Posts

Among Other Things, Sam Patten Plea Signals that Mueller Referrals Will Include False Congressional Testimony

/92 Comments/in , /by

As I noted in an update to this post, another sleazy influence peddler, Sam Patten, just pled guilty to a FARA violation. As his criminal information lays out, he pled to serving as an agent of Konstantin Kilimnik and Serhiy Lyovochkin without registering under FARA. His plea agreement (which notes he first made a proffer to Mueller’s team on May 22, meaning this is another investigation that has been going on months that is being finalized in the last days of August) included a cooperation agreement.

More interesting details, however, are the descriptions of the other crimes he is being excused from, which appear in the statement of the offense.

First, there’s a description of how he served as a straw purchaser for Lyovochkin for inauguration tickets.

To circumvent the foreign donation restriction, PATTEN, with the knowledge of Foreigner A, solicited a United States citizen to act as a “straw” purchaser so that he could conceal from the [Presidential Inauguration Committee] that the tickets for the inauguration were being paid for from a foreign source. The straw purchaser paid $50,000 for four inauguration tickets. The straw purchaser paid that sum one day after receiving from [Begemot Ventures] a check signed by PATTEN in the sum of $50,000. In turn, [Lyovochkin] had paid [Begemot] for the tickets though a Cypriot account. [Kilimnik and Lyovochkin] another Ukrainian, and PATTEN were allocated the four inauguration tickets. Thereafter, PATTEN attended a PIC even in Washington, D.C. with Foreigner B.

I suspect we’ll see a lot more straw purchasers funneling money from foreigners who backed his campaign into Donald Trump’s pocket before this investigation is done.

Less sexy, but procedurally more important, is the revelation that Patten also lied to SSCI.

In or about January 2018, the United States Senate Select Committee on Intelligence (SSCI) sought PATTEN’s voluntary testimony on various topics. In advance of that testimony, the SSCI sought various pertinent documents from PATTEN.

In or about January 2018, PATTEN testified before the SSCI. Both before and during his testimony, PATTEN misled the SSCI in that he intentionally did not provide SSCI certain documents that could lead to revelation of him causing and concealing the foreign purchase of the PIC tickets, described about, and gave false and misleading testimony to avoid disclosing that he had caused and concealed foreign money to be paid to the PIC. In addition, PATTEN provided misleading testimony about his representation of foreign principals in the United States, so as to conceal his violation of the Foreign Agents Registration Act. Finally, after the interview, PATTEN deleted documents pertinent to his relationships with the above-described foreign principals.

As noted, this is one of the additional crimes that Patten will avoid being charged for by pleading to the FARA charge. Reportedly, SSCI made its own criminal referral, based off different comments.

All of this might concern people like Don Jr, who pretty clearly lied to multiple committees. Because it shows Mueller will use such crimes for leverage.

But Mueller probably has bigger things planned for Don Jr.

Update: This is speculation. But SSCI has released a statement making it clear that they referred Patten, but for statements other than what made it into his plea.

We can confirm that Mr. Patten produced documents to the Committee and was interviewed by Committee staff. Due to concerns about certain statements made by Mr. Patten, the Committee made a criminal referral to the Department of Justice. While the charge, and resultant plea, do not appear to directly involve our referral, we appreciate their review of this matter. We will have no further comments on this case at this time.

One thing SSCI has investigated closely is Cambridge Analytica. One thing this plea is utterly silent about is Patten’s work for CA in 2014.

Which would make the topic an even more interesting thing for Patten to cooperate on (without protection against prosecution) than just straw donors.

Update: On Twitter, Christopher Wylie said,

BREAKING: Ex-Cambridge Analytica contractor Sam Patten just charged by FBI after Mueller referral. This guy was responsible for CA operations in the US that involved covertly testing US voter attitudes on Putin’s leadership… I know there’s more to come…

In his testimony to SJC, he said,

Other CA contractors have worked on pro-Russian political operations in Eastern Europe, including work in Ukraine with suspected Russian intelligence agents. This may have influenced some of CA’s research in the USA. During its research projects in 2014, CA also set up focus groups, message testing and polling on Americans’ views on the leadership of Vladimir Putin and Russian expansionism in Eastern Europe. Of note, Vladimir Putin was the only foreign leader tested by CA.

He also told SJC he was cooperating with FBI, so he presumably made this same claim to FBI under threat of false statements charges.

Spy Versus Spy: The Two Alleged Agents of Foreign Powers Sitting in the Alexandria Jail, Part One (Paulie)

/37 Comments/in , , /by

The Alexandria jail houses two alleged criminal agents of foreign influence: Paul Manafort and Mariia Butina. In the coming days, both may present interesting questions about the boundaries the US uses to define — and criminalize — foreign influence peddling. Legal questions in their prosecutions will address two questions:

  • What does it take to criminalize a failure to register as an Agent of a Foreign Principal?
  • What are the boundaries between Agent of Foreign Principals and Foreign Governments?

At issue are two laws: the Foreign Agents Registration Act, 22 USC 611 et seq., which requires certain people engaging in politics and propaganda for non-commercial foreign entities to register as their agents and to disclose the propaganda they disseminate. Mostly, FARA is a documentary requirement, but lying in the registration process can carry a five year sentence. That’s what Paul Manafort has been charged with. Butina has been charged with violating 18 USC 951, which basically criminalizes people who don’t register with DOJ (as, for example, diplomats would) when they spy for a foreign power; it carries a ten year sentence.

The problems with FARA … and distinguishing it from spying

As a DOJ Inspector General Audit completed in September 2016 laid out, people stopped complying with FARA in the 1990s, as any commercial lobbyists could register under the Lobbyist Disclosure Act more easily and FARA wasn’t rigorously enforced. The IG Report cited a bunch of reasons why FARA is not better enforced, such as that they aren’t staffed to be effective, nor do they have the investigative authorities DOJ thinks they need to figure out who’s not complying.

During our audit the FARA Unit was comprised of one Unit Chief, who is also an attorney; two staff attorneys; one Supervisory Program Manager; one Intelligence Research Specialist; one Program Specialist; and two Case Management Specialists.5 NSD staff emphasized that this is a limited staff, which is responsible for a considerable range of activities. The unit is responsible for processing and monitoring new and existing FARA registrations on an ongoing basis. This includes receiving, reviewing and processing documentation and payments, and addressing late or inaccurate submissions. The unit also performs periodic formal inspections to assess the adequacy of registrant reporting and disclosure, and conducts open source searches to identify individuals that may be obligated to register.

One of these two staff attorneys joined the FARA Unit during our audit. At the conclusion of our audit we were informed that the FARA Unit was back to one staff attorney, however the unit planned to hire a replacement.

[snip]

NSD officials stated that a major difficulty is a lack of authority to compel the production of information from persons who may be agents. As a result, NSD is currently pursuing civil investigative demand (CID) authority from Congress in order to enhance its ability to assess the need for potential agents to register.

Ultimately, however, DOJ almost never uses the teeth in the provision — prosecution — to ensure compliance.

Between 1966 and 2015 the Department only brought seven criminal FARA cases – one resulted in a conviction at trial for conspiracy to violate FARA and other statutes, two pleaded guilty to violating FARA, two others pleaded guilty to non-FARA charges, and the remaining two cases were dismissed. We were also told by NSD that the Department has not sought civil injunctive relief under FARA since 1991.

The IG Report cites two reasons why there aren’t more prosecutions. First, as the National Security Division explained, because it is so hard to get evidence of 1) willfulness, 2) that the agent is working under the “direction and control” of a foreign principal and 3) that the influence-peddling isn’t for some other (exempted) reason.

FARA contains a criminal penalty provision, and NSD approves criminal prosecution as an enforcement mechanism if there is sufficient admissible evidence of a willful violation of FARA, and the standards applicable to all federal criminal prosecutions set forth in the U.S. Attorney’s Manual are otherwise satisfied. The high burden of proving willfulness, difficulties in proving “direction and control” by a foreign principal, and exemptions available under the statute make criminal prosecution for FARA violations challenging. These challenges are compounded by the government’s current inability to compel the production of records from potential and current registrants, a situation NSD is working to remedy by proposing legislation for consideration by the Department of Justice (Department). Despite these challenges, the Department has brought four F ARA criminal cases since 2007, all of which resulted in convictions (one conviction at trial for conspiracy to violate F ARA and other statutes; two guilty pleas for violating FARA; and one guilty plea to related non-FARA charges).

The other reason why there aren’t more FARA prosecutions, per the IG Report, is because FBI agents confuse FARA (what Manafort is charged with) with 18 USC 951 (what Butin is charged with). Indeed, Agents mix the codes for the two crimes up in their filing system.

[W]hen we discussed FARA with FBI personnel, we found that they considered a “FARA case” to be a case investigated pursuant to either the FARA, 22 U.S.C. § 611, et seq., or 18 U.S.C. § 951 (Section 951), which is the federal statute that provides criminal penalties for certain agents of foreign governments who act in the United States without first notifying the Attorney General.12 Unlike Section 951, FARA requires agents of foreign principals engaged in legal political or quasi-political activities such as lobbying, government and public relations, tourism promotion, and foreign economic development activities in the United States to register and make detailed disclosures of their activities in the United States conducted on behalf of their foreign principals.13

By contrast, Section 951 was described to us by the NSD as “espionage lite” because a Section 951 case generally involves espionage-like or clandestine behavior or an otherwise provable connection to an intelligence service, or information gathering or procurement-type activity on behalf of a foreign government. Although FARA registration can serve as the required notification to the Attorney General under Section 951, NSD officials told us FARA and Section 951 involve different sets of elements and different types of issues. According to NSD officials, only 22 U.S.C. 611 et seq. constitutes a FARA case. Nevertheless, NSD officials acknowledged the differing views on what constitutes a FARA charge and are currently engaged in an ongoing effort to better educate field investigators and prosecutors on the difference.

12 According to NSD, notification under Section 951 may be made by registration under FARA in circumstances where the activity requiring notice is disclosed on the FARA registration form.

13 Political activities are defined by the statute as “any activity that the person engaging in believes will, or that the person intends to, in any way influence any agency or official of the Government of the United States or any section of the public within the United States with reference to formulating, adopting, or changing the domestic or foreign policies of the United States or with reference to the political or public interests, policies, or relations of a government of a foreign country or a foreign political party.”

Here’s how NSD described the difference.

Although OIG’s report reflects some criticism of aspects of NSD’s review of F ARA cases, NSD notes at the outset, as OlG acknowledged in the Report, that personnel interviewed in preparation of the Report frequently confused FARA (22 U.S.c. § 611 el seq) with 18 U.S.C. § 951 (“Section 951 “), a criminal statute entitled “Agents of foreign governments.” Although the two statutes have similar terms, they address different types of conduct. The typical conduct to which Section 951 applies consists of espionage-like behavior, information gathering, and procurement of technology, on behalf of foreign governments or officials. FARA, on the other hand, is designed to provide transparency regarding efforts by foreign principals (a term defined more broadly than foreign governments or officials) to influence the U.S. government or public through public speech, political activities, and lobbying. Accordingly, Section 95 1 is codified in Title 18 of the U.S. Code (designated for “Crimes and Criminal Procedure”), while FARA is codified in Title 22 (designated for “Foreign Relations”). Section 951 is aimed exclusively at criminally punishing individuals who violate its terms, and lacks a formal administrative registration regime. FARA in contrast, is predominantly a disclosure statute, under which there is an administrative registration regime, and while the Act authorizes criminal penalties for willful violations, the primary means of achieving FARA’s main purpose of transparency is through voluntary disclosure in compliance with the Act. The mistaken conflation of the two statutes can lead to undue weight being given to criminal prosecution as the measure of F ARA enforcement and insufficient recognition of the significance of administrative enforcement efforts relating to the FARA registration regime. It is therefore essential to understand the distinctions between FARA and Section 951 for purposes of this audit, the scope of which is expressly limited to the enforcement and administration of FARA.

Mueller’s two FARA pleas

Mueller actually already shifted the balance on FARA enforcement since that 2016 IG Report. Among the false statements Flynn pled guilty to is filing a false FARA filing.

On March 7, 2017, FLYNN filed multiple documents with the Department of Justice pursuant to the Foreign Agents Registration Act (“FARA”) pertaining to a project performed by him and his company, the Flynn Intel Group, Inc. (“FIG”), for the principal benefit of the Republic of Turkey (“Turkey project”). In the FARA filings, FLYNN made materially false statements and omissions, including by falsely stating that (a) FIG did not know whether or the extent to which the Republic of Turkey was involved in the Turkey project, (b) the Turkey project was focused on improving U.S. business organizations’ confidence regarding doing business in Turkey, and (c) an op-ed by FLYNN published in The Hill on November 8, 2016, was written at his own initiative; and by omitting that officials from the Republic of Turkey provided supervision and direction over the Turkey project.

And one of two conspiracy schemes (what I call ConFraudUS) to which Gates pled guilty is violating FARA.

GATES understood that it was illegal to engage in certain activities in the United States as an agent of a foreign pricipal without registering with the United States Government. Specifically, a person who engages in lobbying or public relations work in the United States (hereafter collectively referred to as lobbying) for a foreign principal such as the Government of Ukraine or the Party of Regions is required to register. Manafort, together with GATES’ assistance, engaged in a scheme to avoid this registration requirement for DMI, Manafort, and others.

These efforts — and Manafort’s prosecution — have already led to a significant increase in how many people are registering as foreign influence peddlers.

You can lose your profits if you don’t register

Particularly because Manafort’s case is so high profile, Mueller’s bid to prosecute him for FARA violations comes with high stakes and potentially high payoff — though DC District interpretations of the law. That said, the government has actually backstopped itself by charging Manafort’s sleazy influence peddling under multiple different crimes; the indictment actually uses seven different counts to hold Manafort accountable for hiding that he was an agent of a Russian-backed Ukrainian party, the Party of Regions (and its successor).

  1. ConFraudUs: Claiming Manafort prevented DOJ and Treasury from tracking his foreign influence peddling
  2. Conspiracy to Launder Money: Claiming Manafort and Gates laundered the proceeds of their Ukrainian influence-peddling
  3. FARA Violation: Claiming Manafort hid both his own lobbying for the Party of Regions and that he paid other influence peddlers to engage in
  4. Submitting a False FARA Statement: Claiming Manafort submitted a claim falsely claiming he didn’t need to register as a foreign agent
  5. False statements: Claiming he lied in his FARA filings
  6. Obstruction of justice: Claiming he tampered with witnesses associated with the Hapsburg group in an attempt to get them to lie about his failure to register as a foreign agent
  7. Conspiracy to obstruct justice: Claiming he conspired with former GRU officer Konstantin Kilimnik to tamper with witnesses

Manafort already tried and failed to narrow the application of FARA in two ways: first, by objecting to tying money laundering to FARA (and thereby tying a forfeiture to it). Second, Manafort tried to get either the false FARA statement (count 4) or the false statements (count 5) thrown as as multiplicitous. Amy Berman Jackson ruled against him on both attempts (forfeiture, multiplicitous), though the latter order basically just punted the issue until after trial.

The former is more interesting, in any case, because in her ruling ABJ took Manafort’s bid to distinguish FARA from 18 USC 951 and instead described how similar they are.

Section 951 of Title 18 states that “[w]hoever, other than a diplomatic or consular officer or attaché, acts in the United States as an agent of a foreign government without prior notification to the Attorney General” shall be fined or imprisoned for up to ten years, or both. 18 U.S.C. § 951(a). According to defendant, this statute criminalizes acting as a foreign agent, whereas FARA is merely a “regulatory scheme for foreign agent registration” that criminalizes only the willful failure to register. Def.’s Mot. at 5, quoting United States v. McGoff, 831 F.2d 1071, 1075 (D.C. Cir. 1987).

But the reference to section 951 does not support defendant’s position, since defendant acknowledges that section 951 plainly governs acting as an agent of a foreign government, and the language of the two provisions is quite similar. See Def.’s Mot. at 4–5; compare 18 U.S.C. § 951(a) (“Whoever . . . acts in the United States as an agent of a foreign government without prior notification to the Attorney General . . . shall be fined under this title or imprisoned . . . .”) with 22 U.S.C. § 612(a) (“No person shall act as an agent of a foreign principal unless he has filed with the Attorney General a true and complete registration statement . . . .”) and id. § 618(a) (imposing criminal penalties on any person who “willfully violates any provision of this subchapter or any regulation thereunder” or “willfully makes a false statement of a material fact or willfully omits any material fact” in a FARA statement). These laws are not just about paperwork; their object is to ensure that no person acts to advance the interests of a foreign government or principal within the United States unless the public has been properly notified of his or her allegiance. So both statutes expressly prohibit “acting” as a representative of a foreign entity without submitting the required notification to the Attorney General. For these reasons, the alleged international banking transactions could “promote,” and Manafort could realize “proceeds” from, a FARA violation.3

3 Defendant argues that section 951 does not bear on the issue presented here since it requires an “additional element” that FARA does not, and applies to “activities . . . under the control of a foreign government.” Def.’s Mot. at 4–5. But FARA also applies to agents of foreign governments. 22 U.S.C. § 611(b) (defining “foreign principal” to include “the government of a foreign country”). So the difference between the two provisions is that section 951 covers a narrower subset of foreign agents.

In addition to treating sleazy influence peddlers as akin to spies (albeit less serious ones) if they hide that influence peddling, ABJ’s order means that in DC, where all the sleazy influence peddlers work, a sleazy influence peddler can forfeit the money he makes off sleazy influence peddling if he doesn’t properly register to peddle influence.

Ouch.

The crime-fraud exception in FARA registration

Which brings us to one of the reasons why FARA is so hard to prosecute: the difficulty of proving willfulness. One way Mueller is getting around that is to rely on the testimony of the lawyer Manafort used to file his delayed FARA registration.

After Manafort’s influence-peddling for Ukraine became the focus of attention in 2016, the chief of the FARA unit wrote to Manafort and asked him if maybe he should have registered. Manafort hired Melissa Laurenza. She submitted three filings on Manafort’s behalf, on November 23, 2016, February 10, 2017, and June 27, 2017, all based on the representations made by Gates and Manafort (including that they had no record of communications with Tony Podesta and Vin Webber’s firms, but that they only retained email for 30 days). In the earlier filings, Laurenza claimed Manafort’s Ukrainian consulting didn’t include any outreach to US government officials or media outlets.

Last August, Mueller asked for and obtained Chief Judge Beryl Howell’s permission to compel Laurenza to testify under the crime-fraud exception to attorney-client privilege. Based off five lies for which Mueller provided evidence, Howell authorized Mueller’s team to ask seven questions of Laurenza about preparation of the FARA filings.

Then, earlier this month, a Taint Team lawyer asked for permission to have the taint Team turn over the emails that Laurenza used to write up her FARA filings. Manafort responded by claiming, in part, that he had never even seen the entirety of the litigation before Judge Howell. The Taint Team lawyer then produced the evidence that she had provided that information to Manafort in April.

If this thing goes to trial, we’re going to see a whole slew of evidence that Manafort was working directly for Viktor Yanukovych’s party, even while he hid that fact as he had Tony Podesta and Vin Weber lobby on Yanukovych’s behalf. That will get Mueller to the “direction and control” prong of the statute. By showing the efforts to which Gates and Manafort made to lie to their lawyer when they were finally forced to submit a FARA filing, Mueller will show that Gates and Manafort twice made sure that the FARA filing lied about what they had really been doing for Yanukovych.

One question I’m left with, particularly when we compare Manafort’s actions with Butina’s (which I’ll do in my next post), is why Mueller didn’t just charge Manafort with spying for Yanukovych, rather than just lobbying for him?

Update: Sam Patten, who also worked with Konstantin Kilimnik pitching Yanukovych’s party, is pleading guilty to FARA violations this morning.

As I disclosed 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. 

The Dossier as Disinformation: Why It Would Matter

/120 Comments/in , /by

As I disclosed last month, 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. 

When I wrote this post suggesting that Oleg Deripaska may have been in a position to make sure Christopher Steele’s Trump oppo research was filled with disinformation, a lot of people not only doubted that the dossier includes disinformation, but scoffed that even if it did it would matter. (See this post for more expert people talking about the possibility the dossier was seeded with disinformation.)

In his testimony to the House Intelligence Committee, Fusion GPS’ founder Glenn Simpson said that the Democrats used the Steele dossier in an effort, “to help [] manage a, you know, exceptional situation and understand what the heck was going on.” The same, we know from an endless series of Devin Nunes-led stunts to conflate the dossier with the FBI investigation, was true of the FBI.

The Democrats and the FBI used the dossier to figure out what was going on.

So to the extent information in the dossier was deliberately inaccurate — particularly in cases where it conflicted with publicly known or (given geographic location and known Steele network) knowable, more accurate information — it would lead the Democrats and the FBI to make incorrect decisions about how to prepare against or investigate the Russian attack.

And while I can’t tell whether the following examples arose from disinformation or some lack of due diligence or plain old hazards of human intelligence, all are examples where using the dossier to make decisions would have led the Democrats or the FBI to waste resources or act with less urgency than they should have.

How accomplished were the Russians at hacking

Steele claim, July 26, 2016:

In terms of the success of Russian offensive cyber operations to date, a senior government figure reported that there had been only limited success in penetrating the “first tier” foreign targets. The comprised western (especially G7 and NATO) governments, security and intelligence services and central banks, and the IFIs. To compensate for this shortfall, massive effort had been invested, with much greater success, in attacking the “secondary targets”, particularly western private banks and the governments of smaller states allied to the West. S/he mentioned Latvia in this regard.

Kaspersky Labs claim, April 21, 2015 (including links to older reporting attributing the attacks to Russia):

CozyDuke (aka CozyBear, CozyCar or “Office Monkeys”) is a precise attacker. Kaspersky Lab has observed signs of attacks against government organizations and commercial entities in the US, Germany, South Korea and Uzbekistan. In 2014, targets included the White House and the US Department of State, as believed.

The operation presents several interesting aspects

  • extremely sensitive high profile victims and targets
  • evolving crypto and anti-detection capabilities

[snip]

Recent CozyDuke APT activity attracted significant attention in the news:

Sources: State Dept. hack the ‘worst ever’, CNN News, March 2015
White House computer network ‘hacked’, BBC News, October 2014
Three Months Later, State Department Hasn’t Rooted Out Hackers, Wall Street Journal, February 2015
State Department shuts down its e-mail system amid concerns about hacking, Washington Post, November 2014

Note: FBI probably intended the DNC to consult to this report, describing “7 years of Russian cyberespionage,” when they first warned the DNC they were being hacked in September 2015, which would have also alerted the Democrats to the sophistication of Russian hacking.

Actions Democrats might have taken

The incorrect information, neglecting to mention known attacks on Germany’s parliament and US national security agencies, might have led Democrats to dismiss the persistence of the hackers targeting them.

What were Russians doing with social media and how social media was driving polarization

Steele claim, December 13, 2016:

[redacted] reported that over the period March-September 2016 a company called [Webzilla] and its affiliates had been using botnets and porn traffic to transmit viruses, plant bugs, steal data and conduct “altering operations” against the Democratic Party leadership.

Adrian Chen, The Agency, June 2, 2015,:

It has gone by a few names, but I will refer to it by its best known: the Internet Research Agency. The agency had become known for employing hundreds of Russians to post pro-Kremlin propaganda online under fake identities, including on Twitter, in order to create the illusion of a massive army of supporters; it has often been called a “troll farm.” The more I investigated this group, the more links I discovered between it and the hoaxes. In April, I went to St. Petersburg to learn more about the agency and its brand of information warfare, which it has aggressively deployed against political opponents at home, Russia’s perceived enemies abroad and, more recently, me.

Update: at 35:00 in this December 9, 2015 podcast, Chen describes the Russian trolls “only tweeting about Donald Trump and stuff … maybe it’s some kind of opaque strategy of like electing Donald Trump to undermine the US or something, you know like false flag kind of thing.” (h/t JL)

BuzzFeed, Hyperpartisan Facebook Pages Are Publishing False And Misleading Information At An Alarming Rate, October 20, 2016 (and virtually everything else Craig Silverman wrote in the months leading up to it):

Hyperpartisan political Facebook pages and websites are consistently feeding their millions of followers false or misleading information, according to an analysis by BuzzFeed News. The review of more than 1,000 posts from six large hyperpartisan Facebook pages selected from the right and from the left also found that the least accurate pages generated some of the highest numbers of shares, reactions, and comments on Facebook — far more than the three large mainstream political news pages analyzed for comparison.

[snip]

The rapid growth of these pages combines with BuzzFeed News’ findings to suggest a troubling conclusion: The best way to attract and grow an audience for political content on the world’s biggest social network is to eschew factual reporting and instead play to partisan biases using false or misleading information that simply tells people what they want to hear. This approach has precursors in partisan print and television media, but has gained a new scale of distribution on Facebook. And while it isn’t a solely American phenomenon — the British Labour party found powerful support from a similar voice — these pages are central to understanding a profoundly polarized moment in American life.

Actions Democrats might have taken

It’s hard to believe this December report is anything but pure disinformation. And, particularly given that it came just weeks before Manafort counseled Trump to discredit the investigation by discrediting the dossier, it’s easy to imagine that the point of this was to provide easily falsifiable information, seed politically and financially expensive lawfare, and protect Putin crony Yevgeniy Prigozhin’s contribution to the election operation.

In any case, intelligence about the publicly known trolling efforts earlier in campaign season might have led Hillary to pressure her close ally, Facebook COO Sheryl Sandberg, to take the threat more seriously — or at least to pay more attention to Facebook’s optimization program, both in her own and her opponent’s campaign. But a late report blaming a completely different company has only helped to discredit efforts to collect information on Trump’s ties to Russia.

What kompromat did Russia plan to leak on Hillary

Steele claim, June 20, 2016:

Asked about the Kremlin’s reported intelligence feed to TRUMP over recent years and rumours about a Russian dossier of “kompromat” on Hillary CLINTON (being circulated), Source B confirmed the file’s existence. S/he confided in a trusted compatriot that it had been collated by Department K of the FSB for many years, dating back to her husband Bill’s presidency, and compromised mainly eavesdropped conversations of various sorts rather than details/evidence of unorthodox or embarrassing behavior. Some of the conversations were from bugged comments CLINTON had made on her various trips to Russia and focused on things she had said which contradicted her current position on various issues. Others were probably from phone intercepts.

Josef Mifsud to George Papadopoulos, April 26, 2016, over breakfast in a London hotel: the Russians “had emails of Clinton … they have dirt on her … they have thousands of emails.”

Papadopoulos, May 10, 2016, over a drink to Australia’s Ambassador to the UK, in Kensington’s Wine Room, 2.5 miles from Orbis’ office:

During that conversation he (Papadopoulos) mentioned the Russians might use material that they have on Hillary Clinton in the lead-up to the election, which may be damaging.

[snip]

He didn’t say dirt, he said material that could be damaging to her. No, he said it would be damaging. He didn’t say what it was.

Actions Democrats might have taken

At least some of the very first documents Guccifer 2.0 released starting in June were obtained via the Podesta hack. Had the Democrats been worried about “thousands of emails” as kompromat rather than “bugged comments [and] phone intercepts … collated by Department K of the FSB for many years, dating back to her husband Bill’s presidency,” the Democrats might have prepared for an assault more directly targeting Hillary. At the very least, the Guccifer 2.0 releases would have alerted the Democrats that Crowdstrike’s advice — that usually such emails weren’t publicly released — didn’t apply in this case.

Who managed outreach to Russia

Steele claim, undated (after July 22, 2016):

This was managed on the TRUMP side by the Republican candidate’s campaign manager, Paul MANAFORT, who was using foreign policy advisor, Carter PAGE, and others as intermediaries.

Fusion GPS client Natalia Veselnitskaya, before June 9, 2016 Prevezon hearing attended by Simpson:

Around the end of May 2016, during a conversation with a good acquaintance of mine, being my client, Aras Agalarov on a topic that was not related to the United States, I shared the story faced when defending another client, Denis Katsyv, about how terribly misled the US Congress had been by the tax defrauder William Browder, convicted in Russia, who, through his lobbyists and his close-minded rank-and-file Congress staffers, succeeded in adopting the Act in the name of a person whom Browder practically hardly ever knew. I considered it my duty to inform the Congress people about it and asked Mr. Agalarov if there was any possibility of helping me or my colleagues to do this. I do not remember who of us was struck by the idea that maybe his son could talk about this with Donald Trump, Jr., who, although a businessman, was sure to have some acquaintances among Congress people.

[snip]

But upon arrival in New York in the evening of June 8, 2016, in my e-mail box I found a letter from a certain Goldstone, who notified me of the time and place of the meeting with Donald Trump, Jr. In this correspondance Aras Agalarov’s colleague, Irakli Kaveladze, who had been living in the United States for a long time and to whom I left my mail for contacts, was mentioned in the copy.

Veselnitskaya to Rob Goldstone, June 9, 9:24AM, requesting the inclusion of another Fusion client:

I am writing to ask you to pass by Mt. Trump my request to include our trusted associate and lobbyist Mr. Rinat Akhmetshin, who is working to advance these issues with several congressmen.

Paul Manafort to deputy of likely Steele contact Oleg Deripaska, Konstantin Kilimnik, July 7, 2016, of Deripaska:

If he needs private briefings we can accommodate.

Actions Democrats might have taken

On this point, the dossier proved absolutely correct. Manafort was managing the conspiracy with the Russians, at least until he was fired and his hand-picked replacement Steve Bannon took over. But the dossier’s focus on Carter Page — who was part of Russia’s outreach but a marginal figure — served to distract from the far more central figures that Fusion and its contractor Steele had no business missing: Fusion’s clients Natalia Veselnitskaya and Rinat Akhmetshin, and through them the President’s son and son-in-law, along with Manafort. And Steele contact Oleg Deripaska’s deputy, Konstantin Kilimnik.

Whether intentionally or not, the Page focus in the dossier distracted from the more central players, the ones who interacted directly with the candidate, the ones being run by Steele contact Deripaska.

Whether both sides were comfortable with ongoing operations

Steele claim, July 30, 2016, based off “late July” reporting:

The émigré said there was a high level of anxiety within the TRUMP team as a result of various accusations levelled agains them and indications from the Kremlin that President PUTIN and others in the leadership thought things had gone too far and risked spiralling out of control.

Continuing on this theme, the émigré associate of TRUMP opined that the Kremlin wanted the situation to calm but for “plausible deniability” to be maintained concerning its (extensive) pro-TRUMP and anti-CLINTON operations. S/he therefore judged that it was unlikely these would be ratcheted up, at least for the time being.

July 27, 2016, Donald Trump:

Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing. I think you will probably be rewarded mightily by our press.

July 27, 2016:

For example, on or about July 27, 2016, the Conspirators attempted after hours to spearphish for the first time email accounts at a domain hosted by a third-party provider and used by Clinton’s personal office. At or around the same time, they also targeted seventy-six email addresses at the domain for the Clinton Campaign.

[Note: I’ve spoken with someone involved in the effort to repel this attack, and he described it as a new “wave” of attacks launched seemingly in response to Trump’s comments.]

Actions Democrats might have taken

Because the targeting here was Hillary herself and not the feckless DNC, the Democrats weren’t going to be lulled by this claim that Trump and Russia were laying low. But if the report were disinformation, it may have been intended to disavow the seemingly clear tie between Trump’s requests and GRU’s response.

Who covered up Manafort’s scandals/What Cohen really was doing with Russia

Steele claim, October 19, 2016:

According to the Kremlin insider, [Michael] COHEN now was heavily engaged in a cover up and damage limitation operation in the attempt to prevent the full details of TRUMP’s relationship with Russian being exposed. In pursuit of this aim, COHEN had met secretly with several Russian Presidential Administration (PA) Legal Department officials in an EU country in August 2016. The immediate issues had been to contain further scandals involving MANNAFORT’s [sic] commercial and political role in Russia/Ukraine and to limit the damage arising from exposure of former TRUMP foreign policy advisor, Carter PAGE’s secret meetings with Russian leadership figures in Moscow the previous month.

Starting on August 15, Rick Gates helps Paul Manafort hide their Ukranian consulting by lying to the press and DOJ’s FARA Unit; Deripaska deputy Konstantin Kilimnik would remain closely involved through the next year:

For example, on August 15, 2016, a member of the press e-mailed Manafort and copied a spokesperson for the Trump campaign to solicit a comment for a forthcoming story describing his lobbying. Gates corresponded with Manafort about this outreach and explained that he “provided” the journalist “information on background and then agreed that we would provide these answers to his questions on record.” He then proposed a series of answers to the journalist’s questions and asked Manafort to “review the below and let me know if anything else is needed,” to which Manafort replied, in part, “These answers look fine.” Gates sent a materially identical message to one of the principals of Company B approximately an hour later and “per our conversation.” The proposed answers Gates conveyed to Manafort, the press, and Company B are those excerpted in the indictment in paragraph 26.

An article by this member of the press associating Manafort with undisclosed lobbying on behalf of Ukraine was published shortly after Gates circulated the Manafort-approved false narrative to Company B and the member of the press. Manafort, Gates, and an associate of Manafort’s corresponded about how to respond to this article, including the publication of an article to “punch back” that contended that Manafort had in fact pushed President Yanukovych to join the European Union. Gates responded to the punch-back article that “[w]e need to get this out to as many places as possible. I will see if I can get it to some people,” and Manafort thanked the author by writing “I love you! Thank you.” Manafort resigned his position as chairman of the Trump campaign within days of the press article disclosing his lobbying for Ukraine.

Manafort’s role with the Trump campaign is thus relevant to his motive for undertaking the charged scheme to conceal his lobbying activities on behalf of Ukraine. Here, it would be difficult for the jury to understand why Manafort and Gates began crafting and disseminating a false story regarding their Ukrainian lobbying work nearly two years after that work ceased—but before any inquiry by the FARA Unit—without being made aware of the reason why public scrutiny of Manafort’s work intensified in mid-2016. Nor would Manafort’s motives for continuing to convey that false information to the FARA Unit make sense: having disseminated a false narrative to the press while his position on the Trump campaign was in peril, Manafort either had to admit these falsehoods publicly or continue telling the lie.

Oleg Deripaska deputy Konstantin Kilimnik asks Alex van der Zwaan to call Rick Gates to cover up Yulia Tymoshenko cover-up, September 12, 2016

When confronted with an email dated September 12, 2016, sent by Person A to van der Zwaan, the defendant again lied. The email was sent to the defendant’s email address at his law firm, though the Special Counsel’s Office had obtained the email from another source. The email said, in Russian, that Person A “would like to exchange a few words via WhatsApp or Telegram.” van der Zwaan lied and said he had no idea why that email had not been produced to the government, and further lied when he stated that he had not communicated with Person A in response to the email.

[snip]

Further, van der Zwaan in fact had a series of calls with Gates and Person A—as well as the lead partner on the matter—in September and October 2016. The conversations concerned potential criminal charges in Ukraine about the Tymoshenko report and how the firm was compensated for its work.

Actions Democrats might have taken

I’m particularly interested in how Deripaska contact Christopher Steele told a story that put Michael Cohen at the center of Russia pushback rather than Manafort himself, Rick Gates, and Deripaska deputy Konstantin Kilimnik, because if this is disinformation, it served multiple purposes (not all of which I include here):

  • Distracted from Gates’ actions (and his ongoing ties with Kilimnik) while he remained a central figure on the Trump campaign and transition (effectively, ensuring that a high ranking campaign official with close ties to Deripaska’s deputy remained in place)
  • Distracted from Manafort’s reported ongoing back channel involvement in the campaign
  • Focused attention on Cohen in August, rather than his actions from January to June 2016 to negotiate a Trump Tower deal, something that probably had a more central role in the quid pro quo behind the election operation
  • Shifted focus on ongoing discussions about a Trump Tower deal between reported Steele source Sergei Millian and Russian go-between George Papadopoulos
  • Focused fall attention on Cohen on a Russian cover-up rather than on the sex worker hush payments he facilitated

Again, I don’t know that this line of Steele’s reporting is disinformation (though no evidence Cohen went to Prague has been substantiated). But if it was, it would have been a masterful distraction from a number of key threads that might have been lethal to Trump in the general election if they had become a focus.

In each of these cases, the disinformation would not so much disavow the existence of the election campaign. Indeed, in key respects — the centrality of Paul Manafort and Russia’s desire to end sanctions (though even there, the Steele dossier focused on the Ukrainian sanctions rather than the Magnitsky ones) — the dossier reported what actually happened, though both items were obvious. Rather, the disinformation would include grains of truth but incorrect details that would distract investigators and misinform Democratic decision-makers.

And all that’s before you get into how perfectly the dossier has served to discredit a very real, well-founded counterintelligence investigation and entangled Democrats and the press in expensive lawfare.

August 2016: When Paulie’s Panic Set In

/84 Comments/in , /by

As I disclosed last month, 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. 

Back in June, Eric Trump made news when he claimed that, “My father’s life became exponentially worse the minute he decided to run for president.”

That’s not yet clear — though I think it possible that conspiring with Russians to get elected may yet bring down the Trump empire and put at least one of his family members in prison.

The case may be easier to make for Paul Manafort however. As evidence laid out in his trial has made clear this week, it is true that when Viktor Yanukovych was ousted in Ukraine, he started going broke. Yet somehow, he tried to trade up the oligarch ladder, to do for Donald Trump what he had done for his Russian client in Ukraine. In doing so, however, Manafort made himself far more vulnerable to having his influence peddling and corruption exposed.

In August 2016, things started to fall apart. That’s a story increasingly told in the collective legal proceedings revealed by the Mueller inquiry.

First, recall that the Mueller team appears to have the communications between Manafort and Konstantin Kilimnik since March 2016, as this spreadsheet that appears to show a parallel constructed source of such communications suggests.

That would suggest the government has a good deal of background on the two meetings Kilimnik and Manafort had during the campaign, including the one that took place on August 2.

In August, as tension mounted over Russia’s role in the U.S. presidential race, Donald Trump’s campaign chairman, Paul Manafort, sat down to dinner with a business associate from Ukraine who once served in the Russian army.

Konstantin Kilimnik, who learned English at a military school that some experts consider a training ground for Russian spies, had helped run the Ukraine office for Manafort’s international political consulting practice for 10 years.

At the Grand Havana Room, one of New York City’s most exclusive cigar bars, the longtime acquaintances “talked about bills unpaid by our clients, about [the] overall situation in Ukraine . . . and about the current news,” including the presidential campaign, according to a statement provided by Kilimnik, offering his most detailed account of his interactions with the former Trump adviser.

[snip]

Kilimnik said his meetings with Manafort were “private visits” that were “in no way related to politics or the presidential campaign in the U.S.” He said he did not meet with Trump or other campaign staff members, nor did he attend the Republican National Convention, which took place shortly before the Grand Havana Room session. However, he said the meetings with Manafort included discussions “related to the perception of the U.S. presidential campaign in Ukraine.”

Meanwhile, as much of the evidence presented in Manafort’s EDVA case last week makes clear, he was in deep financial trouble. That’s why, prosecutors allege, he submitted fraudulent numbers to get loans fromThe Federal Savings Bank of Chicago and Citizen’s Bank, among other banks. Next week, prosecutors will probably present exhibits 268 and 269, emails to an employee, Dennis Raico (who will be granted immunity if he testifies) of TFSBC asking for the professional details of his boss, Stephen Calk. (h/t pinc)

268 2016.08.03 Email D. Raico to P. Manafort re Need S. Calk Resume

269 2016.08.04 Email P. Manafort to S. Calk re S. Calk- Professional Bio

The next day, Trump named Calk to his financial advisory committee.

Last week, prosecutors showed that, on August 10, Manafort told his tax preparer, Cindy LaPorta, that she should claim he’d be paid $2.4 million for work in Ukraine in November. (h/t NYCSouthpaw for this observation)

Even as he was allegedly engaging in bank fraud to stay afloat, Manafort (and his daughter) would get what appear to be blackmail attempts — threats to release details of his corrupt actions in Ukraine — details of which were later leaked on the dark web.

A purported cyberhack of the daughter of political consultant Paul Manafort suggests that he was the victim of a blackmail attempt while he was serving as Donald Trump’s presidential campaign chairman last summer.

The undated communications, which areallegedly from the iPhone of Manafort’s daughter, include a text that appears to come from a Ukrainian parliamentarian named Serhiy Leshchenko, seeking to reach her father, in which he claims to have politically damaging information about both Manafort and Trump.

Attached to the text is a note to Paul Manafort referring to “bulletproof” evidence related to Manafort’s financial arrangement with Ukraine’s former president, the pro-Russian strongman Viktor Yanukovych, as well as an alleged 2012 meeting between Trump and a close Yanukovych associate named Serhiy Tulub.

[snip]

In a Tuesday interview, Manafort denied brokering a 2012 meeting between Trump and Tulub and also pointied out that he wasn’t working for Trump at the time.

However, Manafort did confirm the authenticity of the texts hacked from his daughter’s phone. And he added that, before the texts were sent to his daughter, he had received similar texts to his own phone number from the same address appearing to be affiliated with Leshchenko.

He said he did not respond directly to any of the texts, and instead passed them along to his lawyer. He declined to provide the texts to POLITICO.

[snip]

Manafort said that the first of the texts arrived shortly before The New York Times published an August exposé revealing that the National Anti-Corruption Bureau of Ukraine had obtained documents — which have since come under scrutiny — that appeared to show $12.7 million in cash payments earmarked for Manafort.

That NYT story came out on August 14, just 3 days after he promised a bank he had millions more coming from Ukraine around the same time as the presidential election. The very next day, the AP would pile on, asking for comment on a story about Manafort’s undisclosed lobbying for Yanukovych that it would publish on August 17. As prosecutors pointed out in a filing in the DC case, this exchange with the AP — and the Manafort-Gates effort to sustain a lie about their lobbying campaign — is a big part of the reason they lied when DOJ asked them to register under FARA that fall.

For example, on August 15, 2016, a member of the press e-mailed Manafort and copied a spokesperson for the Trump campaign to solicit a comment for a forthcoming story describing his lobbying. Gates corresponded with Manafort about this outreach and explained that he “provided” the journalist “information on background and then agreed that we would provide these answers to his questions on record.” He then proposed a series of answers to the journalist’s questions and asked Manafort to “review the below and let me know if anything else is needed,” to which Manafort replied, in part, “These answers look fine.” Gates sent a materially identical message to one of the principals of Company B approximately an hour later and “per our conversation.” The proposed answers Gates conveyed to Manafort, the press, and Company B are those excerpted in the indictment in paragraph 26.

An article by this member of the press associating Manafort with undisclosed lobbying on behalf of Ukraine was published shortly after Gates circulated the Manafort-approved false narrative to Company B and the member of the press. Manafort, Gates, and an associate of Manafort’s corresponded about how to respond to this article, including the publication of an article to “punch back” that contended that Manafort had in fact pushed President Yanukovych to join the European Union. Gates responded to the punch-back article that “[w]e need to get this out to as many places as possible. I will see if I can get it to some people,” and Manafort thanked the author by writing “I love you! Thank you.” Manafort resigned his position as chairman of the Trump campaign within days of the press article disclosing his lobbying for Ukraine.

Manafort’s role with the Trump campaign is thus relevant to his motive for undertaking the charged scheme to conceal his lobbying activities on behalf of Ukraine. Here, it would be difficult for the jury to understand why Manafort and Gates began crafting and disseminating a false story regarding their Ukrainian lobbying work nearly two years after that work ceased—but before any inquiry by the FARA Unit—without being made aware of the reason why public scrutiny of Manafort’s work intensified in mid-2016. Nor would Manafort’s motives for continuing to convey that false information to the FARA Unit make sense: having disseminated a false narrative to the press while his position on the Trump campaign was in peril, Manafort either had to admit these falsehoods publicly or continue telling the lie.

The day the article came out, August 17, Trump gave Steve Bannon and Kellyanne Conway larger roles in the campaign. Two days later, Manafort would resign, though he would remain in the loop with Trump. Indeed, according to the hacked texts from his daughter, he remained involved and actually “hired [Bannon and Conway]. Interviewed them in trump towers.” (h/t ee)

But according to leaked texts allegedly hacked from the phone of his daughter Andrea Manafort Shand, Manafort’s resignation was all for show, and he continued to wield influence in the campaign.

On August 19, when Paul Manafort officially resigned, the allegedly hacked texts show that Manafort Shand wrote to one her contacts:

So I got to the bottom of it, as I suspected my dad resigned from being the public face of the campaign. But is still very much involved behind the scenes.

He felt he was becoming a distraction and that would ultimately take a toll on the campaign.

Several hours later, a different contact appears to have texted Andrea Manafort to say, “Thoughts go out to your pops—I can only imagine that he’s relieved, angry, hurting, a combination of a lot of emotions. Wishing you and your fam the best.” To which Andrea responded: “Hahaha you’re so silly. It’s all just pr.”

But — as the Mueller filing makes clear — the pushback on the AP and NYT stories didn’t end Manafort and Gates’ efforts to lie about their activities in Ukraine. A filing in the Alex van der Zwaan prosecution details that on September 12, 2016, in the wake of the Kyiv Post’s exposure of new details about this work (h/t ms), Kilimnik would contact van der Zwaan, leading to a series of communications between the two of them and Skadden Arps’ Greg Craig regarding how Manafort and Gates laundered money and its sources to pay Skadden for a report on Yulia Tymoshenko’s prosecution.

Instead of truthfully answering questions about his contacts with Gates and Person A, van der Zwaan lied. He denied having substantive conversations with Gates and Person A in 2016. When confronted with an email dated September 12, 2016, sent by Person A to van der Zwaan, the defendant again lied. The email was sent to the defendant’s email address at his law firm, though the Special Counsel’s Office had obtained the email from another source. The email said, in Russian, that Person A “would like to exchange a few words via WhatsApp or Telegram.” van der Zwaan lied and said he had no idea why that email had not been produced to the government, and further lied when he stated that he had not communicated with Person A in response to the email.

[snip]

Further, van der Zwaan in fact had a series of calls with Gates and Person A—as well as the lead partner on the matter—in September and October 2016. The conversations concerned potential criminal charges in Ukraine about the Tymoshenko report and how the firm was compensated for its work. The calls were memorable: van der Zwaan had taken the precaution of recording the conversations with Gates, Person A, and the senior partner who worked on the report. In van der Zwaan’s recorded conversation with Person A, in Russian, Person A suggested that “there were additional payments,” that “[t]he official contract was only a part of the iceberg,” and that the story may become a blow for “you and me personally.”

[snip]

Federal Bureau of Investigation Special Agents assisting the Special Counsel’s Office assess that Person A has ties to a Russian intelligence service and had such ties in 2016. During his first interview with the Special Counsel’s Office, van der Zwaan admitted that he knew of that connection, stating that Gates told him Person A was a former Russian Intelligence Officer with the GRU.

These are the contacts van der Zwaan hid, at first, from Mueller’s investigators. Van der Zwaan would claim he wasn’t hiding those contacts because he knew Kilimnik was a former GRU officer, but instead to hide that he recorded the conversation with Craig from the Skadden lawyers who represented him in the first interview with the FBI. But it’s still not clear why he made the recording. It sure feels like blackmail to me, though may also have been an effort to stay on track on his quest to make partner at Skadden (remember that van der Zwaan was being romanced into the family of Alfa Bank founder German Khan during 2016; he would marry Khan’s daughter in 2017).

Indeed, Paul Manafort’s life looks like a series of blackmail attempts during that period.

Which makes the stakes of the question Carrie Johnson asked in her Manafort trial round-up all the greater.

Left unanswered so far, Scott, is why Manafort joined the Trump campaign in 2016 for no money when he was bleeding. He was bleeding money and got no salary from that Trump campaign.

Why was Manafort, badly underwater at the time, willing to work for Trump for “free”? What was the $2.4 million he expected to be paid in November for?

And given all the publicly known things Manafort did out of desperation at the time, what kind of non-public desperate things could he also be coerced into doing?

Update: Added the Kyiv Post and Andrea Manafort details.

Update: Added Calk and TFSBC details.

Timeline

August 2: Manafort has an in-person meeting with Kilimnik where they discussed “the perception of the U.S. presidential campaign in Ukraine”

August 3: Manafort asks Dennis Raico for the resume of his boss, Stephen Calk

August 4: Manafort asks Raico for Calk’s professional biography

August 5: Trump named Calk to his financial advisory committee

August 10: To obtain a fraudulent bank loan, Manafort tells his tax preparer to claim $2.4 million in payments from Ukraine for which he had no documentation

Before August 14: Manafort is blackmailed, allegedly by Ukrainian politician Serhiy Leshchenko

August 14: NYT publishes “Secret Ledger in Ukraine Lists Cash for Donald Trump’s Campaign Chief”

August 15: In advance of an AP story on their undisclosed lobbying, Manafort and Gates work out a false story with Mercury Consulting and the Podesta Group

August 17: AP publishes “Paul Manafort helped a pro-Russia political party in Ukraine secretly route at least $2.2M to DC lobbyists”; Trump gives Bannon and Conway larger roles in the campaign

August 19: Manafort resigns from campaign

September 12: Kilimnik contacts van der Zwaan regarding cover-up regarding payments to Skadden Arps

How to Charge Americans in Conspiracies with Russian Spies?

/104 Comments/in , /by

As I laid out a few weeks ago, 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. 

In general, Jack Goldsmith and I have long agreed about the problems with charging nation-state spies in the United States. So I read with great interest his post laying out “Uncomfortable Questions in the Wake of Russia Indictment 2.0 and Trump’s Press Conference With Putin.” Among other larger normative points, Goldsmith asks two questions. First, does indicting 12 GRU officers in the US expose our own nation-state hackers to be criminally prosecuted in other countries?

This is not a claim about the relative moral merits of the two countries’ cyber intrusions; it is simply a claim that each side unequivocally breaks the laws of the other in its cyber-espionage activities.

How will the United States respond when Russia and China and Iran start naming and indicting U.S. officials?  Maybe the United States thinks its concealment techniques are so good that the type of detailed attribution it made against the Russians is infeasible.  (The Shadow Brokers revealed the identities of specific NSA operators, so even if the National Security Agency is great at concealment as a matter of tradecraft that is no protection against an insider threat.)  Maybe Russia and China and Iran won’t bother indicting U.S. officials unless and until the indictments actually materialize into a trial, which they likely never will.  But what is the answer in principle?  And what is the U.S. policy (if any) that is being communicated to military and civilian operators who face this threat?  What is the U.S. government response to former NSA official Jake Williams, who worked in Tailored Access Operations and who presumably spoke for many others at NSA when he said that “charging military/gov hackers is dumb and WILL eventually hurt the US”?

And, how would any focus on WikiLeaks expose journalists in the United States to risks of prosecution themselves.

There is a lot of anger against WikiLeaks and a lot of support for indicting Julian Assange and others related to WikiLeaks for their part in publishing the information stolen by the Russians.  If Mueller goes in this direction, he will need to be very careful not to indict Assange for something U.S. journalists do every day.  U.S. newspapers publish information stolen via digital means all the time.  They also openly solicit such information through SecureDrop portals.  Some will say that Assange and others at WikiLeaks can be prosecuted without threatening “real journalists” by charging a conspiracy to steal and share stolen information. I am not at all sure such an indictment wouldn’t apply to many American journalists who actively aid leakers of classified information.

I hope to come back to the second point. As a journalist who had a working relationship with someone she came to believe had a role in the attack, I have thought about and discussed the topic with most, if not all, the lawyers I consulted on my way to sitting down with the FBI.

For the moment, though, I want to focus on Goldsmith’s first point, one I’ve made in the past repeatedly. If we start indicting uniformed military intelligence officers — or even contractors, like the trolls at Internet Research Agency might be deemed — do we put the freedom of movement of people like Jake Williams at risk? Normally, I’d absolutely agree with Goldsmith and Williams.

But as someone who has already written extensively about the ConFraudUs backbone that Robert Mueller has built into his cases, I want to argue this is an exception.

As I’ve noted previously, while Rod Rosenstein emphasized that the Internet Research Agency indictment included no allegations that Americans knowingly conspired with Russians, it nevertheless did describe three Americans whose activities in response to being contacted by Russian trolls remain inconclusive.

Rod Rosenstein was quite clear: “There is no allegation in the indictment that any American was a knowing participant in the alleged unlawful activity.” That said, there are three (presumed) Americans who, both the indictment and subsequent reporting make clear, are treated differently in the indictment than all the other Americans cited as innocent people duped by Russians: Campaign Official 1, Campaign Official 2, and Campaign Official 3. We know, from CNN’s coverage of Harry Miller’s role in building a cage to be used in a fake “jailed Hillary” stunt, that at least some other people described in the indictment were interviewed — in his case, for six hours! — by the FBI. But no one else is named using the convention to indicate those not indicted but perhaps more involved in the operation. Furthermore, the indictment doesn’t actually describe what action (if any) these three Trump campaign officials took after being contacted by trolls emailing under false names.

On approximately the same day, Defendants and their co-conspirators used the email address of a false U.S. persona, [email protected], to send an email to Campaign Official 1 at that donaldtrump.com email account, which read in part:

Hello [Campaign Official 1], [w]e are organizing a state-wide event in Florida on August, 20 to support Mr. Trump. Let us introduce ourselves first. “Being Patriotic” is a grassroots conservative online movement trying to unite people offline. . . . [W]e gained a huge lot of followers and decided to somehow help Mr. Trump get elected. You know, simple yelling on the Internet is not enough. There should be real action. We organized rallies in New York before. Now we’re focusing on purple states such as Florida.

The email also identified thirteen “confirmed locations” in Florida for the rallies and requested the campaign provide “assistance in each location.”

[snip]

Defendants and their co-conspirators used the false U.S. persona [email protected] account to send an email to Campaign Official 2 at that donaldtrump.com email account.

[snip]

On or about August 20, 2016, Defendants and their co-conspirators used the “Matt Skiber” Facebook account to contact Campaign Official 3.

Again, the DOJ convention of naming makes it clear these people have not been charged with anything. But we know from other Mueller indictments that those specifically named (which include the slew of Trump campaign officials named in the George Papadopoulos plea, KT McFarland and Jared Kushner in the Flynn plea, Kilimnik in the Van der Zwaan plea, and the various companies and foreign leaders that did Manafort’s bidding, including the Podesta Group and Mercury Public Affairs in his indictment) may be the next step in the investigation.

In the GRU indictment, non US person WikiLeaks is given the equivalent treatment.

On or about June 22, 2016, Organization I sent a private message to Guccifer 2.0 to “[s]end any new material [stolen from the DNC] here for us to review and it will have a much higher impact than what you are doing.” On or about July 6, 2016, Organization 1 added, “if you have anything hillary related we want it in the next tweo [sic] days prefable [sic] because the DNC [DemocraticNationalConvention] is approaching and she Will solidify bernie supporters behind her after.” The Conspirators responded,“0k . . . i see.” Organization I explained,“we think trump has only a 25% chance of winning against hillary . . . so conflict between bernie and hillary is interesting.”

But the activities of other American citizens — most notably Roger Stone and Donald Trump — are discussed obliquely, even if they’re not referred to using the standard of someone still under investigation. Here’s the Roger Stone passage.

On or aboutAugust 15,2016, the Conspirators,posing as Guccifer 2.0,wrote to a person who was in regular contact with senior members of the presidential campaign of Donald J. Trump, “thank u for writing back. . . do u find anyt[h]ing interesting in the docs i posted?” On or about August 17, 2016, the Conspirators added, “please tell me if i can help u anyhow . . . it would be a great pleasureto me.” On or about September 9, 2016,the Conspirators, again posing as Guccifer 2.0, referred to a stolen DCCC document posted online and asked the person, “what do u think of the info on the turnout model for the democrats entire presidential campaign.” The person responded,“[p]retty standard.”

The Trump one, of course, pertains to the response GRU hackers appear to have made when he asked for Russia to find Hillary’s emails on July 27.

For example, on or about July 27, 2016, the Conspirators attempted after hours to spearphish for the first time email accounts at a domain hosted by a third‑party provider and used by Clinton’s personal office. At or around the same time, they also targeted seventy‐six email addresses at the domain for the Clinton Campaign.

Finally, there is yesterday’s Mariia Butina complaint, which charges her as an unregistered Russian spy and describes Aleksandr Torshin as her boss, but which also describes the extensive and seemingly willful cooperation with Paul Erickson and another American, as well as with the RNC and NRA. Here’s one of the Americans, for example, telling Butina that her Russian bosses should take the advice he had given her about which Americans she needed to meet.

If you were to sit down with your special friends and make a list of ALL the most important contacts you could find in America for a time when the political situation between the U.S. and Russia will change, you could NOT do better than the list that I just emailed you. NO one — certainly not the “official” Russian Federation public relations representative in New York — could build a better list.

[snip]

All that you friends need to know is that meetings with the names on MY list would not be possible without the unknown names in your “business card” notebook. Keep them focused on who you are NOW able to meet, NOT the people you have ALREADY met.

Particularly as someone whose communications (including, but not limited to, that text) stand a decent chance of being quoted in an indictment in the foreseeable future, let me be very clear: none of these people have been accused of any wrong-doing.

But they do suggest a universe of people who have attracted investigative scrutiny, both by Mueller and by NSD, as willing co-conspirators with Russian spies.

Granted, there are three different kinds of Russian spies included in these three documents:

  • Uniformed military intelligence officers working from Moscow
  • Civilian employees who might be considered intelligence contractors working from St. Petersburg (though with three reconnaissance trips to the US included)
  • Butina and Torshin, both of whom probably committed visa fraud to engage as unregistered spies in the US

We have a specific crime for the latter (and, probably, the reconnaissance trips to the US by IRA employees), and if any of the US persons and entities in Butina’s indictment are deemed to have willingly joined her conspiracy, they might easily be charged as well. Eventually, I’m certain, Mueller will move to start naming Americans (besides Paul Manafort and Rick Gates) in conspiracy indictments, including ones involving Russian spies operating from Russia (like Konstantin Kilimnik). It seems necessary to include the Russians in some charging documents, because otherwise you’ll never be able to lay out the willful participation of everyone, Russian and American, in the charging documents naming the Americans.

So while I generally agree with Goldsmith and Williams, this case, where we’re clearly discussing a conspiracy between Russian spies — operating both from the US and from Russia (and other countries), wearing uniforms and civilian clothing –and Americans, it seems important to include them in charging documents somewhere.

Manafort and His Co-Conspirators Adopt the Communications Habits of David Petraeus and Paula Broadwell

/28 Comments/in , /by

Back in January, I observed with some surprise that Paul Manafort was conducting his ongoing dalliance with Oleg Deripaska’s flunkie Konstantin Kilimnik on a PRISM provider’s server.

Which is why I find it so interesting that prosecutor Greg Andres emphasized Manafort and … he didn’t say whom (at least per the two reports that covered this) were communicating using the “foldering” technique that terrorists and unfaithful CIA Directors have been known to use in the past. Here’s how Josh Gerstein described the exchange:

“This was a sustained campaign over a five-week period,” Andres declared, saying it involved “multiple” phone calls, texts and other messages.

[snip]

The two sides also squared off during the hearing about Manafort’s use of technology. Andres raised a new allegation that Manafort engaged in a practice knows as “foldering,” where two or more people trade messages through draft folders in an email account. The prosecutor provided few details but suggested it was part of “a history of deception on behalf of Mr. Manafort in this case.”

Westling didn’t address that issue, but said prosecutors were going too far in seeing cloak-and-dagger spycraft in Manafort’s use of popular messaging apps, like WhatsApp, that encrypt their contents.

Here’s how CNN’s Marshall Cohen described it.

Prosecutors said Manafort used a method called “foldering” to covertly talk to people. It’s not that complicated: He made an email account and shared the password. He wrote messages but saved them as drafts, never sending actual emails. Other guys open the draft, read it, delete.

For some time, Manafort has known Mueller had obtained a search warrant for this email in August (though I guess he didn’t learn that before being caught emailing Kilimnik in November).

And while it’s unclear, it seems likely, given the context and Andres’ reference to “other messages,” that Manafort adopted the foldering technique (stupidly, given that FBI has been able to catch people using it since David Petraeus got busted this way and CIA long before that) as a way to attempt to continue communications, and that they were used as part of Manafort and Kilimnik’s efforts to reach out to Alan Friedman. Andres seems to have suggested at the hearing that Manafort continues to get new phones.

Here’s the thing, though. While Mueller’s repeated efforts to use Manafort’s ongoing communications with Kilimnik against him have made for amusement. they also seem a good signal to Manafort about what else the government has collected, and not necessarily just with Kilimnik.

Ah well, Manafort now has time on his hands to reflect on what comms that means Mueller has obtained.

The Decline and Recent Fall of Manafort’s Hapsburg Empire

/10 Comments/in , /by

It turns out the government was telling the truth (not that I doubted it) when they told Judge Amy Berman Jackson they’ve only just put together the evidence that Paul Manafort violated bail by trying to suborn perjury from Alan Friedman and Eckart Sager, the two flacks who set up the Hapsburg Group for Manafort back in 2012. That’s made clear by comparing the materials submitted back on May 25 asking for leave to object to Manafort’s then just finalized bail proposal and the materials — particularly the declaration from FBI Agent Brock Domin — released in conjunction with Mueller’s motion to revoke or revise bail.

For example, whereas the later Domin declaration notes that Friedman and Sager (identified as Person D1 and D2) “provided the content of the text messages described below in May 2018,” Domin’s earlier declaration provides the specific dates.

Person D1 provided the text messages described below on May 12, 2018, and Person D2 provided the content of the text messages described below on May 21, 2018.

And while the earlier declaration relies on statements from Friedman,

Documents produced by Persons D1 and D2, statements made by Person D1 to the government, and documents recovered pursuant to a court-authorized search of Manafort’s iCloud account evidence that Manafort,

The later declaration refers to statements from Sager, too.

Documents produced by Persons D1 and D2, statements made by Persons D1 and D2 to the government, telephone records obtained by the government, and documents recovered pursuant to a court-authorized search of Manafort’s iCloud account evidence that Manafort,

So Sager must have been interviewed between May 25 and June 4.

A filing submitted last night, providing even more detail describing why Manafort should have his bail revoked includes this great quote from Sager, though it’s unclear when he gave it.

Manafort’s references to the Hapsburg member’s “role” and the “EP” refer to that Hapsburg member’s position as a representative of the European Parliament and the parallel actions of the European Parliament and the United States Senate regarding Tymoshenko’s imprisonment in 2012. That characterization is consistent with Person D2’s description, during a meeting with the government, of that Hapsburg member’s role as Manafort’s “spy and mouthpiece.”

And, as reflected both in the passage cited above and by comparing the two communication logs, the government did not reference toll records from Manafort in the May 25 filing but did in the June 4 one, suggesting that along with a Sager interview, they obtained the toll records after May 25.

Which raises two interesting questions for me: first, had the government interviewed Friedman and Sager before Manafort tried to suborn their perjury? If Mueller’s team hadn’t, it makes his effort all the more interesting, as if he somehow knew that. And also, did the government obtain proof of these communications (likely, via monitoring Manafort’s iCloud account) before reaching out to Friedman and Sager, whether anew or for the first time?

Interestingly, the earlier Domin declaration makes it clear Friedman took screen caps of the WhatsApp comms he had with Manafort contemporaneously, so even if he weren’t backing up his super secret obstruction of justice to Apple’s cloud, he’d have been fucked.

Person D1 has provided the government screen shots that Person D1 took contemporaneously of these messages.

That suggests it’s possible that Friedman contacted (possibly recontacted) the government to let them know this. But that doesn’t explain the two and a half month delay between the time Manafort tried to suborn perjury and the time the government actually chased this detail down.

On the Tactics of the Latest Manafort Indictment

/55 Comments/in , , /by

When I went out to run errands yesterday, Paul Manafort was likely facing having his bail revoked next Friday and going to jail, from where he would fight charges that could put him in prison for the rest of his life. When I returned after an hour and a half, Paul Manafort — faced with a new superseding indictment — was probably facing having his bail revoked next Friday and going to jail, from where he will fight charges that could put him in prison for the rest of his life. That is, nothing much has changed, especially if you’ve been following along closely enough to know that Konstantin Kilimnik, who finally got added to Manafort’s indictments, has always been a key part of the election year conspiracy and the damage control since.

The key development, in my mind, is tactical. As Popehat explained in one of two great lawsplainers yesterday, the standard on revoking bail in any case is just probable cause that you’ve committed new crimes while being out on bail. By getting the grand jury to indict the underlying behavior behind the witness tampering claim, you’ve established probable cause.

And by the way, those accusations that Manafort committed a crime on bail? Mueller got a grand jury indictment, establishing probable cause. That may be all the judge requires. Manafort’s in trouble. I mean, even in the context of someone facing multiple indictments trouble.

This makes easier for Amy Berman Jackson to send Manafort to jail next Friday, effectively outsourcing the decision to a bunch of anonymous grand jurors. That is, it takes a likely action and makes it even more likely.

I’m interested in what it does to preserve evidence, though.

Manafort submitted his opposition to having his bail revoked last night, effectively claiming that Mueller has shown almost no evidence of witness tampering.

The Special Counsel creates an argument based on the thinnest of evidence; to wit, Mr. Manafort violated the Release Order’s standard admonition that a defendant not commit an offense while on release by allegedly attempting to tamper with trial witnesses. However, the scant proof of this claim is an 84-second telephone call and a few text messages between Mr. Manafort (or an associate referred to as “Person A”) and two former business associates(Doc. 315-2, Ex. N). These brief text messages followed the filing of the Superseding Indictment on February 23, which was the first time the Special Counsel raised any allegations about the mission and work of the Hapsburg Group. (Doc. 202, ¶¶30, 31.) Closer scrutiny of this “evidence” reveals that the Special Counsel’s allegations are without merit because Mr. Manafort’s limited communications cannot be fairly read, either factually or legally, to reflect an intent to corruptly influence a trial witness.

The merits aside (remember, Jeffrey Sterling spent years in prison based in significant part on metadata showing 4:11 in phone calls, without content, between him and James Risen), I find this footnote most interesting.

2 This is no small matter. It is clear from the Special Agent’s declaration that the agent spoke with the person on the other end of the call (i.e., D1). (See Doc. 315-2, ¶¶ 19, 20). Instead of identifying what was said exactly for purposes of this motion, however, the Special Counsel instead states what D1 “understood” from Mr. Manafort’s brief text messages—not the telephone call that occurred. Id. at ¶19. The Special Agent also states what D1 opines, i.e., what D1 believes Mr. Manafort knew. Id. Person D2, with whom Mr. Manafort had no telephone conversations or text messages, states that D1 told him (D2) that he “abruptly ended the call.” Id. at ¶ 20.

Manafort is complaining that Mueller didn’t reveal precisely what FBC Group’s Alan Friedman (see this post to explain who he is) told the government about the call. Had Mueller not indicted, then he would have had a real incentive to call Friedman as a witness next week to explain precisely why Manafort’s comments reeked of obstruction. Mueller has likely presented the substance of the call to the grand jury, however, and may now have less need to put Friedman on the stand next week.

But there is probably far more interesting evidence that Mueller presented to the grand jury to substantiate these two charges:

Obstruction of Justice

From in or about and between February 23, 2018, and April 2018, both dates being approximate and inclusive, within the District of Columbia and elsewhere, the defendants PAUL J. MANAFORT, JR., and KONSTANTIN KILIMNIK knowingly and intentionally attempted to corruptly persuade another person, to wit: Persons D1 and D2, with intent to influence, delay, and prevent the testimony of any person in an official proceeding

Conspiracy to Obstruct Justice

From in or about and between February 23, 2018, and April 2018, both dates being approximate and inclusive, within the District of Columbia and elsewhere, the defendants PAUL J. MANAFORT, JR., and KONSTANTIN KILIMNIK knowingly and intentionally conspired to corruptly persuade another person, to wit: Persons D1 and D2, with intent to influence, delay, and prevent the testimony of any person in an official proceeding, in violation of 18 U.S.C. § 1512(b)(1).

Charging both the obstruction charge and the conspiracy charge is, in some ways, insurance. It implicates Manafort in what are mostly Kilimnik’s efforts to get Friedman on the phone to coordinate stories.

But to charge conspiracy to obstruct, as opposed to just obstruction, Mueller also needs to show an agreement between Manafort and Kilimnik. Such an agreement would likely get to the core of Manafort’s intent more quickly than the calls as received by D1. That is, such an agreement would be the evidence that Manafort claims is lacking.

Which brings me to this exhibit, submitted Monday as part of the government’s motion to revoke bail, which is an XLS spreadsheet bearing the title “Open Source Timeline – March 2016 to March 2017 – Edited_lm.xlsx” uploaded to the docket.

It tracks the phone, WhatsApp, and Telegram communications between Manafort and Person D1 and D2, and the WhatsApp and Telegram chats between Kilimnik and D1 and D2 (Manafort uses WhatsApp once to place a phone call, but otherwise the WhatsApp and Telegram communications are all chats). It shows that the government has third-party sources for all of this — either D1 and D2 turning things over on their own, Manafort’s phone company (he was using AT&T quite recently) turning over his toll records, or Apple turning over the contents of Manafort’s iCloud account.

The table also shows time tracked in two scales: All of Manafort’s communications and the single chat between Kilimnik and D1 are in Coordinated Universal Time, while all of Kilimnik’s chats with D2 are in Central European Summer Time. You might get the latter via screen shots from a phone taken while in Central Europe.

Note, even though Kilimnik tells D2 that he had tried D1 “on all numbers,” the log doesn’t show any calls between Kilimnik and D1, it shows only the one WhatsApp chat between Kilimnik and D1. So the log doesn’t even show all the communications to D1 that exist. Just those that the government can provide a source that it’s willing to share publicly. I assure you, however, that the government knows when those calls were placed.

The log, as presented, also doesn’t show any communications between Manafort and Kilimnik.

Now go back to the fact that, yesterday, the government showed the grand jury not just evidence that Manafort and Kilimnik individually tried to suborn perjury from D1 and D2, but that they agreed to do so. At the very least, that would involve communications between the two of them. They’re only going to have the substance of that communication in one of two ways, though: if they did this via WhatsApp chats, those chats would be available on Manafort’s iCloud account, because he’s got really bad OpSec.

But if those communications were via a phone or WhatsApp call, then the government would have gotten that communication via some other means, means it hasn’t shown in that contact log. Keep in mind: as a foreigner with key connections, Kilimnik is a legitimate spying target under any definition of the term, even aside from the allegation he’s got active ties to Russian intelligence. And since January 2017, the NSA has been able to share raw EO 12333 intelligence with intelligence agencies, including the FBI. If that sharing works the same way Section 702 sharing works (and Kilimnik’s WhatsApp activity may or may not be collectable under 702, even before you get to EO 12333 collection), then so long as the FBI has a full investigation, it can obtain raw feeds of the targets covered by that full investigation.

No FISA notice has been filed in this case; it’s not clear whether the government would give notice of EO 12333 data (they should but they likely don’t). In either case they’d only have to if they intended to use that information in trial. The rest, they’d parallel construct by obtaining from the other parties to a communication or Manafort’s iCloud account.

Now, I suspect Mueller did not intend to file a document indicating that this communication log was originally started with a March 2016 to March 2017 scope, making it clear they’ve got a collection of parallel constructed sources for Kilimnik and Manafort communications that go back that far, right back to when Manafort joined the Trump campaign (which is slightly different than saying they got all of Manafort’s communications during the campaign).

That they’re still using the log to track the duo’s really idiotic ongoing communications is testament to the fact that since Manafort was indicted in October, the government has just been sitting back, watching everything Manafort and Kilimnik do and say to each other while getting Rick Gates to flip, collecting more information, and forcing Manafort to pledge all remaining liquidity to get bail. They’ve been watching Manafort and Kilimnik continue their efforts to try to get out of the deep shit Manafort is in, biding their time.

At the very least, revealing the communication log on Monday would have led Manafort to finally change the privacy settings on his phone, though it may well have led to a noticeable security change from Kilimnik as well, perhaps even a new phone without an FBI or NSA sensor collecting everything.

In the interim, too, other corners of the government revealed, in fairly spectacular fashion, that they can and will obtain the Signal and WhatsApp chats involving journalists of even congressional staffers like James Wolfe, meaning not just that they would do the same for alleged criminals out on bail and their co-conspirators, but that the means to do so has become readily available to the FBI for national security investigations. In short, this week the government tipped their hand about a whole slew of communications involving Manafort and Kilimnik that haven’t been disclosed in discovery yet as well as a capability that even lots of national security journalists (present company excepted) didn’t know they had.

Thus the grand jury and the new charges. It strikes me that, after disclosing the additional collection the FBI has on these two (though both have been fairly stupid in response to such disclosures in the past), the government has less incentive to let Manafort remain out on bail, because it will have a diminishing yield of information about the conspiracy. But the government also has a need to move things along without presenting everything they’ve got (including what they’ve asked Friedman about the developments post April 2 that led Kilimnik to try reaching out a second time). The new indictment provides a way to get to probable case without showing everything they’ve got, which in turns makes the chances that Manafort will finally be going to jail that much higher.

Update: On June 12, the government elaborated on the evidence showing that Manafort intended to suborn perjury, noting that the indictment should be enough by itself to revoke bail.

On June 8, 2018, a grand jury sitting in the District of Columbia returned a Superseding Indictment charging Manafort and his longtime associate, Konstantin Kilimnik, with attempted witness tampering and conspiracy to commit witness tampering, in violation of 18 U.S.C. §§ 1512(b)(1) and (k). See Doc. 318 ¶¶ 48-51. Counts Six and Seven of that Superseding Indictment “‘conclusively determine[] the existence of probable cause’ to believe the defendant” committed a federal crime while on pretrial release. Kaley v. United States, 134 S. Ct. 1090, 1097 (2014) (quoting Gerstein v. Pugh, 420 U.S. 103, 117 n.19 (1975)); see also United States v. Smith, 79 F.3d 1208, 1210 (D.C. Cir. 1996) (“[T]he indictment alone would have been enough to raise the rebuttable presumption that no condition would reasonably assure the safety of the community.”). Probable cause to believe that Manafort committed a crime, in turn, triggers a rebuttable presumption “that no condition or combination of conditions will assure that [Manafort] will not pose a danger to the safety of any other person or the community.” 18 U.S.C. § 3148(b). Manafort’s challenge to the strength of the government’s evidence of witness tampering is thus both misplaced and unavailing. See Kaley, 134 S. Ct. at 1098 & n.6 (explaining that “[t]he grand jury gets to say—without any review, oversight, or second-guessing—whether probable cause exists to think that a person committed a crime,” and recognizing that this “unreviewed finding . . . may play a significant role in determining a defendant’s eligibility for release before trial under the Bail Reform Act”). 1

The go on to suggest that given the indictment, they don’t even need to bring the FBI agent to testify, but will.

Although the government submits that the grand jury’s probable-cause determination obviates the need for testimony by the agent who signed the declaration in support of the government’s motion to revoke or revise, the agent will be available to testify if needed per the Court’s Order. The government submits, however, that any remaining factual matters can be addressed by proffer, as is common practice at bail hearings. See Smith, 79 F.3d at 1210; see also United States v. LaFontaine, 210 F.3d 125, 131 (2d Cir. 2000) (calling it “well established . . . that proffers are permissible both in the bail determination and bail revocation contexts”).

Again, all this seems designed to make it easy for Amy Berman Jackson to revoke his bail.

Manafort Renewed His Outreach to FBC Group after Mueller’s Early April Revelations

/71 Comments/in , , /by

As I noted, last night Mueller’s team moved to revoke Paul Manafort’s bail because — they allege — he has been attempting to suborn perjury from witnesses associated with the FBC Group PR firm. In addition to a declaration laying out the evidence for that claim, Mueller’s team included a list of contacts between Manafort himself and Konstantin Kilimnik with people at FBC Group. Amy Berman Jackson has scheduled a hearing for June 15 to consider the motion.

As the declaration lays out, person D1 (likely Alan Friedman) hadn’t spoken to Manafort since last July, probably before his public raid by the FBI and around the time Friedman started cooperating with the government. He hung up when Manafort called him in February and regarded the outreach as an effort to suborn perjury.

Person D1 told the government that in or around this period, Manafort called Person D1, and that the two had not spoken since July of the previous year. Person D1 stated that after answering the call and after the caller identified himself as Manafort, Manafort stated that he wanted to give Person D1 a heads-up about Hapsburg. Person D1 immediately ended the call because he was concerned about the outreach.

[snip]

Person D1 told the government that Person D1 understood Manafort’s messages to be an effort to “suborn perjury” by influencing Person D1’s potential statements. Person D1 well knew and believed from frequent interactions with its members that the Hapsburg group in fact lobbied in the United States, and that Manafort and Person A knew that fact.

Most of the declaration focuses on a set of communications immediately in the wake of Rick Gates’ plea deal, which made it clear Mueller had expanded Manafort’s prosecution to include actions of the Hapsburg Group — a bunch of European bigwigs Manafort hired to lie about Ukraine publicly and to Congress. I noted the day of Manafort’s first call that Friedman was surely cooperating with Mueller, but apparently I’m smarter than Manafort.

What I’m interested in, however, is that on April 4, Kilimnik tried again, with WhatsApp and Telegram outreach to both D1 and the PR person on the project.

Unlike the Hapsburg specific outreach, the declaration offers no explanation for Kilimnik’s April outreach.

Approximately one month later, Person A reached out to Person D1 directly as well. On April 4, 2018, Person A sent a message to Person D1: “Hi. This is [Person A’s first initial]. My friend P is looking for ways to connect to you to pass you several messages. Can we arrange that.” Person A reached out to Person D2 the same day, and reiterated his need for help in connecting Person D1 with Manafort. Person A added in his text to Person D2: “I tried him [i.e., Person D1] on all numbers.”

This outreach is non-specific. Kilimnik just appears to have an urgent need to reach out to (presumably) Friedman, in Manafort’s name, on April 4.

The timing is particularly interesting to me. The outreach happens in the wake of the Alex Van Der Zwaan sentencing filings, which provided more detail on Skadden Arp’s involvement in the Yulia Tymoshenko whitewash, and as such may have concerned the Hapsburg players. In addition, the prosecution filing for the first time made (and repeated Rick Gates’ indirect) allegations that Kilimnik himself was and might still be a Russian intelligence officer.

Federal Bureau of Investigation Special Agents assisting the Special Counsel’s Office assess that Person A has ties to a Russian intelligence service and had such ties in 2016. During his first interview with the Special Counsel’s Office, van der Zwaan admitted that he knew of that connection, stating that Gates told him Person A was a former Russian Intelligence Officer with the GRU.

The outreach also happened in the wake of Mueller’s filing of the Rosenstein Memo, as well as public claims that included Oleg Deripaska in the scope of the investigation.

So it’s likely that Paul Manafort and Konstantin Kilimnik regarded those early April filings as impacting in some way on FBC Group, and possibly on Alan Friedman personally.

Of course, Friedman wasn’t playing Manafort’s games by that point, and hadn’t been already for over a month (and probably over 8 or 9 months).

Whatever else Manafort learned with yesterday’s filings, he likely also confirmed that. Whatever added risk those early April filings posed to Manafort, FBC Group is probably part of the risk, not part of his efforts to dodge the risk.

Update: I made an error in this post originally, by saying that it pertains to Mercury (Company A or B in Mueller’s findings). Josh Gerstein correctly IDs the company as FBC Media, which would make D1 Alan Friedman.

On Those Five AT&T Phones Manafort Wanted To Learn About

/51 Comments/in , /by

Yesterday, Amy Berman Jackson rejected Paul Manafort’s effort to get the last of the affidavits used to get warrants against him unsealed. The challenge started as an effort to get seven warrant affidavits unsealed; along the way, Manafort got a completely unredacted copy of the affadavit behind the search of his condo (which would have been the first one reflecting the government’s knowledge of his role in the June 9 meeting), and the name of a confidential source — actually a known former employee of his — behind the warrant to search his storage facility.

Along with some other government disclosure, that left two affidavits. A warrant to search his email account.

In the Matter of the Search of Information Associated with Email Account [email protected] (D.D.C.) (17-mj-00611).

Based on the DC docket, I think this warrant would have been obtained sometime between August 14 and 18 of last year. This is the email address that Mueller’s team caught Manafort using to conduct ongoing discussions with Konstantin Kilimnik last November (though Kilimnik’s side would have been accessible via a Section 702 served on Google).

The other warrant is one to obtain information relating to five AT&T phones.

In the Matter of the Search of Information Associated with Five Telephone Numbers Controlled by AT&T (D.D.C.) (18-sc-609).

In her order, ABJ explained that the government is only withholding the names of confidential sources and stuff pertaining to investigations other than the money laundering investigations currently pending against Manafort.

The government argues that the information that is currently being withheld fell within two categories: the names of confidential sources who had provided information to the government, and information relating to ongoing investigations that does not bear upon the allegations in either of the two cases now pending against Manafort.

An earlier filing explained that the second, AT&T, affidavit was obtained on March 9 and it covers “ongoing investigations that are not the subject of either of the current prosecutions involving Manafort.”

On April 4, 2018, the government produced in redacted form, and for the first time, an affidavit supporting a search warrant that had been obtained on March 9, 2018. That affidavit likewise contains redactions—albeit more substantial ones—relating to ongoing investigations that are not the subject of either of the current prosecutions involving Manafort.

As I believe others pointed out at the time, this would put it just a few weeks after Rick Gates pled on February 23, and so might reflect information obtained with his cooperation.

In her ruling, ABJ cited the last week’s hearing, suggesting that the phones still redacted in the affidavit materials might not be Manafort’s.

THE COURT: What if — I think one of them is about phone information. What if the redacted phones are not his phone?

MR. WESTLING: I don’t have a problem with that. I think we’re talking about things that relate to this defendant in this case.

Since just before this phone data was obtained, Mueller’s team has focused closely on Roger Stone, starting with the Sam Nunberg meltdown on March 5, including a retracted claim that Trump knew of the June 9 meeting the week beforehand (there’s a phone call Don Jr placed on June 6 that several committees think may have been to Trump, something Mueller presumably knows). Ted Malloch was stopped at the border and interviewed (and had his phone seized) on March 30, and scheduled for a since aborted grand jury appearance on April 13. Stone assistants John Sullivan and Jason Kakanis were subpoenaed earlier in May. Of particularly interest, Michael Caputo was interviewed about meetings he and Stone had with Gates before and during the campaign.  Stone’s finances have been probed. Stone says he expects an indictment, but claims it would pertain to issues unrelated to colluding with Russia.

These details may, of course, be entirely unrelated. But Mueller sure has focused closely on Stone in the wake of obtaining information on those phones that don’t belong to Manafort.

Meanwhile, Manafort has started a fund to pay what must be astronomical legal bills. He may make bail this week, or Mueller’s team may move the goalposts.

Update: Jason Sullivan appeared before the grand jury today (Friday June 1), though he was originally subpoenaed to appear on May 18. That, plus the Ted Malloch detail, suggests Mueller is juggling the Stone witnesses.