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The President’s Conspiracy Theories Get More Whacko than George Papadopoulos’

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Perhaps because the entire legal establishment is pushing back against Bill Barr’s wholesale politicization of DOJ, the President is disturbed on Twitter. After launching a 3-tweet tirade against juror Tameka Hart and Judge Amy Berman Jackson based off a Judge Andrew Napolitano appearance on Fox on Friends (that perhaps unsurprisingly neglects to remind his followers that Napolitano made a case in favor of Trump’s removal by the Senate). he then launched a 3-tweet tirade against the Stone prosecution more generally.

I’m interested in it because of the way Trump attempts to deploy all the other conspiracy theories he has against the Russian investigation to the Stone prosecution, to which they simply don’t apply.

Start with the way Trump claims that 1) the Mueller investigation was “illegally set up” based on the Steele dossier and 2) “forging documents to the FISA Court.”

This is a conceit that has worked well since Paul Manafort, fresh off a meeting with an Oleg Deripaska deputy, suggested Trump could use attacks on the dossier to attack the Mueller Report.

Except one glaring fault of the dossier is that Roger Stone, who had already made comments that suggested he had a direct role in the operation by the time FBI opened investigations on the four initial subjects of it, doesn’t appear in the Steele dossier.

Moreover, whatever else the DOJ IG Report on the Carter Page FISA applications showed, it also showed that the predication of the investigation had nothing to do with the Steele dossier; in fact, Steele’s reports didn’t make it to the investigative team until about six weeks after opening the investigation.

Further, the suggestion that Kevin Clinesmith’s alteration of an email in June 2017 to claim that Page was “not a source” for CIA had anything to do with Roger Stone’s investigation falls flat given that Mueller’s team obtained the first warrant targeting Roger Stone on August 4, 2017, and there’s no insinuation anywhere that Stone ever spoke with Carter Page. (Indeed, in spring 2016, Stone was bitching to Rick Gates that he was not in the loop of foreign policy discussions.) In fact, had Roger Stone been more closely associated with Trump’s freebie foreign policy team, than both Page and George Papadopoulos’ claims to know nothing of campaign efforts to optimize WikiLeaks’ releases would be anything but exculpatory, as DOJ IG treated them, since Stone was doing just that in the time period when they were asked by informants.

Plus, Robert Mueller testified under oath that his team didn’t have anything to do with the Carter Page FISA order. And the investigative record shows that the investigation into Page was largely done by the time Mueller took over.

There’s simply no tie between either the Steele dossier or the Page FISA warrants and Roger Stone’s prosecution.

Trump continues to claim that Mueller interviewed to be FBI Director, even after evidence showing that Steve Bannon, Reince Priebus, and Don McGahn debunked this in real time, not to mention Rod Rosenstein’s 302 that shows that Mueller specifically said he did not want to be interviewed before he met with Trump about Jim Comey’s replacement. That is, a bunch of witnesses — all Republicans — say Trump is wrong.

The most interesting accusation is that the prosecutors who won a conviction against Stone “were Mueller prosecutors.”

Two were: Aaron Zelinsky and Adam Jed.

But two weren’t. Jonathan Kravis (the sole prosecutor who quit DOJ entirely) and Michael Marando were career DC prosecutors brought in to prosecute the case after Mueller shut down. These were, pointedly, not Mueller prosecutors, and the case still went off without a hitch.

In fact, in his interview the other day, Bill Barr made quite clear that this prosecution happened on his watch, and he believes it’s a righteous prosecution.

BARR: Well, as you know, the Stone case was prosecuted while I was attorney general. And I supported it. I think it was established, he was convicted of obstructing Congress and witness tampering. And I thought that was a righteous prosecution. And I was happy that he was convicted.

If Trump has a problem with the guy who prosecuted the case against Roger Stone, he has a problem with his Attorney General Bill Barr.

Which may be why Trump — who shouldn’t be affected by mere lies by Roger Stone to Congress — is threatening to “sue everyone all over the place.” Of course, he is affected by Stone — Stone is going to prison to protect the President, to avoid describing the multiple conversations they had about optimizing the WikiLeaks releases. And suing (whom?!?!) won’t help Trump suppress that.

The President sounds crazier than George Papadopoulos in this rant, and his conspiracy theories are just as unhinged. Which is, I guess, what happens when all the conspiracy theories you’ve been using to undermine the prosecution implicating you turn out to be utterly irrelevant to the most important firewall to protect.

The Timeline Suggests Bill Barr Removed Jesse Liu to Intervene for Trump’s Rat-Fucker

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Far be it for me to doubt Bill Barr’s ability to manufacture a cover-up. He’s damn good at it, that’s why he was hired, and he’s got a lot of power to use to execute one.

But it’ll be harder this time around than it was for Poppy Bush, in part because Barr’s principal has the propensity to go off half-cocked, the frothy right doesn’t think rationally, and Barr himself may believe what he sees on Fox News more than what he sees in court dockets, to the extent he even reviews court dockets.

That’s particularly true given the timeline leading up to the Tuesday Night Massacre, because it appears to show that Bill Barr removed Jessie Liu — and then Trump withdrew her nomination excusing that removal — mostly (at least as far as what is visible thus far) to intervene for Trump’s rat-fucker, Roger Stone.

At least as the timing of the DOJ filings reflect, Barr intervened with the strategy he claimed to Pierre Thomas to apply with Roger Stone with Mike Flynn, providing reasons for Judge Emmet Sullivan to sentence lightly, but leaving it up him. Importantly, Jessie Liu proved willing to do that on January 29; she signed the softened Flynn sentencing memo (though it’s possible Trump submitted her nomination on January 6 in response to the discussions around the initial, harsher memo).

The next day, per dates included in the Roger Stone sentencing memo, DOJ submitted an objection to the January 16 Presentence Investigation Report.

Probation and the Government, however, incorrectly maintain that the following offense level increases are applicable:

Specific Offense Characteristics U.S.S.G. §2J1.2(b)(1)(B) 8 level increase ¶76 1

Specific Offense Characteristics U.S.S.G. §2J1.2(b)(1)(2) 3 level increase ¶77

Obstruction of Justice U.S.S.G. §3C1.1 2 level increase ¶80

Obstruction of Justice 2 U.S.S.G. §2J1.2(b)(3)(C) 2 level increase ¶77

1 Paragraph references are to the Presentence Investigation Report, dated January 16, 2020, (“PSR”). [Dkt. #272].

2 Government’s Objection to Presentence Investigation Report, dated January 30, 2020.

Possibly, given footnote 2, they added language to substantiate the extent to which Stone went to sustain his cover-up.

Pursuant to U.S.S.G. § 2B1.2(b)(3)(C), two levels are added because the offense was otherwise extensive in scope, planning, or preparation. Stone engaged in a multi-year scheme involving (1) false statements in sworn testimony; (2) the concealment of important documentary evidence; (3) further lies in a written submission to Congress; and (4) a relentless and elaborate campaign to silence Credico that involved cajoling, flattering, crafting forged documents, badgering, and threatening Credico’s reputation, friend, life, and dog. Stone’s efforts were as extensive, if not more extensive, than those of other defendants who received this two-level enhancement at sentencing.

That’s when Barr appointed Timothy Shea as interim US Attorney, effective just two business days later, the one way to take Jessie Liu out of the command structure immediately.

According to Barr’s interview, Shea started asking questions about Stone’s sentencing a week before the memo got submitted. That means Shea spent his first day focused on the Stone sentencing. That makes it hard to believe he was installed for any other reason but to help Stone out.

The first Trump-related motions — basically to remove Flynn’s attorney-client privilege so Covington’s lawyers can expound on how many lies Flynn told them about Russia and his work for Turkey — showed no discernible Barr influence (though Flynn’s reversal on continuing these discussions may have).

Barr provided several somewhat contradictory explanations for what happened on February 10 to Thomas. He claims that Shea “came by” DOJ and alerted Barr that line prosecutors still wanted to recommend the 7-9 year sentence calculated by the Probation Office. Then Barr suggested that he got involved here because line prosecutors who have decades of experience are too junior to make “life or death” decisions.

What other industry allows life or death decisions to be made by the most junior level of the business.

Not long later, however, Barr denied intervening in a case.

Most cases don’t come up to the Attorney General because people are doing a good job.

Some people saying AG intervening in a case. That’s preposterous! We have an escalation system that tries to get the difficult issues that are, you know, people are arguing about, to get them up for resolution and it’s the Attorney General’s decision to decide it.

But here’s the key: Barr claims he only got involved in Stone’s sentencing memo because “difficult issues” got escalated.

Except they only got escalated because he had just installed his hand-picked flunky to oversee this. This wouldn’t have been escalated if Liu were still in place.

All the evidence suggests that Bill Barr replaced Jessie Liu to give himself an excuse to intervene personally in Stone’s sentencing.

And what will it get him? I suspect Judge Amy Berman Jackson would never have sentenced Stone to 7 to 9 years —  the harsher sentence — in any case (especially given that she only gave Paul Manafort 7.5 years). She probably would have given Stone 4-5 years and might still, a slight enhancement for the threat against Randy Credico, but not much. But this drama about sentencing is likely not the big question, given that Stone is likely to have his sentence commuted, one way or another, on November 4, the day after election day. So the real question is how much of the next nine months he serves in prison, which ABJ has some control over, especially given Stone’s propensity to make threats when he’s not in prison or gagged. If ABJ sentences Stone to 4-5 years — close to what Barr has now signed off on in very public and intrusive fashion — but sends him to prison right away, it’s less likely Trump will do something immediate, like pardon him. Whereas, had Barr not intervened, it would have had the same effect but without Barr’s tacit approval for a 3-4 year sentence.

I can’t decide whether the plan here is to make judges look unreasonable — which could happen when Sullivan sentences Flynn to prison, except for the really atrocious details about how Flynn was secretly working for a frenemy government while purportedly advising Trump on national security issues. Or whether it’s to minimize sentence time — which Barr hasn’t done by endorsing a sentence just a year or so less than what ABJ might be inclined to give anyway.

Meanwhile, after inventing a way to remove Jessie Liu immediately, Lou Dobbs and a bunch of other frothers convinced the President to withdraw her nomination, possibly encouraged by the threat of questions about all this in her confirmation hearing, which was scheduled for yesterday. She resigned yesterday from whatever desk Trump parked her at to make way for Shea. She’s a pretty loyal Trumpster, so it’s unclear whether she’ll go quietly. But if she chooses, as a private citizen she’s now entitled to respond to subpoenas from Congress, and between her and Jonathan Kravis (who also resigned entirely from DOJ), she can explain what is really going on.

Meanwhile, Shea is now on the clock: he has until June 2 to complete shutting down any investigations into Trump. Unless the Senate confirms a successor that has not yet been confirmed, then Chief Judge Beryl Howell will be able to pick his replacement. And she was none too happy about this week’s drama.

December 10, 2019: Trump announces intent to nominate Jessie Liu to Treasury

January 4: DOJ asks for one more day to submit Flynn supplemental sentencing memorandum; signed by Liu

January 6: Trump nominates Liu to Treasury

January 7: DOJ submits harsh sentencing memo that nevertheless asks for guidelines sentence; signed by Liu

January 16: Probation Office completes Stone PSI recommending 7-9 years

January 22: DOJ notices court that they’ve provided the last of the Flynn 302s; signed by Liu

January 29: DOJ submits reply sentencing memo, with probation recommendation; signed by Liu

January 30: DOJ submits objection to Stone PSI; Barr appoints Timothy Shea DC US Attorney, effective February 3

February 3: Shea starts; per ABC interview, starts asking questions about the sentencing

February 5: Senate acquits Trump

February 9: DOJ files motion to continue briefing schedule and motion to confirm waiver of attorney-client privilege; signed by Jocelyn Ballentine; Brandon Van Grack not on motions, but probably in preparation for hearing

February 10: Shea “comes by” DOJ and tells Barr the team wanted to recommend 7-9 recommendation; Barr “under the impression” that “what was going to happen was what I had suggested;” DOJ files sentencing memo recommending 7-9 years; Barr claims he decided at night to amend recommendation

February 11:

3:07: Aaron Zelinsky withdrawal

3:56: Jonathan Kravis withdrawal

4:34: John Crabb Jr. files appearance

4:40: Supplemental sentencing memo created, signed by John Crabb Jr

5:27: Adam Jed withdrawal

5:39: Michael Marando withdrawal

6:10: Supplemental sentencing memo finalized

February 12: Trump withdraws Liu’s nomination; DOJ submits response to motion to dismiss; signed by Brandon Van Grack; Jessie Liu resigns from Treasury desk she was parked at to make way for Shea

February 13: Bill Barr does staged interview where he dodges any real explanation for his interference

June 2: Timothy Shea’s interim appointment expires

Roger Stone’s Latest: When Legal Categories of Innocent or Guilty become Disinformation and Pardon [Updated]

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Update, June 27: This post describes why Stone’s defense strategy — not to mount a legal defense, but to engage in disinformation — may pose a problem for Amy Berman Jackson’s enforcement  of her gag against Roger Stone. That’s because his magnification of other outlets’ coverage of his lawyers’ own bullshit filings questioning whether Russia hacked the DNC do amount to a magnification of his own defense strategy. ABJ ordered Stone to explain why his release conditions shouldn’t be changed. Stone’s response is here. As expected, his response largely claims he was within the terms of her order when commenting on his lawyers’ own filings.

The government’s disproportionate reaction is an effort to deprive Stone of the narrow latitude the Court left him; a latitude that was not violated by the posts, and a latitude which, if curtailed, based on the posts, would violate Stone’s First Amendment rights. The notion that “an appeal to major media outlets to publish information that is not relevant to, but may prejudice, this case” (Dkt. 136, p. 4, n.1), is oxymoronic, outré, and out of First Amendment bounds

Stone’s response is weakest in the explanation for calling for John Brennan to be hanged.

June 2, 2019 (Gov’t Ex. 8): “This psycho must be charged, tried, convicted . . . . [John Brennan] and hung for treason.” Dkt. 136-9. Stone: No comment was made by Stone about the “case” or about the “investigation.” Analysis: As background, Mr. Brennan, in a July 16, 2018 Tweet (about which 133,000 people were “talking”) wrote: “Donald Trump’s press conference performance in Helsinki rises to and exceeds the threshold of ‘high crimes and misdemeanors. It was nothing short of treasonous’.” The First Amendment protected Brennan’s remarks. Likewise, Stone’s remarks are also protected. This posting has nothing whatsoever to do with Stone’s case and therefore posed no fair trial threat, nor did it violate the Order.

This is clearly an attempt to explain away what Stone’s deletion of the post seems to recognize did violate the gag.

Anyway, I may be alone in thinking this, but I suspect ABJ won’t do anything more than restrict Stone’s use of the Internet, if even she does that.

I will add, however, that the government would do well to formally notice what I pointed out here: that in the DNC lawsuit, his attorneys are arguing the opposite of what they’re arguing here, that Russia definitely did the DNC hack.

Yesterday, the government asked Judge Amy Berman Jackson to hold a hearing to determine whether Roger Stone didn’t violate his gag order earlier this week by trying to get mainstream press outlets to pick up marginal outlets’ reports of his attorneys’ effort to undermine the attribution of the DNC hack to Russia. They point to several Instagram posts Stone made that referred to conspiratorial interpretations of his lawyers’ own frivolous arguments and ask why other outlets aren’t picking up the story. [I’ve added links to the posts.]

On June 18, 2019, Stone posted a screenshot of an article about one of his recent filings in this case. The screenshot read: “US Govt’s Entire Russia-DNC Hacking Narrative Based on Redacted Draft of CrowdStrike Report.” Ex. 1. He tagged the post, “But where is the @NYTimes? @washingtonpost? @WSJ? @CNN?” Id. Later that day, Stone posted a screenshot of another piece about his filing with the title, “FBI Never Saw CrowdStrike Unredacted Final Report on Alleged Russian Hacking Because None was Produced.” Ex. 2. Next, Stone posted an article titled, “Stone defense team exposes the ‘intelligence community’s’ [sic] betrayal of their responsibilities.” Ex. 3. The text further stated, “As the Russia Hoax is being unwound, we are learning some deeply disturbing lessons about the level of corruption at the top levels of the agencies charged with protecting us from external threats. One Jaw-dropping example has just been exposed by the legal team defending Roger Stone.” Id. Stone tagged the article, “Funny , No @nytimes or @washingtonpost coverage of this development.”

On June 19, 2019, Stone posted a screenshot of an article with the title, “FBI Never Saw CrowdStrike Unredacted or Final Report on Alleged Russian Hacking Because None Was Produced.” Ex. 4. He tagged the post, “The truth is slowly emerging. #NoCollusion.” Id.2

They argue this violates ABJ’s ban on,

making statements to the media or in public settings about the Special Counsel’s investigation or this case or any of the participants in the investigation or the case. The prohibition includes, but is not limited to, statements made about the case through the following means: radio broadcasts; interviews on television, on the radio, with print reporters, or on internet based media; press releases or press conferences; blogs or letters to the editor; and posts on Facebook, Twitter, Instagram, or any other form of social media.

Thus far, ABJ has not responded to this request, though in that same time she assented to another of the government’s requests, to submit a sur-reply to Stone’s claim that the FBI never had any direct evidence Russia hacked the DNC.

I want Roger Stone to go to jail as much as the next opponent of rat-fucking. But I think the government’s claim, on this point, is problematic. Back when ABJ set Stone’s gag, she said,

You may send out as many emails, Tweets, posts as you choose that say, Please donate to the Roger Stone defense fund to help me defend myself against these charges. And you may add that you deny or are innocent of the charges, but that’s the extent of it. You apparently need clear boundaries, so there they are.

But in the same hearing, prosecutor Jonathan Kravis — the guy who signed yesterday’s filing — laid out that defensible public statements would include articulating a defense.

And because the conduct we’re talking about now, because the message we’re talking about now are not just messages about proclaiming innocence or articulating a defense, but are messages that could be construed as threatening, the government believes that the restriction on extrajudicial statements would be appropriate under the Bail Reform Act.

And the posts from this week that prosecutors lay out do nothing more than point to poor analysis of Stone’s own lawyers’ filings, and as such probably count as an effort to articulate a defense.

The problem is precisely what prosecutors explicitly explain is their real concern, that these posts are designed to generate more attention for conspiracy theories that totally undermine the public record of the Mueller investigation.

Stone’s posts appear calculated to generate media coverage of information that is not relevant to this case but that could prejudice potential jurors. They relate to Stone’s claims—made in both filings before the Court and in public settings—that Russia did not hack the DNC servers, that the FBI and intelligence community were negligent in investigating Russian interference in the 2016 presidential election, that the government improperly “targeted” Stone and others, and that the entire investigation was somehow invalid and any crimes flowing from it (including Stone’s witness tampering and lies to Congress) were justified.3 If those theories were relevant to this case (which they are not), public statements aimed at the media and meant to bolster the claims would risk prejudicing the jury pool. But these posts are arguably even worse, because they risk tainting the jury pool with information that is not relevant but that may appear, to some, to be relevant. At best, Stone’s efforts could create the misimpression that this case is about issues that are not charged in the Indictment, and risk the trial “devolv[ing] into a circus” (Tr. 49:19-20). But worse, it could confuse prospective jurors or color how they later view the actually-relevant evidence and understand the Court’s instructions about that evidence.

Prosecutors are absolutely right: the reporting on Stone’s lawyers filings misrepresent what his case is about. But that’s because Stone’s own lawyers are engaging in a legal strategy of disinformation, not legal defense.

I’ve repeatedly said that I think Stone will be pardoned before his November trial. Currently, there are no charges against him which could be refiled in NY or FL (the latter of which wouldn’t do it anyway). DOJ has already ruled that Stone’s known underlying activity — optimizing the release of documents stolen by Russians — does not reach the level of illegal conspiracy. So if Trump pardoned Stone before November, the fact that Stone would lose his Fifth Amendment rights over his charges would pose no legal risk to Trump (unlike, say, Manafort). Yet November’s trial, if it goes forward, will be unbelievably damning for the President.

And that means that Stone’s lawyers have an even bigger incentive than Manafort’s lawyers did to mount a defense that undermines the credibility of the Russian investigation, even if it does nothing to increase Stone’s chances for acquittal (which, if this goes to trial, are slim).

Which leaves ABJ and the prosecutors attempting to litigate a trial that will find innocence or guilt, while Stone’s lawyers are litigating to push disinformation in support of a pardon.

All that said, Stone may still be in trouble. Prosecutors note that this is not the first time Stone has violated the letter (if not spirit) of ABJ’s gag. They include several more examples.

1 These posts are not the first statements that appear to have run afoul of the Court’s order. See, e.g., Ex. 5 (Instagram Posting of April 4, 2019, stating “FBI Refuses Records Request for Emails to CNN on Day of Roger Stone Raid,” with the tag, “How curious? What could they possibly be hiding?”); Ex. 6 (Instagram Posting of May 8, 2019, with the headline “Judge demands unredacted Mueller report in Roger Stone case,” with the comment, “The Judge has ruled but @Politico gets most of the story wrong because they are biased elitist snot-nosed fake news [expletive] who’s [sic] specialty is distortion by omitting key facts to create a false narrative.”); Ex. 7 (Instagram Posting of May 16, 2019, with headline, “Roger Stone Swings For the Fences; Court Filing Challenges Russiagate’s Original Premise,” with the comment, “My attorneys challenged the entire “Russia hacked the DNC/CrowdStrike” claim by the Special Counsel in public court filings[.]”); Ex. 8 (Instagram Posting of June 2, 2019, picturing a former CIA Director and writing, “This psycho must be charged, tried, convicted . . . . and hung for treason.”) (ellipses in original) (subsequently deleted). The government is bringing this matter to the Court’s attention now because Stone’s most recent posts represent a direct attempt to appeal to major media outlets to publish information that is not relevant to, but may prejudice, this case.

Three of these, like the other four, might be viewed as articulating a defense, with the defense being, engaging in disinformation.

The fourth, however, solidly violates the spirit and letter of ABJ’s gag, because it would be likely to incite violence directed at John Brennan, because it calls for his hanging (Click through to see the post; I don’t want to magnify Stone’s violent language).

I’m not sure what the remedy is for lawyers whose defense strategy is to sow disinformation inside and outside the court room (in both filings this week, the government has said they’re going to move to prevent any such discussion from the trial). But I think these Instagram posts were probably designed, with advice of counsel, to be defensible as part of a defense strategy.

It’s Stone’s defense strategy that’s the problem.

Update: ABJ has given Stone until Thursday to convince her he didn’t violate her gag.

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.