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When Secret Servers Bump Up against Prosecutorial Independence and Following the Evidence

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CNN has a story reporting that President-Elect Biden will be granted access to the secret server where Trump has stashed the transcripts of his sensitive discussions with world leaders. It frames the story around the question of whether or not Biden will release those records, reporting that he probably will respect their sensitivity.

A person close to the Biden transition team told CNN that no decisions have been made about how these sensitive materials will be handled when the President-elect takes office on January 20, and that it’s likely they will maintain the Trump administration’s close hold on such information, at least at first, until they are settled in and Jake Sullivan, Biden’s pick for national security adviser, can assess their information security needs.

A senior US official said that the Biden team will be given access to a secret server containing sensitive information related to President Donald Trump’s more controversial conversations with foreign leaders on a need-to-know basis and the Trump administration is prepared to share any information that they deem to be relevant to their future decision-making process.

The story seems to be sourced to one Biden transition official, serving as a source for what the Biden administration will do, and a Trump official, serving as a source for how Trump White House will deal with this information during the Transition. In context, describing what to do about known conversations that got buried on Trump’s secret server, this comment is from the latter.

There are fast moving issues where policies or military technologies have changed in the four years since Biden’s political team left government, in particular, in relation to China and Turkey, something the current US official said will be a priority in discussions with the Biden landing teams.

The official said that basic details pertaining to Trump’s conversations with foreign leaders like Russian President Vladimir Putin and Saudi Arabia’s Crown Prince Mohammed Bin Salman, will only be shared if they are relevant to a pending policy or national security matter.

“There’s a lot to cover,” the senior US official said. “We are going to share anything that’s relevant for them to come to grips with reality when the keys are theirs. If there was something like that that’s actually of note… things on the covert side, for example, we will highlight them very quickly.”

That is, Biden will get news of Trump’s current plans involving Turkey and China, but will not get the details of what Trump promised away to Putin or whether he shared information on Jamal Khashoggi with MbS.

This particular frame comes from the sources, and while useful to know, doesn’t answer the question for the Biden administration. After all, Biden has answered questions about whether he would prosecute Trump or those close to him appropriately, by saying he plans to pick a good Attorney General and stay the fuck out of DOJ investigations. That means he might face difficult questions about what to do with these transcripts if a Congressional committee (they’ve already demanded the Putin transcripts) or prosecutors asked for known and/or relevant transcripts.

Just as an example, when the whistleblower revealed that President Trump had extorted the President of Ukraine to provide him election help, any normally functioning DOJ would have immediately identified the related case involving Rudy Giuliani’s associates Igor Fruman and Lev Parnas. That would have given SDNY jurisdiction over the fate of Trump’s extortionist call.

As of now, though, the Fruman and Parnas case remains ongoing (it will present one of the more difficult pardon decisions for Trump), and SDNY got David Correia to plead just before the election, while obscuring whether he will cooperate with prosecutors. If the case is not in some way entirely killed, then Trump’s call transcript, along with a lot of other evidence from the White House would become material to that prosecution. If Biden truly were taking a hands-off approach to prosecutions of Trump, he would not make the decision of whether to turn over this transcript (other stuff would not be covered by privilege and presumably would be handed over, including from State).

These will be the truly difficult decisions, not whether Biden gets notice now or in three months of what promises Trump made to Putin.

“Looking Forward” Will Be Harder for President Biden than It Was for President Obama

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NBC has a story that has caused a bit of panic, reporting that “Biden hopes to avoid divisive Trump investigations, preferring unity.”

The panic is overblown, given that the main point of the story is that Biden is hoping that DOJ will resume a more independent stance than that taken, especially, by Billy Barr.

Biden wants his Justice Department to function independently from the White House, aides said, and Biden isn’t going to tell federal law enforcement officials whom or what to investigate or not to investigate.

“His overarching view is that we need to move the country forward,” an adviser said. “But the most important thing on this is that he will not interfere with his Justice Department and not politicize his Justice Department.”

If there were to be investigations of Trump, everyone should want them to be completely insulated from the White House.

The story raises two more specific types of investigations which are both likely moot.

They said he has specifically told advisers that he is wary of federal tax investigations of Trump or of challenging any orders Trump may issue granting immunity to members of his staff before he leaves office. One adviser said Biden has made it clear that he “just wants to move on.”

Another Biden adviser said, “He’s going to be more oriented toward fixing the problems and moving forward than prosecuting them.”

New York state already has a tax investigation into Trump, so a federal one would be duplicative. And the pardon power is absolute; there’s little likelihood DOJ could investigate the pardons that Trump grants, because doing so would be constitutionally suspect.

All that said, attempting to move forward may not be as easy for President Biden as it was for President Obama.

That’s because there are a number of investigations that implicate Trump that are either pending (as of right now, but I don’t rule out Trump trying to kill them in the interim) or were shut down corruptly, to say nothing of the obstruction charges Mueller effectively recommended (which aforementioned pardons would renew, even in spite of DOJ’s declination prior to pardons). At a minimum, those include:

  • The Build the Wall fraud case against Steve Bannon and others that might, eventually, implicate the failson or his close buddies
  • The Igor Fruman and Lev Parnas graft which clearly implicates Rudy Giuliani and by all rights should always have included Trump’s extortion of Volodymyr Zelensky; given the timing of David Correia’s plea, it’s likely there will be grand jury testimony from him banked
  • Other foreign agent charges against Rudy
  • The investigation into Erik Prince for selling his private mercenary services to China
  • False statements charges against Ryan Zinke that Jeffrey Rosen attempted to kill
  • Various campaign finance and grift charges implicating Roger Stone, Paul Manafort, and Brad Parscale, to say nothing of the hush payments involving Trump personally
  • Possible hack-and-leak charges against Roger Stone from 2016, as well as the related pardon quid pro quo for Julian Assange implicating Trump himself
  • The possible aftermath of Judge Sullivan’s decisions in the Mike Flynn case, which could include perjury referrals or an invitation for DOJ to prosecute Flynn on the foreign agent charges he pled out of

All of these investigations still do or were known to exist, and if they no longer exist when Biden’s Attorney General arrives at DOJ, it will be because of improper interference from Barr.

The last of these might get particularly awkward given that multiple people at Billy Barr’s DOJ, possibly in conjunction with Sidney Powell and Trump campaign lawyer Jenna Ellis, altered documents to concoct a smear targeting Joe Biden in a false claim that he invented a rationale to investigate Flynn for undermining sanctions on Russia. You cannot have an independent DOJ if the people who weaponized it in such a way go unpunished. Except investigating such actions would immediately devolve into a partisan fight, particularly if Republicans retain control of the Senate. (This particular issue will most easily be addressed, and I suspect already is being addressed, via a DOJ IG investigation.)

Still, in the other cases, DOJ may need to decide what to do with investigations improperly closed by Barr, or what to do with investigations where just some of the defendants (such as Fruman and Bannon) get pardons.

And all this will undoubtedly play against the background of the confirmation battle for whomever Biden nominates. I would be shocked if Mitch McConnell (especially if he remains Majority Leader) didn’t demand certain promises before an Attorney General nominee got approved.

So none of this will be easy.

A far more interesting question will pertain to what President Biden does about the ICC investigation into US war crimes in Afghanistan, crimes that occurred during both the Bush and Obama Administrations. Mike Pompeo launched an indefensible assault against the ICC in an attempt to block this investigation, sanctioning ICC officials leading the investigation. Biden’s Secretary of State will have to decide whether to reverse those sanctions, effectively making a decision about whether to look forward to ignore crimes committed (in part) under Barack Obama.

Rudy Giuliani’s Actions Remain Under Investigation

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Update: This post explains why the premise of the post below is wrong. Because the George Nader referral was not revealed in the reprocessed report, we can be sure that DOJ is improperly claiming b7A redactions for investigations that have closed.

Last night, DOJ released a “reprocessed” Mueller Report in the BuzzFeed/CNN FOIA of it. (one, two, three)

I’m driving most of the day today, so probably won’t be able to comment on how little genuinely “new” it shows. But I stand by my prediction that the warrants in the Stone case are far more damning than anything released yesterday.

That said, given Billy Barr’s attempt to fire Geoff Berman as US Attorney for Southern District of New York, it’s worth noting the referrals portion of the report. That shows, among other things, that a referral from the Paul Manafort and Rick Gates influence-peddling — which could be Rudy’s grifters — is still redacted as an ongoing investigation.

In addition — as Katelyn Polantz noted on Twitter — the references to Rudy’s attempts to broker a pardon for Michael Cohen remain redacted.

SDNY is due to supersede the indictment for Rudy’s grifters, and we know from the Schulte case there is a working grand jury (albeit in White Plains, not Manhattan). So Rudy may well be in Berman’s crosshairs.

 

Lev Parnas’ Co-Defendant David Correia Tests the Send-Your-Phone Border Exception Work-Around

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As much of a splash as Lev Parnas made during the Trump impeachment, his co-defendants are each mounting more intriguing defenses.

In the case of David Correia — who was charged in the marijuana side of the indictment — that includes an attempt to bypass the border exception (which allows authorities to search anything carried on your person through customs) by sending his attorney an iPhone, a Microsoft Surface Pro, a hard drive, and two notebooks he had with him before he returned to the United States to be arrested in October.

Are devices sent from overseas to an attorney covered by attorney-client privilege?

The issue first became public in March, when the government asked Judge Paul Oetken to order Correia’s lawyers, William Harrington and Jeff Marcus, to file a privilege claim over the package by March 23 (the government has been holding off accessing the evidence from the devices awaiting such claims). In a letter claiming that March 23 deadline was unrealistic given the COVID crisis, Correia’s lawyers claimed the government had totally misrepresented the attorney-client claim (and complained that the government had neither informed Correia right away about the seizure in October nor raised this issue at a status conference in February). With the government’s consent, Oetken gave Correia an extension.

Ultimately, Correia argued that he had sent the materials, “for the purpose of seeking legal advice,” The filing argued that because the FBI had ample notice that Marcus represented Correia (Correia lawyered up by August), and because Marcus negotiated a self-surrender upon Correia’s return from abroad, the government had to recognize that the DHL package was privileged when they obtained it. Correia further argued that because the notebooks include information that was clearly intended to solicit advice, the entire package must be privileged (that argument, however, was utterly silent about the devices). The lawyers also note that Correia did not send all the papers he had with him, which they point to as proof that the documents — to include the devices — that he did send were a selection specifically intended to get advice.

The government just submitted its response (note that one of the lawyers on this case, Nicholas Roos, also took part in the privilege fight over Michael Cohen’s devices). In it, they reveal that a privilege team reviewed the notebooks, after which prosecutors sent scanned copies of the notebooks and asked Correia’s lawyers to assert any privilege claims by January 20.

In the course of reviewing these materials for privileged information, the Government’s filter team identified items that potentially could be privileged. Accordingly, those items were withheld from the prosecution team and were redacted from the materials that are being produced in discovery. Since the filter team identified those items as only potentially privileged because the records do not contain adequate information to make a definitive assessment, the filter team will be providing the unredacted materials to you. If you believe any of the items that were redacted, or any other items, are privileged, please so indicate by January 20, 2020, and provide the factual basis for such a privilege assertion to the filter team. After that date, the materials in their unredacted form will be released to the prosecution team and produced in discovery.

After receiving that, Correia first claimed that everything in the package, including the devices, was privileged.

The government, however, cites Second Circuit and SDNY precedent holding that materials pre-existing attorney-client communications are not privileged.

Indeed, as the Second Circuit held nearly sixty years ago—rejecting a claim that the attorney-client privilege applied to various documents provided by a client to his counsel—“the attorney-client privilege protects only those papers prepared by the client for the purpose of confidential communication to the attorney or by the attorney to record confidential communications,” but “pre-existing documents and . . . records not prepared by the [client] for the purpose of communicating with their lawyers in confidence . . . acquired no special protection from the simple fact of being turned over to an attorney.” Colton v. United States, 306 F.2d 633, 639 (2d Cir. 1962); see also United States v. Walker, 243 F. App’x 261, 623-24 (2d Cir. 2007) (“putting otherwise non-privileged business records . . . in the hands of an attorney . . . does not render the documents privileged or work product (citing Ratliff v. Davis Polk & Wardwell, 354 F.3d 165, 170-71 (2d Cir. 2004))).

And it argues that they should be able to access anything pre-existing that is not privileged (the filter team continues to review the content of the devices).

The FBI’s preliminary analysis indicates that Correia’s hard drive contains tens of thousands of documents, images, and audio and video files; his iPhone contains tens of thousands of documents, images, and audio and video files, as well as other data such as internet browsing history and location information; and his Suface Pro computer contains hundreds of thousands of documents, images, and audio and video files. It is undisputed that these materials, as well as his notebooks, existed prior to Correia’s communications with counsel on this case. They were not, in toto, created at the direction or advice of counsel, and did not become privileged merely because Correia sought to send them to his counsel.

The government rejects Correia’s argument that by accessing the files, the government learned about what selection of materials Correia was seeking counsel. It argues that nothing in the package reflected instructions from Marcus to Correia (there was no note included at all), and the  government first learned that the selection of items in the package ended up there based on Marcus’ advice from Correia’s own filing.

Correia erroneously claims that by intercepting the DHL package, the Government learned what materials counsel had advised Correia to collect. On the contrary, the DHL package contained no such communication. The Government “learned” that fact—assuming it is true— only through counsel’s briefing on this motion. In any event, it is simply false to suggest that the DHL package contained a carefully curated selection of relevant documents. It contained the opposite: the entirety of Correia’s multiple devices and notebooks, with no indication as to what particular documents or portions of documents may be relevant. The seizure of those materials revealed nothing about counsel’s “defense planning” (Mot. 13)

[snip]

As counsel is well aware, the Government’s assumption had been that Correia simply sent his devices and notebooks to counsel so that they would not be in his possession and subject to seizure when he was arrested.

While the government doesn’t address the documents Correia had on his person on his arrest, they describe that he had no devices at all, just the charging cords for them.

Although Correia still had a phone case, multiple phone chargers, and charging cords with him, he did not have a single electronic device on his person.

Given how often InfoSec people have argued that this method — sending your lawyer sensitive devices before crossing a border — is the best way to protect them, the resolution of this issue has some wider legal interest.

But in this case, the resolution likely comes down to the fact that prosecutors told Judge Oetken, when getting a warrant for the DHL package, that it was sent from Correia to his lawyer.

This Court, based upon an affidavit that made clear the DHL package was sent by Correia to his counsel, found probable cause to believe that the package and its contents contained evidence, fruits, and instrumentalities of federal crimes.

[snip]

On or about October 21, 2019, the Court signed a search warrant authorizing the Government to search a package sent via DHL from Correia to his counsel (the “DHL Package Warrant”). The supporting affidavit explained the following, among other things: On October 9, 2019—the same day that Lev Parnas and Igor Fruman were arrested—agents with the Federal Bureau of Investigation (“FBI”) attempted to arrest Correia at his home, but learned from his wife that Correia was out of the country. Shortly thereafter, Jeff Marcus, Esq., contacted the FBI, identifying himself as Correia’s counsel. Counsel arranged for Correia to fly into New York on October 14, 2019, arriving on October 15, 2019, in order to surrender. Counsel confirmed that Correia was aware that he would be arrested by the FBI upon landing in the United States.1 On October 14, 2019, however, counsel advised the FBI that Correia had left his passport at a DHL store, where he was mailing something before flying back to the United States, and could not board the plane without his passport.

[snip]

The affidavit in support of the DHL Package Warrant further stated that “materials obtained from DHL” reflected that Correia had mailed the DHL package to his counsel. The affidavit noted that the package’s listed contents—provided by the sender, Correia—apparently included a phone, tablet, and hard drive, which “do not appear to be items that were created for the purpose of legal advice but rather appear to have been sent by mail so that they would not be on Correia’s person when he arrived in the United States to be arrested.” The affidavit stated that the Government would nonetheless “utilize a filter review process, including through the use of a filter team comprised of agents and prosecutors who are not part of the prosecution team, for review of the [DHL package and its contents].”

That is, Oetken has already weighed in on this matter, and the government has provided a good deal of Second Circuit and SDNY precedent far more on point than a single Fifth Circuit case, United States v. Hankins, that Correia relies on. One key detail seems to distinguish this seizure and search from any garden variety attempt to bypass the border exception: Correia knew he was going to be arrested when he landed, meaning he knew he was trying to defeat not just the border exception, but a search warrant for anything on his person.

Where did the seizure happen and under what legal authority?

All that said, there’s a detail that, while it probably doesn’t affect the legal argument, raises questions about how and when the government seized the package. As noted, Correia sent the package from a DHL office in whatever country he was in (he was somewhere in the Middle East, and wherever it is, flights to JFK all seem to involve red eyes). He left his passport at that office, so he was unable to board his scheduled flight on October 14. In explaining the one day delay in Correia’s self-surrender, Marcus unwisely told prosecutors that DHL was involved and only in later communications revised his explanation to say Correia had left his passport in a “local” store. It’s unclear whether the government seized the package in that foreign country or as it entered the US. Nor is it clear — from the scant details of the affidavit included in the government filing — whether the government had, or needed, a warrant to make that seizure. However they seized it, Correia is not challenging the legal sufficiency of the seizure itself on any but privilege grounds (though he may file suppression motions in May).

As Correia described it, when the package never arrived at Marcus’ office, they asked DHL where it had gone, and DHL ultimately claimed to have lost it.

In the following days, Mr. Marcus’s law firm never received the communication sent by Mr. Correia via DHL. Id., at ¶ 20. Mr. Correia made repeated inquiries to DHL about its status but was told several times that it was “lost” in transit and DHL was taking steps to locate the sent package. Id. Finally, on October 29, 2019, DHL informed Mr. Correia that “[a]fter conducting extensive searches of our Service Centers, including warehouses, docks, vehicles and lost and found facilities, we have not been able to locate your shipment.” Id. They also said they were ending their search.

DHL was either obeying a gag, or seem not to have received process from the government that would show up in their files.

So unbeknownst to Correia, the government somehow seized the package, and on October 21 (a week after Correia sent it), got Judge Oetken to approve a warrant to search the package and the devices in it.

Correia only learned details of what happened, serially, between December and January.

After a December 2019 court conference, the defense team learned that the Government said it was in possession of the telephone that Mr. Correia had sent to his lawyers via DHL. Id., at ¶ 21. The defense team also subsequently received a search warrant which indicated that the Government had intercepted and searched Mr. Correia’s communication to Mr. Marcus. Id., at ¶ 22. In a production letter dated January 10, 2020, the Government produced an agent’s inventory of Mr. Correia’s communication to Mr. Marcus which included two notebooks, a hard drive, a computer and a telephone.

The most likely answer, however, is that the government obtained the package with DHL’s assistance, which is not legally surprising, but something worth noting for those attempting to use this method to bypass border exceptions.

The pending superseding indictment

The government has said in past hearings that it plans to obtain a superseding indictment before May. Given how COVID has affected all legal proceedings, including grand juries, that likely will be delayed. But it seems clear that the government wants to obtain this information before that happens.

DOJ’s Ukraine Fire Sale: The Jerry Nadler Questions Bill Barr Didn’t Answer

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Yesterday, Natasha Bertrand posted a January 17, 2020 memo issued by Deputy Attorney General Jeffrey Rosen, which was cited in a response DOJ sent to a letter Jerry Nadler sent on February 10. In it, Assistant Attorney General for Legislative Affairs Stephen Boyd explained that — in addition to asking Scott Brady to manage intake of any disinformation Rudy Giuliani provides DOJ, Rosen “assigned Richard Donoghue, the U.S. Attorney for the Eastern District of New York, to assist in coordinating … several open matters being handled by different U.S. Attorney’s Offices and Department components that in some way potentially relate to Ukraine.”

Add Donoghue to the list of US Attorneys that Attorney General Barr has deployed in his effort to politicize the Department.

Because the Donoghue Ukraine news (and the suggestion that Donoghue may be overseeing an investigation into the Bidens) got so much attention, there has been little attention to the questions Nadler originally asked, most of which Boyd did not answer.

But those questions are perhaps more telling.

For starters, Bill Barr did not answer whether he intends to recuse himself from the Ukrainian grifter case.

In light of the allegations by Mr. Parnas against the Department and you personally, do you intend to recuse yourself from any and all communications relating to Ukraine? Have you done so already?

In addition, Barr did not answer several questions about communications between DOJ, Rudy, and the White House:

(8) Please state the dates of any communications between the Department and Mr. Giuliani regarding information relating to Ukraine or investigations of the Bidens. Please state who else, if anyone, participated in those communications.

(9) Has the Department shared any information it has received from Mr. Giuliani with President Trump or any other White House official? If so, please state the dates of any such communications, the participants in any such communications, and the nature of the information conveyed to the White House.

(10) Have you discussed the intake process with President Trump or any other White House official? If so, please state the dates of any such communications, the participants in any such communications, and the nature of the discussion.

The only answer Boyd gives to any of these questions effectively repeats DOJ’s September 25, 2019 press answer.

Finally, your letter poses questions regarding a September 25, 2019 press statement by the Department. That statement remains accurate. As Attorney General Barr has repeatedly affirmed, he has not discussed matters relating to Ukraine with Rudolph Giuliani.

In short, Bill Barr refused to answer a specific question about whether he should recuse from an investigation into which he has been personally implicated. And DOJ refused to explain precisely what kind of communications there have been between Rudy, DOJ, and the White House.

The Size of Bill Barr’s Cover-Up Hints at the Magnitude of What He’s Covering Up

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After the Tuesday Afternoon Massacre — where four prosecutors withdrew from the Roger Stone case rather than be party to Bill Barr interfering in the prosecution of Trump’s rat-fucker — we learned on Friday that Bill Barr had deployed a third US Attorney — Saint Louis’ Jeffrey Jensen — to the DC US Attorney’s office as part of an elaborate cover-up for Trump’s crimes. I’m going to attempt to lay out the full scope of Barr’s attempted cover-up. This post will serve as an overview and I will update it with links to the known or suspected evidence and crimes that Barr is covering up. I’m not including efforts to launch or sustain investigations into those Trump perceives to be his enemies.

The cover-up has the following aspects:

Interim US Attorneys oversee investigations implicating Trump’s actions

Geoffrey Berman, Southern District of New York: For the most part, Berman seems to have operated independently after his appointment as US Attorney for SDNY, but there are recent concerns that investigations implicating Trump have been stymied:

  • Hush payments: After getting Michael Cohen to plead guilty to covering up Trump’s past sex partners during the election and obtaining testimony from National Enquirer, the investigation closed with no further charges on or before July 17, 2019.
  • Ukrainian grifters: There are conflicting stories about the scope of the investigation into Ukrainian grifters Lev Parnas and Igor Fruman, particularly with regards to how seriously SDNY is considering charges against Rudy Giuliani. WaPo reported steps taken implicating Rudy’s activities on February 14, 2020. But Parnas has insinuated that his sudden arrest on October 9 was an attempt to keep him silent; Barr visited SDNY that day and subsequently visited Rupert Murdoch at his home. SDNY showed unusual concern for the privacy of third parties as Parnas tried to share more information with the House Intelligence Committee. And Bill Barr has not recused in spite of a clear conflict and a request from Parnas.
  • Halkbank: Barr tried to pre-empt an indictment of Turkey’s Halkbank with a settlement.

Timothy Shea, District of Columbia: While Berman worked for several years without any show of corruption, that’s not true of Timothy Shea, a trusted Barr aide. The very first day he started work — having been installed by Barr with just a day’s notice — he started questioning the guidelines sentence of Roger Stone, who has promised to remain silent about details of Trump’s involvement in his efforts to optimize the release of emails stolen by Russian. Then, Shea worked with Bill Barr to reverse the guidelines sentence recommended by career prosecutors. In addition, Shea’s appointment coincided with the start of a “review” of other prosecutions and investigations of Trump associates in DC including, but not limited to, Mike Flynn and Erik Prince.

Confirmed US Attorneys “review” investigations into Trump and his associates

John Durham, Connecticut: In May 2019, Barr ordered John Durham to conduct an investigation into the origins of the Crossfire Hurricane investigation of Trump associates’ ties to Russia. He predicated the investigation, explicitly, on the absence of evidence. In clear contrast to the Mueller investigation, DOJ has produced no documentation regarding the scope of the investigation (including whether Durham could pursue crimes by Trump’s associates or even Barr himself if he found evidence of a crime), and Barr has remained personally involved, completely negating the entire point of appointing a US Attorney to conduct the investigation. Republicans have described the point of this investigation as an effort to discredit the Mueller investigation. It has included the following:

  • Bill Barr’s worldwide tour chasing the hoaxes rolled out through George Papadopoulos via the right wing echo chamber
  • Some disinformation likely fed via Rudy
  • The legitimate criminal investigation of FBI Attorney Kevin Clinesmith, the actual venue for which should be Washington DC
  • CIA’s 2016 determination — confirmed by more recent intelligence collection and reviewed approvingly by the Senate Intelligence Committee — that Russia not only wanted to hurt Hillary, but help Trump in the 2016 election
  • Communications between John Brennan and Jim Comey and Andrew McCabe

Jeffrey Jensen, Eastern District of Missouri: The “review” Jeffrey Jensen is conducting of DC US Attorney cases seems to couple with Durham’s investigation. It reportedly is second-guessing decisions made by prosecutors on the Mike Flynn and Erik Prince investigation, as well as other non-public investigations. The review is almost certainly assessing rumors started by known propagandists that have already been investigated three times, including by FBI’s Inspection Division, rumors already reviewed and dismissed in a meticulous 92-page opinion from Emmet Sullivan. This “review” seems to have been part of the installment of Shea at DC and may amount to an attempt to thwart investigations that Jessie Liu let proceed without political interference.

DOJ diverts disinformation from Rudy Giuliani to another confirmed US Attorneys

In recent weeks, Barr has appointed Scott Brady, US Attorney for Western District of Pennsylvania, to vet incoming information from Rudy’s foreign influence peddling in Ukraine. It’s unclear whether Barr did this to try to make something out of that disinformation, or to prevent evidence that might support foreign influence peddling charges against Rudy from getting to prosecutors in SDNY.

Richard Donoghue, Eastern District of New York: Donoghue is apparently “handling certain Ukraine-related matters.” In connection to that, Jeffrey Rosen put Donoghue in charge of coordinating all investigations that pertain to Ukraine,

to avoid duplication of efforts across Offices and components, to obviate the need for deconfliction at a later stage of potentially overlapping investigations, and to efficiently marshal the resources of the Department to address the appropriate handling of potentially relevant new information.

That in and of itself is not problematic. But by putting Jensen in charge of intake, presumably before it gets to Donoghue, Rosen has ensured that information that — because it is disinformation — would be incriminating to Rudy, not Joe Biden (or anyone else).

DOJ prevents full investigation of Ukraine complaint

Barr and his DOJ engaged in multiple acts of obstruction of the Ukraine complaint. First, Barr did not recuse from a complaint mentioning him by name. Then (knowing that Barr was personally implicated), DOJ did not conduct a full assessment of the whistleblower complaint, which would have identified a tie to the SDNY investigation of Lev Parnas and Igor Fruman. Then OLC invented an excuse not to share whistleblower complaint with Congress, which resulted in a significant delay and almost led Ukraine to make concessions to obtain aid. Then, DOJ did not share whistleblower complaint with FEC as required by Memorandum of Notification. Finally, DOJ made a comment claiming Trump was exonerated, precisely the abuse — speaking about ongoing investigations — that Jim Comey got fired for.

The Slow Firing of Robert Mueller[‘s Replacement]

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On December 5, I suggested that Speaker Pelosi delay the full House vote on impeachment until early February. I intimated there were public reasons — the possibility of a ruling on the Don McGahn subpoena and superseding charges for Lev Parnas — I thought so and private ones. One of the ones I did not share was the Stone sentencing, which at that point was scheduled for February 6. Had Pelosi listened to me (!!!) and had events proceeded as scheduled, Stone would have been sentenced before the final vote on Trump’s impeachment.

But things didn’t work out that way. Not only didn’t Pelosi heed my suggestion (unsurprisingly), but two things happened in the interim.

First, Stone invented a bullshit reason for delay on December 19, the day after the full House voted on impeachment. The prosecutors who all resigned from the case yesterday objected to the delay, to no avail, which is how sentencing got scheduled for February 20 rather than the day after the Senate voted to acquit.

Then, on January 6, Trump nominated Jessie Liu, then the US Attorney for DC, to be Undersecretary for Terrorism and Financial Crimes, basically the person who oversees the process of tracking criminal flows of finance. She won’t get that position — her nomination was pulled yesterday in advance of a Thursday confirmation hearing. But her nomination gave Barr the excuse to install a trusted aide, Timothy Shea, at US Attorney for DC last Thursday, the day after the impeachment vote and in advance of the now-delayed Stone sentencing.

Liu, who is very conservative and a true Trump supporter, had been nominated for a more obvious promotion before. On March 5, Trump nominated her to be Associate Attorney General, the number 3 ranking person at DOJ. But then she pulled her nomination on March 28 because Senators objected to her views on choice.

But let’s go back, to late August 2018. Michael Cohen and Sam Patten had just pled guilty, and Cohen was trying to find a way to sort of cooperate. Rudy Giuliani was talking about how Robert Mueller would need to shut down his investigation starting on September 1, because of the election. I wrote a post noting that, while Randy Credico’s imminent grand jury appearance suggested Mueller might be close to finishing an indictment of Stone, they still had to wait for Andrew Miller’s testimony.

Even as a I wrote it, Jay Sekulow was reaching out to Jerome Corsi to include him in the Joint Defense Agreement.

During the entire election season, both Paul Manafort and Jerome Corsi were stalling, lying to prosecutors while reporting back to Trump what they were doing.

Then, the day after the election, Trump fired Jeff Sessions and installed Matt Whitaker. Whitaker, not Rosenstein, became the nominal supervisor of the Mueller investigation. Not long after, both Manafort and Corsi made their game clear. They hadn’t been cooperating, they had been stalling to get past the time when Trump could start the process of ending the Mueller investigation.

But Whitaker only reactively kept Mueller in check. After Michael Cohen’s December sentencing made it clear that Trump was an unindicted co-conspirator in a plot to cheat to win, Whitaker started policing any statement that implicated Trump. By the time Roger Stone was indicted on January 24, 2019 — after Trump’s plan to replace Whitaker with the expert in cover ups, Bill Barr — Mueller no longer noted when Trump was personally involved, as he was in Stone’s efforts to optimize the WikiLeaks releases.

But then, when Barr came in, everything started to shut down. Mueller moved ongoing prosecutions to other offices, largely to DC, under Jessie Liu’s supervision. As Barr came to understand where the investigation might head, he tried to promote Liu out of that position, only to have GOP ideology prevent it.

Barr successfully dampened the impeach of the Mueller Report, pretending that it didn’t provide clear basis for impeaching the President. It was immediately clear, when he did that, that Barr was spinning the Stone charges to minimize the damage on Trump. But Barr did not remove Mueller right away, and the Special Counsel remained up until literally the moment when he secured Andrew Miller’s testimony on May 29.

The next day, I noted the import of raising the stakes for Trump on any Roger Stone pardon, because Stone implicated him personally. That was more important, I argued, than impeaching Trump for past actions to try to fire Mueller, which Democrats were focused on with their attempt to obtain Don McGahn’s testimony.

Still, those ongoing investigations continued under Jessie Liu, and Stone inched along towards trial, even as Trump leveraged taxpayer dollars to try to establish an excuse to pardon Manafort (and, possibly, to pay off the debts Manafort incurred during the 2016 election). As Stone’s trial laid out evidence that the President was personally involved in optimizing the release of emails Russia had stolen from Trump’s opponent, attention was instead focused on impeachment, his more recent effort to cheat.

In Stone’s trial, he invented a new lie: both Randy Credico and Jerome Corsi had falsely led him to believe they had a tie to WikiLeaks. That didn’t help Stone avoid conviction: Stone was found guilty on all counts. But it gave Stone yet another cover story to avoid revealing what his ties to WikiLeaks actually were and what he did — probably with Trump’s assent — to get it. For some reason, prosecutors decided not to reveal what they were otherwise prepared to: what Stone had really done.

Immediately after his conviction, Stone spent the weekend lobbying for a pardon. His wife appeared on Tucker Carlson’s show and someone got inside White House gates to make the case.

But, as impeachment proceeded, nothing happened, as the Probation Office started collecting information to argue that Stone should go to prison for a long while. The day Democrats finished their case against Donald Trump, though, Bill Barr made his move, replacing Liu before she was confirmed, removing a very conservative Senate confirmed US Attorney to install his flunkie, Timothy Shea. But even that wasn’t enough. Prosecutors successfully convinced Shea that they should stick to the probation office guidelines recommending a stiff sentence. When Timothy Shea didn’t do what Barr expected him to, Barr intervened and very publicly ordered up the cover up he had promised.

Effectively, Bill Barr is micro-managing the DC US Attorney’s office now, overseeing the sentencing of the man who could explain just how involved Trump was in the effort to maximize the advantage Trump got from Russia’s interference in 2016, as well as all the other prosecutions that we don’t know about.

Trump has, finally, succeeded in firing the person who oversaw the investigations into his role in the Russian operation in 2016. Just as Stone was about to have reason to explain what that role was.

Timeline

August 21, 2018: Michael Cohen pleads guilty

August 31, 2018: Sam Patten pleads guilty

September 5, 2018: Jay Sekulow reaches out to Corsi lawyer to enter into Joint Defense Agreement

September 6, 2018: In first Mueller interview, Corsi lies

September 17, 2018: In second interview, Corsi invents story about how he learned of Podesta emails

September 21, 2018: In third interview, Corsi confesses to establishing a cover story about Podesta’s emails with Roger Stone starting on August 30, 2016; NYT publishes irresponsible story that almost leads to Rod Rosenstein’s firing

October 25, 2018: Rick Gates interviewed about the campaign knowledge of Podesta emails

October 26, 2018: Steve Bannon admits he spoke with Stone about WikiLeaks

October 31, 2018: Prosecutors probably show Corsi evidence proving he lied about source of knowledge on Podesta emails

November 1 and 2, 2018: Corsi continues to spew bullshit in interviews

November 6, 2018: Election day

November 7, 2018: Jeff Sessions is fired; Matt Whitaker named Acting Attorney General

November 9, 2018: Corsi appears before grand jury but gives a false story about how he learned of Podesta emails; Mueller threatens to charge him with perjury

November 15, 2018: Trump tweets bullshit about Corsi’s testimony being coerced

November 23, 2018: Corsi tells the world he is in plea negotiations

November 26, 2018: Corsi rejects plea

December 7, 2018: Trump nominates Bill Barr Attorney General

January 18, 2019: Steve Bannon testifies to the grand jury (and for the first time enters into a proffer)

January 24, 2019: Roger Stone indicted for covering up what really happened with WikiLeaks

February 14, 2019: Bill Barr confirmed as Attorney General

March 5, 2019: Jessie Liu nominated to AAG; Bill Barr briefed on Mueller investigation

March 22, 2019: Mueller announces the end of his investigation

March 24, 2019: Bill Barr releases totally misleading version of Mueller results, downplaying Stone role

March 28, 2019: Liu pulls her nomination from AAG

April 19, 2019: Mueller Report released with Stone details redacted

May 29, 2019: As Mueller gives final press conference, Andrew Miller testifies before grand jury

November 12, 2019: Prosecutors apparently change Stone trial strategy, withhold details of Stone’s actual back channel

November 15, 2019: Roger Stone convicted on all counts

January 6, 2020: Jessie Liu nominated to Treasury

January 16, 2020: Probation Office issues Presentence Report calling for 7-9 years

January 30, 2020: Bill Barr replaces Liu with Timothy Barr, effective February 3; DOJ submits objection to Presentence Report

February 3, 2020: Timothy Shea becomes acting US Attorney

February 5, 2020 : Senate votes to acquit Trump

February 6, 2020: Initial sentencing date for Roger Stone

February 10, 2020: Stone sentencing memoranda submitted

February 11, 2020: DOJ overrules DC on Stone sentencing memorandum, all four prosecutors resign from case

February 20, 2020: Current sentencing date for Roger Stone

Bill Barr Commits the Bruce Ohr “Crime”

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Far be it for me to ever underestimate the possibility of Bill Barr nefariousness (and I’ll almost certainly have to eat these words), but I’m far less concerned about what Barr said the other day about a process to ingest Ukrainian bullshit from Rudy Giuliani than virtually everyone else. That’s because in his comments from the other day, he emphasized the import of vetting information from Ukraine, whether it comes from Rudy Giuliani or anyone else.

We have to be very careful with respect to any information coming from the [sic] Ukraine. There are a lot of agendas in the [sic] Ukraine, there are a lot of cross-currents, and we can’t take anything we receive from the [sic] Ukraine at face value. And for that reason we had established an intake process in the field so that any information coming in about Ukraine could be carefully scrutinized by the department and its intelligence community partners so that we could assess its provenance and its credibility. That is true for all information that comes to the Department relating to the [sic] Ukraine including anything Mr. Giuliani might provide.

This sounds like the kind of thing you’d do to placate your boss even while ensuring DOJ doesn’t accept a bunch of disinformation manufactured by mobbed up oligarchs to mess with America.

The WaPo’s report that Barr is sending all this to the US Attorney in Pittsburgh suggests Barr neither wants this stuff in Main DOJ but also is not sending it to either of the two places — John Durham’s inquiry or the SDNY prosecution of the Ukrainian grifters — where it might be used in an ongoing investigation.

A Justice Department official said Giuliani had “recently” shared information with federal law enforcement officials through the process described by Barr. Two people familiar with the matter said the information is being routed to the U.S. attorney’s office in Pittsburgh.

[snip]

It is not clear whether Scott W. Brady, the U.S. attorney in Pittsburgh, will play a similar role, or why his office was chosen. A spokeswoman for Brady’s office declined to comment.

So while I hope (again, probably over-optimistically) that this is just a convenient way to deal with a difficult boss and his criminal subject attorney, I also worry that it’s not being shared with the people investigating such information sharing as illegal foreign influence peddling.

Plus, it strikes me as a unbelievably hypocritical for Bill Barr to continue to ingest dodgy information probably sourced to corrupt oligarchs after the entire frothy right has demonized Bruce Ohr for continuing to accept information — some but not all of it sourced to Oleg Deripaska — from Christopher Steele.

Admittedly, no one can complain about the basis for which DOJ’s Inspector General relied on to make a completely irresponsible attack on Ohr — that he didn’t inform his superiors (even though they had, in fact, been informed). Barr is the boss! He has chosen who should deal with this information, in a way that Sally Yates and Rod Rosenstein did not.

But Barr is, nevertheless, doing what the frothy right complains that Ohr did: continue to accept problematic information — deemed partisan (inaccurately in the case of Ohr, because his information sharing with Steele long preceded the DNC project and much of what he shared during and after that involved entirely unrelated topics) — after it had been discredited.

Perhaps, along with issuing orders that suggest Trump can commit any crime he wants between now and November 2020, Barr should issue an order explaining how DOJ should accept such information — including manufactured dirt from Steve Bannon — as a rule, so we can stop working under different rules for different parties.

The Manafort Link Sets the Fruman-Parnas Timeline Back — But the Manafort Timeline Is Earlier Too

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The Daily Beast reports that Lev Parnas has linked Igor Fruman and Paul Manafort going back years.

Rudy Giuliani ally Igor Fruman and ex-Trump campaign chief Paul Manafort have been friendly for years, two sources familiar with their relationship tell The Daily Beast.

And that relationship — stretching from New York to London to Kyiv — long predated Rudy Giuliani’s wide-ranging attempts to discredit the evidence that played a key role in kicking off Manafort’s political downfall and eventual incarceration.

Joseph Bondy, the lawyer for Fruman associate Lev Parnas, said Manafort and Fruman were friendly for years before their respective indictments.

A friend of Manafort’s, who spoke anonymously to discuss non-public matters, confirmed that Fruman and Manafort have known each other for years. He said Fruman invited Manafort to the opening party for Buddha-Bar in Kyiv many years ago, and that the two men have discussed business. Buddha-Bar opened in the summer of 2008. Bondy said the pair also spent time together in London and New York.

It suggests, but does not say outright, that the Ukrainian grifters’ initial work served to put together the counter-report that Rudy Giuliani planned to release to combat the Mueller Report.

In late 2018, as the Mueller investigation was drawing to a close, Giuliani and his allies worked to draft a counter-report that would rebut Mueller’s work. (Manafort was one of the first targets of Mueller’s probe, and was convicted of multiple charges related to work he did in Ukraine for a Russia-friendly political party.) Giuliani never released that report. But he also didn’t toss it; he told The Daily Beast in October that materials he gave the State Department came from his effort to find information in Ukraine that could exonerate Trump.

[snip]

In other words, Giuliani’s efforts to undermine the Mueller probe—and stand up for Manafort—led directly to his Biden dirt-digging endeavors. Parnas has said he and Fruman were right there to help.

This report explains a great deal about the story we’ve got. It explains why Lev Parnas was badmouthing Marie Yovanovitch long before (he claims) Trump flunkies’ attacks on her led him to adopt that line. It explains why Kevin Downing was on the Joint Defense team for the Ukrainian grifters. It basically extends the narrative about the grifters back to 2018, when SDNY started it.

Except the story TDB tells still starts the narrative too late in time.

It suggests that the reason Rudy started chasing propaganda in Ukraine is because Paul Manafort’s life started falling apart after news of his inclusion in the Black Ledger got published on August 14, 2016.

Relations with Ukraine have shadowed Trump and his allies even before he was elected president. On August 14, 2016, The New York Times reported that Manafort may have received millions of dollars in “illegal, off-the-books” cash from the pro-Russia political party he worked for. The story was a body blow to Manafort, who left Trump’s campaign five days after it was published. Serhiy Leshchenko, then a Ukrainian parliamentarian, played an instrumental role in the black ledger.

In the years after the publication of the story, Manafort’s life fell apart. Nine months after Trump’s inauguration, he was arrested and charged with a host of crimes. By March 2019, he had been sentenced to a seven-year prison term. He and his allies blamed the black ledger for starting the calamity. And given that Leshchenko was a government official when he shared the documents, Trump’s allies have said their release was an example of election meddling by Kyiv. Parnas told The Daily Beast that Giuliani tried to push Leshchenko away from Zelensky; Giuliani himself has called him an enemy of the United States.

Giuliani has said his scrutiny of the black ledger fed directly into his focus on the Bidens.

That’s certainly the story that Manafort would like to tell — and one that likely is palatable for Parnas. In that story, his grift is exclusively about finding propaganda that is useful to the President, and he can point back to the President as the agent behind his actions.

Except Manafort’s life was going to shit before that, and the grifters were active before they could have been writing a counter-report.

Manafort’s life started going to shit when Viktor Yanukovych was ousted from Ukraine. He lost his main clients and had both the debt from his own lavish lifestyle but also the $20 million that Oleg Deripaska said Manafort had bilked him out of. By January 2016, DOJ was already investigating him for money laundering. By March, according to Rick Gates, he was effectively broke.

That’s when he signed up to work for Donald Trump for “free.”

During the entire time he worked for Trump, Deripaska was using Christopher Steele to encourage the criminal investigation into Manafort, even while enticing Manafort with the hope of “making him whole” by performing some unspecified services — effectively making Manafort (and by association, Trump) more vulnerable for the moment he’d move in for the kill. Two months before the Black Ledger was publicly released, Manafort knew he was on it. And before the Black Ledger story broke, Manafort took a meeting with Konstantin Kilimnik, who had promised a scheme to return Yanukovych to a position where he could turn on Manafort’s gravy train again. It’s still unclear what happened at the meeting, but it’s clear winning the Rust Belt, carving up Ukraine, and getting paid all came up. Eight days later, Manafort booked $2.4 million — deliverable in November — suggesting he believed that that meeting did lead to him getting paid. And until the time Manafort landed in prison, he took actions in accordance with the plan to carve up Ukraine in that August 2, 2016 meeting.

That’s the background to the Black Ledger release. And that’s the reason Manafort needs some story, however bogus, to justify a pardon.

Moreover, the grifters’ timing dates to April 2018, about the time Ukraine purchased some Javelins and stopped cooperating with Mueller, which probably explains why a guy working for Raytheon’s lobbyist, Kurt Voker, was perceived to be working on Manafort’s defense.

Manafort doesn’t (just) need a story that can justify a Trump pardon. He needs a way to prevent the rest of this story from coming out.

SDNY Prosecutors Protect Trump’s Privacy to Enter into a Joint Defense Agreement with the Russian Mob

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Whooboy is there an interesting flurry of motions over in the Ukrainian grifter prosecution. Effectively, SDNY prosecutors and (two of) Lev Parnas’ co-defendants want to slow him from sharing information with HPSCI. The letters include:

  • January 17: Parnas asks to modify the protective order a third time
  • January 22: Igor Fruman lawyer Todd Blanche says he has an attorney-client interest in some of what Parnas wants to and has already shared
  • January 22: Andrey Kukushkin lawyer Gerald Lefcourt says he just wants a privilege review
  • January 23: SDNY says Parnas should not be able to share iCloud information he obtained via discovery without review
  • January 24: Parnas lawyer Joseph Bondy makes a quick argument asserting they should be able to share the information
  • January 24: Bondy responds to Fruman letter at more length
  • January 27: Blanche responds again, invoking Dmitry Firtash to speak on behalf of unnamed others

The dispute started when Parnas asked to share content that the FBI seized from Parnas’ iCloud account and then provided to him in discovery. He listed just 11 Bates stamp numbers in the initial request, but it’s unclear what kind of files these are. In response, the lawyer that Fruman shares with Paul Manafort, Todd Blanche, objected to that request, and also asked to “claw back” any privileged materials that Parnas already produced to HPSCI (remember that Victoria Toensing has already complained that Parnas has violated privilege). Blanche makes a dig at Parnas’ media tour:

My obvious concern is that Mr. Bondy’s hasty efforts to find a forum (beyond MSNBC and CNN) for someone —  anyone — to listen to his client’s version of events caused him to irresponsibly produce privileged materials to the HPSCI.

One of the two other co-defendants, Andrey Kukushkin, weighed in — having been alerted by SDNY that, “its filter team identified materials in Mr. Parnas’ iCloud account that may fall within a common-interest attorney-client privilege held jointly by Mssrs. Kukushkin, Parnas, and aothers” — and stated that he did not object to Parnas sharing information “if all privileged materials can be removed from Mr. Parnas’ iCloud account prior to production to HPSCI.”

Having thus cued Parnas’ co-defendants to submit complaints, SDNY then weighed in, objecting to Parnas’ request. They invoke two reasons for their objection. The first poses interesting Fourth Amendment considerations; effectively SDNY argues that Parnas’ warrant return from Apple includes material that Parnas never possessed (and some material he deleted that only still exists because prosecutors obtained a preservation request).

The materials at issue include records that, as far as the Government knows, were never in Parnas’s possession. For instance, the data produced by Apple includes deleted records (which may only exist because of the Government’s preservation requests), account usage records, and other information to which a subscriber would not necessarily have access. The form of the report, which was created by the FBI, was also never in Parnas’s possession.

[snip]

Additionally, to the extent Parnas seeks to produce his own texts, emails, photographs or other materials, he should have access to the content stored on his iCloud account through other means: he can simply download his own iCloud account and produce it to HPSCI (and in fact, it appears he has already done so).

[snip]

To the extent that Parnas has deleted materials from his iCloud account, the Government is willing to work with counsel to ensure that Parnas can produce his own materials that are responsive to the Congressional request to HPSCI. To that end, the Government respectfully submits that Parnas’s counsel should identify for the Government any specific chats, emails, photographs, or other content Parnas is unable to access from his iCloud currently, but whic exist within the discovery that has been produced to him and in his view are responsive to the Congressional subpoena.

I find that stance interesting enough — basically a reverse Third Party doctrine, saying that subscribers aren’t the owners of the information Apple has collected on them, at least not in the former that FBI reports it out.

It’s the other objection I find most interesting. SDNY prosecutors — including one of the ones who argued against broad claims of privilege in the Michael Cohen — objects because the data from Parnas’ iCloud,

[I]t public disclosure still has the potential to implicate the privacy and privilege interests of third parties and co-defendants.

It then argues that requiring Parnas to specifically request content that he already deleted,

would also permit his co-defendants to raise any concerns with respect to their privilege or privacy interest prior to the materials’ release.

SDNY’s prosecutors are arguing that Parnas can’t release his own iCloud material because of other people’s privacy interests!! As if it is the place for SDNY’s prosecutors to decide what HPSCI considers proper levels of disclosure!!

I’ve been giving SDNY the benefit of the doubt on this prosecution, assuming that as prosecutors they would push back against any Bill Barr attempt to protect Rudy (though not the President). But this alarms me. It seems like SDNY is using Fruman — who is in a Joint Defense Agreement with Rudy — to speak for Rudy’s interests.

After making a cursory response to SDNY, Bondy responded in more detail to Fruman. In it, Bondy makes the kind of argument about the limits of privilege you’ll almost never see a lawyer make.

[T]he burden is on the party asserting the attorney-client privilege to first establish that there was: 1) a communication; 2) made in confidence; 3) to an attorney; 4) by a client; 5) for the purpose of seeking or obtaining legal advice. The part asserting attorney-client privilege has the burden of conclusively proving each element, and courts strongly disfavor blanket assertions of the privilege as “unacceptable.” In addition, the merre fact that an individual communicates with an attorney does not make the communication privileged.

There are also instances in which the attorney-client privilege is waived, including when the substance of otherwise privileged communications are shared with third parties, when the communications reflect a criminal or fraudulent intent between the parties, when the communications are part of a joint–yet conflicted–representation, and in cases where the parties to a joint defense have become adverse in their interests. 

Bondy then goes on to add that HPSCI “does not recognize attorney-client privilege,” which may be why, at about the time these letters were breaking, Jay Sekulow was on the floor of the Senate haranguing Democrats for not respecting that privilege (which Sekulow suggested was in the Bill of Rights). He uses that stance to suggest SDNY is making a claim that violates separation of powers.

From there, Parnas goes on to disavow any privilege shared in his brief Joint Defense Agreement with the Russian mob, in part based on discussions about his initial response to the HPSCI subpoena having been shared more widely.

Mr. Parnas waives all privilege with respect to the communications he had with Mssrs. Dowd and Downing. Furthermore, the substance of his and Mr. Fruman’s legal representation appears to have been shared with third parties, including Jay Sekulow, Rudolf Giuliani, John Sale, Jane Raskin, and others. … As the Court may know, Mssrs. Sekulow, Raskin, and Giuliani are also attorney for President Trump. Mr. Giuliani and the President have interests divergent from Mr. Parnas’s wish to cooperate with Congress and the Government. Mr. Parnas believes that his and Mr. Fruman’s ostensibly joint representation by Attorneys Dowd and Downing was conflicted and intended from its inception to obstruct the production of documents and testimony responsive to lawful congressional subpoena.

[snip]

Here, Attorney Dowd undertaking a joint representation of Mr. Parnas and Mr. Fruman — with the President’s explicit permission — constituted an actual conflict of interest at the time and appears designed to have obstructed Mr. Parnas’s compliance with HPSCI’s subpoenas and any ensuring efforts to cooperate with congressional investigators or federal prosecutors.

Bondy ends by saying it’s up to those claiming a conflict to invoke it.

Bondy makes it fairly clear: he believes the privilege SDNY has set Fruman up to object to involves Rudy and Trump, neither of whom are in a position to object, particularly given that if they do, Bondy will argue that Parnas believes their grift might be criminal and therefore the privilege doesn’t apply.

So instead of the President and his lawyer claiming that Parnas’ release of this material will violate privilege, Fruman does.

Mr. Fruman has reason to believe that the Production Material contains privileged information belonging to Mr. Fruman and others.

He invokes only the consultation of their shell company, Global Energy Producers, with [Rudy’s former firm] Greenberg Traurig in conjunction to substantiate a common attorney-client interest, then nods to more:

This is but one example, and there are many more, but certainly the privilege issues implicated by the repeated amendments to the Protective Order are far more expansive than the attorney-client relationships identified in Mr. Bondy’s letter.

Fruman then complains that he cannot — as Parnas has said he must do — invoke privilege because he’s not in possession of the materials (just the taint team and Parnas have them).

The best part is where, still faced with the problem that the people whose privilege is at issue (Rudy and Trump) cannot politically invoke it, Fruman finds someone else whose privilege, he says, has been violated: Dmitry Firtash.

Mr. Fruman is not the only person whose privilege information is at risk. For example, Mr. Parnas has represented that he was employed as a translator for Victoria Toensing and Joseph DiGenova in connection with their representation of Dymitry Firtash. Clearly, any materials Mr. Parnas received as a translator assisting attorneys in the representation of Mr. Firtash would be protected by attorney-client privilege. And that privilege would be held by Mr. Firtash, the client, not Mr. Parnas.

It’s increasingly clear what Parnas and Bondy are up to: They’re trying to make it politically (and given the OLC memo prohibiting the indictment of the President) bureaucratically impossible to pursue further charges. If everything recent Parnas did was done for the President, he shouldn’t be the only one facing prosecution for it.

Fruman, meanwhile, seems to be the sole member of the Joint Defense Agreement with the Russian Mob who is a party here, trying to prevent his position from deteriorating by speaking for all the affected parties, only without naming Rudy or Trump (presumably backed by the same old pardon promises Trump always uses to get witnesses against him to take the fall).

What’s not clear is what SDNY is up to. Because it sure seems like they’ve used Fruman to protect Trump’s and even Rudy’s interests.

Judge Oetken scheduled a hearing for Thursday to resolve all this. Which may be too late for Parnas’ play.