who should know less than Meadows himself does about FISA misrepresent how it works as testimony
  • Once again, FBI’s conservative approach with this investigation is instead cited as proof of spying

This is what has Attorney General in a lather right now: claims originating in this hearing.

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. 

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There’s a Discrepancy about When Papadopoulos Left the Trump Campaign

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The other day I laid out what the campaign officially said about George Papadopoulos’ status on the campaign.

The Mueller Report — based off having a whole bunch of documentation — describes that Papadopoulos got dismissed after he wrote a column arguing against sanctions on Russia.

Papadopoulos was dismissed from the Trump Campaign in early October 2016, after an interview he gave to the Russian news agency InterFax generated adverse publicity.492

492 George Papadopoulos: Sanctions Have Done Little More Than to Turn Russia Towards China, Interfax (Sept. 30, 2016).

A recent profile reveals that Papadopoulos has been lying about the campaign response to his Interfax column (though I think this downplays the encouragement Papadopoulos got from Brian Lanza).

The book claims that Trump headquarters informed him of an interview request from Russian news service Interfax and gave him instructions about what to say, complimenting him afterward. In reality, Interfax contacted Papadopoulos directly, and though the campaign okayed the interview, the feedback afterward apparently wasn’t positive. Papadopoulos wrote to campaign official Michael Glassner to ask if he was, as others had told him, “off the campaign because of an interview I gave.”

Papadopoulos told HJC/OGR something different: He told them he never left the campaign.

Mr. Ratcliffe. How did you leave the campaign? First of all, when did you leave the campaign?

Mr. Papadopoulos. I don’t know if I ever really left the campaign. I think I was involved throughout the whole way in different ways. I mean, one — in one manner I’m helping edit the first foreign policy speech and I’m setting up, helping set up this meeting with the Egyptian President, and then I’m kind of just feeding information into the campaign from March until — all through the transition, quite frankly. So I don’t think I really ever left the campaign, if that makes sense.

Mr. Ratcliffe. Okay.

Mr. Papadopoulos. I was considering leaving, but I don’t think I ever submitted some sort of resignation to the campaign that would — that would suggest I would formally abdicate my duties on the campaign.

The claim he continued through the Transition doesn’t match other things he said in his testimony. But he might want to claim he never left because that gives Republicans a far greater stake into the investigation into him than they otherwise might. By the same token, Trump had an incentive to claim he was a “coffee boy.”

Papadopoulos was never paid, so in a sense, he could never really be dismissed (indeed, he claims he doesn’t have any more paperwork than some emails about when he started; he does seem to have expected he’d get paid, only to discover Trump doesn’t pay anyone. Since he got paid, the distinction here may be semantics. Except that it does significantly change the stakes for the Republican investigation into the investigation.

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. 

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Michael Cohen’s HPSCI Testimony Proves Trump Lied in his Answers to Mueller

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Yesterday, the House Intelligence Committee released transcripts of Michael Cohen’s February 28 and March 6 testimony before the committee. Together they’re utterly damning for a bunch of reasons:

  • GOPers (with former US Attorney John Ratcliffe incompetently replacing Trey Gowdy as their designated “adult”) thought they could prove that Cohen hadn’t been offered a pardon, but proved the opposite; on top of looking like blithering idiots, it basically put them in the position of laying out proof of — then shrugging away — crime after Trump crime
  • As I anticipated at the time, Cohen makes clear that any Joint Defense Agreement involving him lasted only so long as Trump believed Cohen could hurt him
  • On top of providing details about the editing of his false statement, Cohen lays out how in conversations before the first draft, Jay Sekulow got him to shorten the timeframe of the Moscow Trump Tower deal
  • Cohen confirmed that — as I laid out in January — there was a gap in the documents shared with HPSCI necessary to sustain the false story

Perhaps most surprising, though, Cohen’s testimony establishes that Trump lied to Robert Mueller in his sworn answers.

Trump’s responses on Trump Tower questions were the least responsive of his many non-responsive answers

Far too little attention has been focused on Trump’s downright contemptuous responses to Mueller’s questions, many of which conflict with the testimony of numerous loyal Trump people. Worst of all were Trump’s response to seven questions on the Trump Tower deal.

a. In October 2015, a “Letter of Intent,” a copy of which is attached as Exhibit B, was signed for a proposed Trump Organization project in Moscow (the “Trump Moscow project”).

i. When were you first informed of discussions about the Trump Moscow project? By whom? What were you told about the project?

ii. Did you sign the letter of intent?

b. In a statement provided to Congress, attached as Exhibit C, Michael Cohen stated: “To the best of my knowledge, Mr. Trump was never in contact with anyone about this proposal other than me on three occasions, including signing a non-binding letter of intent in 2015.” Describe all discussions you had with Mr. Cohen, or anyone else associated with the Trump Organization, about the Trump Moscow project, including who you spoke with, when, and the substance of the discussion(s).

c. Did you learn of any communications between Michael Cohen or Felix Sater and any Russian government officials, including officials in the office of Dmitry Peskov, regarding the Trump Moscow project? If so, identify who provided this info1mation to you, when, and the substance of what you learned.

d. Did you have any discussions between June 2015 and June 2016 regarding a potential trip to Russia by you and/or Michael Cohen for reasons related to the Trump Moscow project? If yes, describe who you spoke with, when, and the substance of the discussion(s).

e. Did you at any time direct or suggest that discussions about the Trump Moscow project should cease, or were you informed at any time that the project had been abandoned? If yes, describe who you spoke with, when, the substance of the discussion(s), and why that decision was made.

f. Did you have any discussions regarding what information would be provided publicly or in response to investigative inquiries about potential or actual investments or business deals the Trump Organization had in Russia, including the Trump Moscow project? If yes, describe who you spoke with, when, and the substance of the discussion(s).

g. Aside from the Trump Moscow project, did you or the Trump Organization have any other prospective or actual business interests, investments, or arrangements with Russia or any Russian interest or Russian individual during the campaign? If yes, describe the business interests, investments, or arrangements.

In response, Trump wrote three paragraphs.

Response to Question III, Parts (a) through (g)

Sometime in 2015, Michael Cohen suggested to me the possibility of a Trump Organization project in Moscow. As I recall, Mr. Cohen described this as a proposed project of a general type we have done in the past in a variety of locations. I signed the non-binding Letter of Intent attached to your questions as Exhibit B which required no equity or expenditure on our end and was consistent with our ongoing efforts to expand into significant markets around the world.

I had few conversations with Mr. Cohen on this subject. As I recall, they were brief, and they were not memorable. I was not enthused about the proposal, and I do not recall any discussion of travel to Russia in connection with it. I do not remember discussing it with anyone else at the Trump Organization, although it is possible. I do not recall being aware at the time of any communications between Mr. Cohen or Felix Sater and any Russian government official regarding the Letter of Intent. In the course of preparing to respond to your questions, I have become aware that Mr. Cohen sent an email regarding the Letter of Intent to “Mr. Peskov” at a general, public email account, which should show there was no meaningful relationship with people in power in Russia. I understand those documents already have been provided to you.

I vaguely remember press inquiries and media reporting during the campaign about whether the Trump Organization had business dealings in Russia. I may have spoken with campaign staff or Trump Organization employees regarding responses to requests for information, but I have no current recollection of any particular conversation, with whom I may have spoken, when, or the substance of any conversation. As I recall, neither I nor the Trump Organization had any projects or proposed projects in Russia during the campaign other than the Letter of Intent.

The first paragraph is factually accurate. The last paragraph is correct (as far as we know) with respect to having no other proposed projects, but is utterly non-responsive to a question about the response to investigative questions (including these ones) regarding the project, in part because Trump only agreed to answer questions pertaining to the campaign period.

The middle paragraph, however, is inconsistent with the documentary record, but consistent with the false statement that Cohen is now sitting in prison for.

After Cohen pled guilty, Mueller offered Trump a chance to correct his testimony, but he refused

Because I get into why that is, consider that, in the wake of Cohen’s plea, Trump admitted to remembering that the deal may have gone through the end of the campaign (the LOI was only withdrawn after the election) and Rudy ran his mouth admitting that the project went through November. In response, Mueller asked follow-up questions.

In light of the President’s public statements following Cohen’s guilty plea that he “decided not to do the project,” this Office again sought information from the President about whether he participated in any discussions about the project being abandoned or no longer pursued, including when he “decided not to do the project,” who he spoke to about that decision, and what motivated the decision. 1057 The Office also again asked for the timing of the President’s discussions with Cohen about Trump Tower Moscow and asked him to specify “what period of the campaign” he was involved in discussions concerning the project. 1058 In response, the President’s personal counsel declined to provide additional information from the President and stated that “the President has fully answered the questions at issue.” 1059

1057 1/23/19 Letter, Special Counsel’s Office to President’s Personal Counsel.

1058 1/23/ 19 Letter, Special Counsel’s Office to President’s Personal Counsel.

1059 2/6/ l 9 Letter, President’s Personal Counsel to Special Counsel’s Office.

On this matter, then, Trump made comments to the public after submitting his responses to Mueller that made it clear his claims to not recall these matters were false. When Mueller gave him the opportunity to fix his testimony, he refused.

Part of Trump’s response exactly replicates the lies Cohen told, in a statement prepared with the input of Jay Sekulow, to Congress

With that in mind, consider the substance of that middle paragraph. It repeats the key lies that Cohen pled guilty to in December:

  • Trump and Cohen only have a few (three) conversations about the deal rather than ten or more
  • Trump did not know of any travel plans to Russia
  • Trump didn’t discuss the project with anyone else at Trump Org, including Ivanka and Don Jr
  • Cohen’s attempt to contact Dmitry Peskov in January 2016 was via a public email address and proved unsuccessful

Compare those lies with the three main lies Cohen pled guilty to.

  • The Moscow Project ended in January 201 6 and was not discussed extensively with others in the Company.
  • COHEN never agreed to travel to Russia in connection with the Moscow Project and “never considered” asking Individual 1 to travel for the project.
  • COHEN did not recall any Russian government response or contact about the Moscow Project.

Not knowing (or caring) that his former fixer was already cooperating with Mueller, Trump repeated precisely the same lies Cohen is now in prison for, did so under oath, and refused to fix those responses when given an opportunity to.

Cohen’s testimony, however, makes these lies even more damning.

The Trump Organization withheld the documents that would have made it clear Cohen was lying from the Committees

Again, as I noted back in January, there is no way that the lies Cohen told SSCI and HPSCI would have been sustainable if the committees had gotten all the documents they asked for. Specifically, three emails referenced in Cohen’s statement of the offense could not have been turned over to the committees without them figuring out he was lying.

On or about January 14, 2016 , COHEN emailed Russian Official 1’s office asking for assistance in connection with the Moscow Project.

On or about January 16, 2016, COHEN emailed Russian Official 1’s office again , said he was trying to reach another high- level Russian official, and asked for someone who spoke English to contact him.

On or about January 20, 2016, COHEN received an email from the personal assistant to Russian Official 1 (“Assistant 1”) , stating that she had been trying to reach COHEN and requesting that he call her using a Moscow-based phone number she provided.

Cohen’s story (and the one Trump submitted as his sworn testimony) is that he tried emailing Dmitry Peskov’s office just once, and that via a public email address. But as Mueller describes it — citing three emails from Cohen and one response from Peskov’s assistant Elena Poliakova — he wrote one email in which he fat-fingered the address for Peskov’s email, one to the general press line, and a second to Peskov’s email. In response, Poliakova wrote back, stating, “I can’t get through to both your phones. Pls, call me.”

On January 11, 2016, Cohen emailed the office of Dmitry Peskov, the Russian government’s press secretary, indicating that he desired contact with Sergei Ivanov, Putin’s chief of staff. Cohen erroneously used the email address “[email protected]” instead of “Pr [email protected] .ru,” so the email apparently did not go through.346 On January 14, 2016, Cohen emailed a different address ([email protected]) with the following message:

Dear Mr. Peskov, Over the past few months, I have been working with a company based in Russia regarding the development of a Trump Tower-Moscow project in Moscow City. Without getting into lengthy specifics, the communication between our two sides has stalled. As this project is too important, I am hereby requesting your assistance. I respectfully request someone, preferably you; contact me so that I might discuss the specifics as well as arranging meetings with the appropriate individuals. I thank you in advance for your assistance and look forward to hearing from you soon.347

Two days later, Cohen sent an email to [email protected], repeating his request to speak with Sergei Ivanov.348 Cohen testified to Congress, and initially told the Office, that he did not recall receiving a response to this email inquiry and that he decided to terminate any further work on the Trump Moscow project as of January 2016. Cohen later admitted that these statements were false. In fact, Cohen had received (and recalled receiving) a response to his inquiry, and he continued to work on and update candidate Trump on the project through as late as June 2016.349

On January 20, 2016, Cohen received an email from Elena Poliakova, Peskov’s personal assistant. Writing from her personal email account, Poliakova stated that she had been trying to reach Cohen and asked that he call her on the personal number that she provided.350 Shortly after receiving Poliakova’s email, Cohen called and spoke to her for 20 minutes.351

346 1/11/16 Email, Cohen to [email protected] (9: 12 a.m.).

347 1/14/16 Email, Cohen to [email protected] (9:21 a.m.).

348 1/16/16 Email, Cohen to [email protected] (10:28 a.m.).

349 Cohen Information ,i,i 4, 7. Cohen’s interactions with President Trump and the President’s lawyers when preparing his congressional testimony are discussed further in Volume II. See Vol. II, Section 11.K.3, infra.

350 1/20/1 6 Email, Poliakova to Cohen (5 :57 a.m.) (“Mr. Cohen[,] I can’t get through to both your phones. Pis, call me.”).

351 Telephone records show a 20-minute call on January 20, 2016 between Cohen and the number Poliakova provided in her email. Call Records of Michael Cohen After the call, Cohen saved Poliakova’s contact information in his Trump Organization Outlook contact list. 1/20/16 Cohen Microsoft Outlook Entry (6:22 a.m.).

The Poliakova email, by itself, would prove all the claims that Cohen got no response to be false.

As Cohen explained it, since he was no longer at Trump Organization anymore, he had to rely on Trump Org lawyers (probably Alan Garten) to comply with discovery requests. That probably means Garten is responsible for withholding the emails — particularly the Poliakova one — not just from Congress, but from Cohen.

Q Now, in your February 28th interview before this committee you mentioned that Alan Futerfas and Alan Garten, the two lawyers who were tied to The Trump Organization, were responsible for the document production that you produced to the committee in response to this committee’s May of 2017 subpoena. ls that accurate?

A That’s accurate.

[snip]

Q Do you have any information about why The Trump Organization would have withheld from this committee production of the January 141h, 2016, email from you to Peskov’s office?

A I do not.

Q Same question as to the January 161h, 2016, email from you to Peskov’s office regarding Sergei lvanov?

A I also do not.

Q Same question with regards to the January 20th,2016, email from Elena Poliyakova (ph)?

A I do not

THE CHAIRMAN: Mr. Cohen, what Mr. Mitchell is asking about is you’ve testified that the members of the joint defense agreement were aware that the written testimony that you were going to give to this committee was false. Documents that would have contradicted that timeline, namely, the three that Mr. Mitchell just referenced, were not produced to this committee. ls there any insight you can shed as to who might have been involved in withholding documentary evidence that would have contradicted your written false testimony?

MR. COHEN: Again, it would be other members of the joint defense team, but specifically at The Trump Organization level.

For reasons I’ll return to, Cohen was one of the only Trump people who got subpoenaed and therefore whose document compliance would be legally binding. But that means that Trump Org failed to comply with a subpoena issued not by Adam Schiff, but by Devin Nunes.

Cohen didn’t talk about these emails with Joint Defense Agreement lawyers, but he talked about the Poliakova one (and the follow-up call) with Trump

All that’s damning enough, especially since Trump claimed to Mueller that the documents turned over to his office would match his story (this is not the only sworn response where Trump falsely claimed the documentary record matches his testimony).

All the more so, though, because Trump is the one person that Cohen spoke to at Trump Org about receiving this Poliakova email (in addition to Felix Sater, who wrote the next day to say Putin’s office had contacted him, seemingly in response).

Indeed, immediately after his call with Poliakova, Cohen talked to Trump about how well versed she was on issues that mattered for their deal.

Q At what time did you speak to anyone at The Trump Organization about this email?

A About this specific email? I did not

Q Never?

A No. Well, actually, I apologize, that’s not true, I spoke to Mr. Trump about it.

Q When was that?

A That was after I had spoken to Ms. Poliyakova (ph).

[snip]

THE CHAIRMAN: And did I hear you to say that you spoke to Mr. Trump about your conversation with Mr. Peskov’s office?

MR. COHEN: Yes, with Ms. Poliyakova (ph).

THE CHAIRMAN: And was the conversation you had with Mr. Trump about that conversation with Ms. Poliyakova (ph) in person or by phone?

MR. COHEN: lt was in person.

THE CHAIRMAN: And how soon after your conversation with her on the phone did that take place?

MR. COHEN: Right afterwards.

THE CHAIRMAN: Can you tell us about the conversation you had with Ms Poliyakova (ph)?

MR. COHEN: I just found that she was very professional and her questions regarding the project were insightful. As an assistant, I was impressed, and I just made mention to him that I had spoken to an assistant for Peskov, and I was, again, incredibly impressed with her line of questioning regarding the project. And I made mention how nice it would be to have an assistant who asked such pertinent questions.

[snip]

THE CHAIRMAN: And by the detailed nature of her questions, you could tell that they knew a great deal about the project?

MR. COHEN: Yes.

THE CHAIRMAN: And what kind of questions did she have for you about the project?

MR. COHEN: The areas that obviously we would want to be building in. I don’t want to try to recollect the specific questions, but there were just very profess — they were very professional, talking about like the size of the project, the scope, length of time, where the construction crews were going to come from. I mean, it was a pretty insightful conversation.

Even if you buy that Trump forgot this conversation and the other seven he claims to have forgotten about a deal he very much wanted, you still need to explain why his responses, which allegedly account for the documentary evidence, nevertheless repeat the story that Cohen told based on a documentary record that Trump lawyers ensured was incomplete.

Given the great lengths Trump went to to not answer any of Mueller’s questions, it would take some doing for him to tell a demonstrable lie.

But he did just that with regards to the Trump Tower meeting — and refused to fix his testimony after he made it clear, publicly, that he had lied.

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. 

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Lisa Page Confirms that the Trump Campaign Investigation Was Different than Russian Info Ops Investigation

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In her interviews, Lisa Page confirms something I keep explaining, only to have people try to correct me. The Russian investigation into Trump’s campaign that got started in July 2016 did not, at first, include the GRU and Internet Research Agency activity that later got subsumed into the Mueller investigation. In her first interview, Page makes this clear in a response to John Ratcliffe insinuating, incorrectly, that reference to Obama’s interest in the FBI’s activities must be an attempt to tamper in the Clinton investigation.

Mr. Ratcliffe. Let me move on to a text message on September 2nd of 2016. It’s a series of texts that you exchanged with Agent Strzok. And at one point you text him: Yes, because POTUS wants to know everything we are doing.

[snip]

Ms. Page. It’s not about the Midyear investigation, if that’s the question. It has to do with Russia. It does not have to do with the Clinton investigation at all.

Mr. Ratcliffe. Okay. It does have to do with Russia, the Russia investigation?

Ms. Page. No, not the Russia investigation. It has to do with the broader look at Russian active measures.

She again makes that distinction regarding an August 5, 2016 text Strzok sent her.

Kim: Mr. Strzok wrote to you, quote: And hi. Went well. Best we could have expected other than, redacted, comma, quote, the White House is running this. Next text you stated–

Page: Yep.

Kim: –or, sorry, next text he stated, my answer, well maybe for you they are. And in response to these texts you wrote, yeah, whatever, re the White House comment. We’ve got emails that say otherwise. Do you remember what this meeting was about?

[snip]

Page: It is about — again, like the last time, it is about the broader intelligence community’s investigation of Russian active measures.

Kim: And not about the specific Russian collusion investigation?

Page: Definitely not.

In her second interview, Page was asked about whether Trump was included in the investigation during fall 2016, and Page describes the investigation at that point as “narrowly scoped.”

Kim: When we talk about the Russia collusion investigation in this timeframe, candidate Donald Trump is not the subject of that investigation, is that correct?

Page: That’s correct.

[snip]

So it was a very narrowly scoped, very discrete investigation because we understood the gravity of what it was we were looking at and we were not going to take a more extreme step than we felt we could justify.

Mark Meadows tries to suggest that the White House got briefed on the Trump investigation, and she corrects him.

Meadows; I think early on, August 5th, there’s the first original what we called at that time the Russia investigation briefing that happened. Peter Strzok comes back from [London], makes it just in time for you to have that. There’s a briefing that occurs on August 8th. And there’s a briefing with Denis McDonough at the White House where Jonathan Moffa and others attended.

[snip]

Page: But those were not about the Crossfire. To the best of my knowledge those were not —

Meadows: So they had nothing to do with any potential collusion between Russia and the Trump campaign? That was never mentioned?

Page: Not to my knowledge. It was always about the Russian active measures effort.

I keep harping on this point for several reasons. First, because when Republicans imagine — as they do here — that every negative comment Page and Peter Strzok made about a Russian investigation reflects bias against Donald Trump, they are unintentionally arguing that any criticism of Russian hacking by definition is a criticism of Trump. Meanwhile, they’re not considering why — sometime well after the Mueller investigation started — the Special Counsel had reason to subsume these other investigations.

But the problem with this misconception extends, too, to supporters of Mueller’s investigation. That’s because by conflating the larger counterintelligence investigation into Russian active measures with the more narrowly scoped (using Page’s description) investigation into Trump’s aides, the misinterpret the degree to which Mueller’s investigation stems from predicated investigations against individuals.

But don’t take my word for it. Take Lisa Page’s word for it.

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. 

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John Ratcliffe, US Attorney until July 2008, Says He Did Back Door Searches

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Screen Shot 2015-05-01 at 12.07.31 PMAs I noted, Republican Congressman John Ratcliffe made an interesting admission during yesterday’s debate over USA F-ReDux in the House Judiciary Committee.

He said he had benefitted from back door searches — the discussion was specifically about FISA Amendments Act — when he was a prosecutor. That’s particularly interesting given the timing of his tenure Chief of Anti-Terrorism and National Security and then US Attorney for the Eastern District of Texas, which is shown to the right (and includes the suburbs of both Dallas and Houston).

Ratcliffe was the District’s top counterterrorism guy from 2004 until 2007, and US Attorney from 2007 until July 2008.

FISA Amendments Act passed in July 2008.

If Ratcliffe did back door searches, he did them off collection other than FAA.

Now, as I have suggested, there are signs they rolled out back door searches at least as early as they rearranged Protect America Act (at first, without telling Reggie Walton, who was presiding over a challenge to the law) such that collection would come in through FBI. Even still, those January 2008 changes would be rather late in the timing of Ratcliffe’s role as a prosecutor.

John Bates made it clear such an approval — for FISA authorized production anyway — happened in 2008.

Of course, there’s the other possibility that Ratcliffe did, and knew he was doing, back door searches off of Stellar Wind production.

In any case, Ratcliffe’s admission does raise some interesting timing questions about back door searches.

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Nine Members of Congress Vote to Postpone the Fourth Amendment

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Broadcast live streaming video on Ustream

John Conyers, Jim Sensenbrenner, Darrell Issa, Steve Cohen, Jerry Nadler, Sheila Jackson Lee, Trey Gowdy,  John Ratcliffe, Bob Goodlatte all voted to postpone the Fourth Amendment today.

At issue was Ted Poe’s amendment to the USA Freedom Act (USA F-ReDux; see the debate starting around 1:15), which prohibited warrantless back door searches and requiring companies from inserting technical back doors.

One after another House Judiciary Committee member claimed to support the amendment and, it seems, agreed that back door searches violate the Fourth Amendment. Though the claims of support from John Ratcliffe, who confessed to using back door searches as a US Attorney, and Bob Goodlatte, who voted against the Massie-Lofgren amendment last year, are suspect. But all of them claimed they needed to vote against the amendment to ensure the USA Freedom Act itself passed.

That judgment may or may not be correct, but it’s a fairly remarkable claim. Not because — in the case of people like Jerry Nader and John Conyers — there’s any question about their support for the Fourth Amendment. But because the committee in charge of guarding the Constitution could not do so because the Intelligence Committee had the sway to override their influence. That was a point made, at length, by both Jim Jordan and Ted Poe, with the latter introducing the point that those in support of the amendment but voting against it had basically agreed to postpone the Fourth Amendment until Section 702 reauthorization in 2017.

(1:37) Jordan: A vote for this amendment is not a vote to kill the bill. It’s not a vote for a poison pill. It’s not a vote to blow up the deal. It’s a vote for the Fourth Amendment. Plain and simple. All the Gentleman says in his amendment is, if you’re going to get information from an American citizen, you need a warrant. Imagine that? Consistent with the Fourth Amendment. And if this committee, the Judiciary Committee, the committee most responsible for protecting the Bill of Rights and the Constitution and fundamental liberties, if we can’t support this amendment, I just don’t see I it. I get all the arguments that you’re making, and they’re all good and the process and everything else but only in Congress does that trump — I mean, that should never trump the Fourth Amendment.

(1:49) Poe; We are it. The Judiciary Committee is it. We are the ones that are protecting or are supposed to protect, and I think we do, that Constitution that we have. And we’re not talking about postponing an Appropriations amount of money. We’re not talking about postponing building a bridge. We’re talking about postponing the Fourth Amendment — and letting it apply to American citizens — for at least two years. This is our opportunity. If the politics says that the Intel Committee — this amendment may be so important to them that they don’t like it they’ll kill the deal then maybe we need to reevaluate our position in that we ought to push forward for this amendment. Because it’s a constitutional protection that we demand occur for American citizens and we want it now. Not postpone it down the road to live to fight another day. I’ve heard that phrase so long in this Congress, for the last 10 years, live to fight another day, let’s kick the can down the road. You know? I think we have to do what we are supposed to do as a Committee. And most of the members of the Committee support this idea, they agree with the Fourth Amendment, that it ought to apply to American citizens under these circumstances. The Federal government is intrusive and abusive, trying to tell companies that they want to get information and the back door comments that Ms. Lofgren has talked about. We can prevent that. I think we should support the amendment and then we should fight to keep this in the legislation and bring the legislation to the floor and let the Intel Committee vote against the Fourth Amendment if that’s what they really want to do. And as far as leadership goes I think we ought to just bring it to the floor. Politely make sure that the law, the Constitution, trumps politics. Or we can let politics trump the Constitution. That’s really the decision.

Nevertheless, only Louie Gohmert, Raul Labrador, Zoe Lofgren, Suzan DelBene, Hakeem Jeffries, David Cicilline, and one other Congressman–possibly Farenthold–supported the amendment.

The committee purportedly overseeing the Intelligence Community and ensuring it doesn’t violate the Constitution has instead dictated to the committee that guards the Constitution it won’t be permitted to do its job.

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