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Unlike Michael Sussmann, Patrick Byrne Was Not Prosecuted for Providing Allegedly False Tips to the Government

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Among the many records on the Durham investigation DOJ newly released to American Oversight on June 1 is an email, dated August 23, 2019, from Seth DuCharme to Durham and one of his aides revealing that “Overstock CEO gave info to DOJ for John Durham’s review of Russia investigation origins.”

We can be fairly sure what Byrne provided DOJ because he first went on Fox and CNN and laid it all out there. His excuse for getting laid by Maria Butina, he said, was that Peter Strzok told him to do it as an investigative ploy (the reasons why have never really made sense).

“I figured out the name of who sent me the orders and this has been confirmed. The name of the man who sent me was Peter Strzok,” Byrne exclaimed, naming the embattled former FBI agent at the center of the right’s Spygate conspiracies. “This is going to be quite a whirlwind.”

At times bursting into tears, Byrne alleged there was a “big coverup” of “political espionage” that was connected to President Trump, Hillary Clinton, Marco Rubio and Ted Cruz, insisting that “this is not a theory” of his because he was “in the room when it happened.”

“Both catching my friend’s murderer and taking on Wall Street were consistent with my values and it was my honor to help the Men in Black and it was the third time that they came to me,” he said at one point. “And I got some request, I did not know who the hell it came from and it was fishy and three years later on watching television and I realized who it was—it was Peter Strzok and [former Deputy FBI Director] Andy McCabe, that the orders came from.”

Byrne said he decided to come forward with his Deep State concerns because he felt guilty for recent mass shootings.

“But the issue is, I realized that these orders I got came from Peter Strzok, and as I put together things, I know much more than I should know and tried to keep silent,” he said. “Everyone in this country has gone nuts, and especially for the last year when I realized what I know, every time I see one of these things, somebody drives 600 miles to gun down 20 strangers in the mall, I feel a bit responsible.”

[snip]

“No doubt Peter Strzok would watch this and say he’s full of it, I had nothing to do with anything,” the Fox News anchor stated.

Here is my first post on the allegations, written the same day as this Seth DuCharme email.

Strzok would ultimately deny the allegations about him specifically.

In early November, he told me that he had never met Byrne, and had “no awareness” of him before reading about him in the news in August, 2019. When I asked about one of Byrne’s most incendiary claims—whether an F.B.I. agent might instruct someone to pursue a romantic relationship with a suspect in order to gather intelligence—Strzok said that the Bureau had thirteen thousand agents, and that, though he couldn’t dismiss Byrne’s story out of hand, it sounded “extraordinarily fantastical.” He went on, “This isn’t some James Bond film—we don’t tell people, ‘Go bed this vixen for your country.’ ”

And, unless I missed it in John Durham’s report, he did not even include this among the things he investigated.

It’s hard to know how seriously DOJ took it, but DuCharme’s involvement shows it had the same kind of high level interest as the Alfa Bank anomalies. One of Bill Barr’s key advisors was involved in it. And whatever heed DOJ paid to it, would be hard to take Byrne’s allegations less seriously than the Cyber agents who dismissed the Alfa Bank anomalies in barely more than a day, making substantial errors along the way.

Plus, DOJ withheld this information under a b7A exemption, reflecting that it was treated as part of an ongoing investigation, until Durham finished. Someone at DOJ treated this with enough seriousness to bury for four years. Which raises the prospect that Durham believed it was sound to criminalize Michael Sussmann, a Democratic lawyer sharing a honestly held tip, but chose to do nothing about a guy with ties to a convicted Russian agent sharing wild conspiracies.

And here we are, four years later, and Byrne continues to share wild conspiracies, most that undermine American democracy.

And now, amid reports that Jack Smith is zeroing in the December 18, 2020 meeting at which Patrick Byrne and others pitched seizing voting machines, Byrne is suggesting he has — and plans to release — kompromat on Smith (he may have deleted this but this thread repeats the theme).

I’m not saying Byrne should have been prosecuted for making unsubstantiated claims about the Russian investigation — unless the government can tie his motive to Butina’s operation.

I’m saying the contrast with what Durham did with Michael Sussmann and what he didn’t do with Byrne is a stark indicator that he would criminalize Democratic politics while ignoring crazy conspiracies from someone with direct ties to a Russian influence operation.

Update: Added a second part from the FOIA. h/t Brian Pillon.

“Problem:” SDNY Charges Elena Branson as Unregistered Agent of Russia

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Back in 2013, the Senior Vice President of the Russian American Chamber of Commerce (Sergei Millian’s organization) sent Elena Branson language from FARA with the subject line, “Problem.”

a. On or about January 30, 2013, BRANSON received an email from an individual using an email address ending in “mail.ru.” Based on my review of publicly available information, I have learned that this individual was a Senior Vice President of the Russian American Chamber of Commerce in the USA. This email had the subject line “Problem.” and the text of the email included, among other things, a portion of the FARA Unit’s website with background on FARA. In response, BRANSON wrote, in part, “I am interested in the number of the law, its text in English[.]” The sender then responded with “Lena, read …” and copied into the email background on FARA and portions of the statute.

Branson, who the prior year had founded the Russian Center of New York and subsequently became the Chair of Russian Community Council of the USA (KSORS), apparently didn’t think it was an urgent problem. It wasn’t until 2019 that she appears to have considered — but then, after asking Russian Ambassador Anatoly Antonov for guidance, decided not to — register under FARA.

b. On or about December 10, 2019, BRANSON received an email indicating that BRANSON had requested a new FARA “eFile” account.21 That day, a member of the FARA Unit emailed the Branson RCNY Account with an eFile account number and temporary password to log in to the FARA eFile system. Later that day, a user logged in to the FARA eFile system using that account number and temporary password, and entered the registration name “Russian Center, Inc.” and the RCNY Office as the address. The user did not submit a FARA registration for the account. A user then accessed the account again on or about December 11, 2019, but, again, the individual did not submit a FARA registration. The internet protocol addresses connected to both log-ins of this account resolve to the same zip code as the RCNY Office.

c. On or about December 26, 2019, BRANSON emailed the Embassy Email Account. In the cover email, BRANSON wrote, in part, “[A] letter is in the attachment. Respectfully, Elena.” In the attached letter, BRANSON wrote, in part, that she had been asked questions from “compatriots” about “whether it is necessary to register their public organizations as a foreign agent.” BRANSON further wrote “[t]hese questions began to arise after the arrest of Maria Butina in Washington in July 2018 on charges of working as a foreign agent in the United States without registration.” BRANSON concluded the letter by asking the Embassy to advise such Russian compatriot groups, writing, “I am asking you to provide legal advice regarding registration as a foreign agent . . . for public organizations of Russian compatriots in the United States.” The letter was addressed to Ambassador-1.

Branson’s failure to register lies at the core of a 6-count complaint unveiled by SDNY yesterday, charging Branson in several conspiracies, under both FARA and 18 USC 951, as well as for visa fraud.

Branson won’t be arrested off this complaint. She’s long gone.

A month after the FBI interviewed her and searched her office in September 2020, she fled the country. Not long after Biden was inaugurated, Branson sold her NYC apartment.

During this investigation, the FBI has, among other things, executed judicially authorized search warrants for (i) approximately eight of BRANSON’s electronic accounts (the “Branson Accounts”3); (ii) the RCNY office (which was also BRANSON’s residence) in Manhattan, New York (the “RCNY Office”); and (iii) BRANSON’s person, for all electronics and other materials in her possession at the time of the search. From the RCNY Office and the search of BRANSON’s person, the FBI recovered a total of approximately 34 electronic devices (the “Branson Electronics”), including approximately 11 cellular phones. The FBI also conducted a voluntary interview of BRANSON on the same day as the search of the RCNY Office (the “Branson Interview”) and has interviewed other individuals living in the United States in connection with the investigation.

The searches of the RCNY Office (the “RCNY Search”) and BRANSON’s person, as well as the Branson Interview, took place on or about September 29, 2020. BRANSON flew to Moscow, Russia, on or about October 20, 2020, and BRANSON does not appear to have returned to the United States since that date. In or about March 2021, BRANSON sold the RCNY Office, which had been her residence in New York City. During in or about October and November 2020, BRANSON’s then boyfriend 9 (“Boyfriend-1”) wired approximately $197,000 to two of BRANSON’s bank accounts at Russian banks.4 On or about October 15, 2021, RT, formerly known as Russia Today, a Russian state-controlled television station, published an interview conducted by Maria Butina5 of BRANSON. During this interview, BRANSON told Butina, in substance and in part, that BRANSON left the United States for Moscow approximately one month after the Branson Interview because BRANSON was “scared” and thought the “probability was very high” that she would be arrested if she stayed in the United States.6

3 The Branson Accounts include four email accounts and four social media accounts, including BRANSON’s Facebook account (the “Branson Facebook Account”).

So Branson will only be arrested if she decides to flee Putin’s increasingly totalitarian regime.

Unlike the prosecution of Jack Hanick, then, whose indictment may have been timed to tolling statutes of limitation last November and in which the US is working on getting him extradited from the UK, this complaint seems to be more about messaging in the wake of the Russian invasion of Ukraine.

As a messaging vehicle, it shows how Russia has committed to the “consolidation” of Russian diaspora, cultivating a Russian identity that can be used to mobilize political pressure (and, in Ukraine and the Baltics, justifications for imperialism).

In or about November 2015, Lavrov published an article titled “Russian World: Steering Towards Consolidation.” In this article, Lavrov wrote, in part, “The provision of support to the Russian world is an unconditional foreign-policy priority for Russia, as formalized by Russia’s Foreign Policy Concept. . . . Over the years, we have managed to elevate our work in this area to an entirely new level and to create effective cooperation mechanisms in close contact with representatives of foreign communities.”

Some of Branson’s activities are mundane cultural exchanges paid for by Russian government entities. Some sprinkle the names of likely spies or handlers in the description.

Perhaps most interesting, the complaint provides an interesting addition to this passage from the Mueller Report.

Later [on November 9, 2016, the day after Trump’s victory, Kirill] Dmitriev flew to New York, where Peskov was separately traveling to attend the chess tournament. 1020 Dmitriev invited Nader to the opening of the tournament and noted that, if there was “a chance to see anyone key from Trump camp,” he “would love to start building for the future.” 1021 Dmitriev also asked Nader to invite Kushner to the event so that he (Dmitriev) could meet him. 1022 Nader did not pass along Dmitriev’s invitation to anyone connected with the incoming Administration. 1023 Although one World Chess Federation official recalled hearing from an attendee that President-Elect Trump had stopped by the tournament, the investigation did not establish that Trump or any Campaign or Transition Team official attended the event. 1024 And the President’s written answers denied that he had. 1025

The complaint describes how Branson had been instructed to arrange a meeting with Trump or Ivanka in March 2016, around the same time Russia was hacking John Podesta, though the complaint is remarkably coy about whether Branson ever sent her draft letter to Trump Organization (and if so, whether it was among the documents showing direct ties to Russia that Trump Organization withheld from Mueller’s inquiry and SSCI).

In or about March 2016, BRANSON exchanged a series of emails with Minister-2. During these messages, in part, Minister-2 asked BRANSON to organize a meeting with CC-2 and the now-former President of the United States, who was then a candidate for the Republican presidential nomination, or his daughter, in New York. On or about March 23, 2016, BRANSON received an email from Minister-2 with the subject line “additional meetings of [CC-2].” The email stated, in part, that the author was requesting BRANSON’s assistance in organizing meetings for CC-2 with “the management” of certain specified U.S. companies. On or about March 16, 2016, BRANSON sent an individual, who was then-chair of KSORS, a draft letter addressed to the now-former President, inviting him to the Russia Forum New York in April 2016 and suggesting that if his “busy schedule will not permit your attending our forum, perhaps you can suggest one of your children . . . who have followed in your footsteps.” The draft invitation included BRANSON’s name and contact information in the signature block. There is no indication that the now-former President or his children attended the referenced meeting.

Branson’s complaint describes what would be a second attempt to get Trump to attend the Chess Championship, in addition to Kirill’s attempt to extend an invite through George Nader. Branson sent her invite to an unnamed Trump Advisor.

BRANSON also attempted to arrange meetings for Russian officials at the 2016 World Chess Championship, which was held in Manhattan, New York:

1. On or about November 9, 2016, CC-6 emailed BRANSON with the subject line “Chess business.” CC-6 wrote to BRANSON, in part, “as discussed we will try to get Kirsan online after tomorrow’s official press-conference is over around noon at Fulton Street Market Building, South Street Seaport NY[.]”20 On or about that same day, BRANSON responded to CC-6 and wrote “[CC-6], good evening! I can bring the ipad for a Skype session. I will contact the media. Need them at noon?”

2. On or about November 10, 2016, BRANSON emailed an advisor to the now-former President of the United States (“Advisor-1”), expressing congratulations for their victory in the presidential election and attaching an invitation to the World Chess Championship addressed to the then-President- elect. The invitation was signed by “President of the International Chess Federation (FIDE-FIDE).” There is no indication that the now-former President attended the referenced event.

3. On or about November 11, 2016, BRANSON was photographed at the World Chess Championship with CC-6 and a second individual who I recognize, based on my review of publicly available photographs, to be the current Press Secretary for Russian President Vladimir Putin.

20 Based on my training and experience, including my review of publicly available material, I have learned that Kirsan Ilyumzhinov is the former President of the Republic of Kalmykia in the Russian Federation and the former president of FIDE, the International Chess Federation. I have further learned that, on or about November 25, 2015, the United States Department of the Treasury designated Ilyumzhinov as a Specially Designated National for his involvement with the Government of Syria and related entities.

Here, the complaint reiterates the Mueller conclusion: there’s no evidence Trump attended the event. But it does raise questions about the completeness of the response Trump offered to Mueller’s questions, pertaining to whether Trump was asked to attend.

Were you asked to attend the World Chess Championship gala on November 10, 2016? If yes, who asked you to attend, when were you asked, and what were you told about about [sic] why your presence was requested? 1. Did you attend any part of the event? If yes, describe any interactions you had with any Russians or representatives of the Russian government at the event.

Were you asked to attend the World Chess Championship gala on November 10, 2016? If yes, who asked you to attend, when were you asked, and what were you told about about [sic] why your presence was requested? 1. Did you attend any part of the event? If yes, describe any interactions you had with any Russians or representatives of the Russian government at the event.

Response to Question V, Part (a)

I do not remember having been asked to attend the World Chess Championship gala, and I did not attend the event. During the course of preparing to respond to these questions, I have become aware of documents indicating that in March of 2016, the president of the World Chess Federation invited the Trump Organization to host, at Trump Tower, the 2016 World Chess Championship Match to be held in New York in November 2016. I have also become aware that in November 2016, there were press inquiries to my staff regarding whether I had plans to attend the tournament, which was not being held at Trump Tower. I understand these documents have already been provided to you.

Trump describes a March 2016 discussion about hosting the event and November press inquiries about whether he would attend it. But there’s no mention of a November 2016 invitation asking him to attend.

Yet the Branson complaint suggests there would have been an invitation to Trump, signed by the sanctioned Kirsan Ilyumzhinov, sent through an unnamed advisor. His response reflects only earlier (in March) communications about the chess championship, not anything sent on November 10 bearing Ilyumzhinov’s signature.

This is a signaling complaint, one that likely won’t lead to anyone’s arrest. But it should raise more questions about Donald Trump’s candor with Mueller back in 2018.

And we should expect more of the same. On Twitter, Brandon Van Grack, who would have been involved in Branson’s investigation when he ran the National Security Division’s FARA office and likely knows what else might be in the pipeline, suggested there’s probably more of the same to come.

The “Big Boss” Directing Tom Barrack’s Actions

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There’s something almost entirely missing from the Tom Barrack indictment charging him with acting as an Emirate Agent. The money.

The indictment invokes forfeiture law, suggesting that someone profited from all of this or there’s some other loot the government wants to seize (but it lists none specifically; a memo requesting detention until a bail hearing requests that Barrack be made to identify all his financial assets to get bail).

But other than that, the sole mention of money describes that, on July 14, 2016 (months after this relationship started), Barrack pitched a “guidance board” that would tie UAE’s investments with strategic goals.

The presentation proposed the creation of a guidance board “through which all [UAE] investments are intertwined with the strategic vision of the country’s foreign and domestic policies as well as economic goals,” with the guidance board mandating “that all investments in operating companies use the resources at their disposal to influence [UAE’s interests] abroad … and partner with leading [UAE] friendly-influential figures to do so.” The presentation further proposed that the defendant THOMAS JOSEPH BARRACK work directly with Emirati Official 2 to execute the proposed strategy.

Then, months later on December 14, after Trump’s victory, this proposal assumed continued influence over Trump’s actions.

While the primary purpose of the platform [will be] to achieve outsized financial returns, it will also accomplish a secondary mandate to garner political credibility for its contributions to the policies of [Trump] … We will do so by sourcing investing, financing, operationally improving, and harvesting assets in those industries which will benefit most from a [Trump] Presidency.”

This suggests that Barrack and Colony Capital would be expected to direct UAE’s Sovereign Funds in such a way as to implement their policy goals. A 2018 NYT story described how Barrack’s investment firm raised $7 billion in the time after Trump got the nomination, almost a quarter of it from Saudi and Emirate sources — but none of that appears in the indictment.

Mr. Barrack’s company, known as Colony NorthStar since a merger last year, has raised more than $7 billion in investments since Mr. Trump won the nomination, and 24 percent of that money has come from the Persian Gulf — all from either the U.A.E. or Saudi Arabia, according to an executive familiar with the figures.

These financial relationships will face a great deal of scrutiny as this case goes forward because a Foreign Agent cannot be someone “engaged in a legal commercial transaction.” One defense Barrack might try to make is that this was all about obtaining customers for his investment fund. But if no money changed hands, Barrack might suggest he sincerely believed in the import of fostering better ties between the Emirates and the US.

A Foreign Agent, not a lobbyist

Contrary to what you might have read, this is not a FARA case, which is generally treated as a regulation covering certain kinds of lobbying for foreign (including non-governmental, like the political party Paul Manafort hid his work for) entities. Barrack was charged under 18 USC 951, which is about working for a foreign government directly. The statute is sometimes referred to as Espionage Lite, and in this case, the government might believe at least some of the people involved — perhaps Al Malik, who fled the country days after the FBI interviewed him in April 2018 — are spies. By charging 951, though, the government only has to show that the team was ultimately working on orders from government officials without registering, not that someone was secretly reporting to another country’s spying agencies.

And this is pretty clearly about a relationship directly with UAE. In addition to Barrack and his employee Matthew Grimes, the indictment describes a chain of command in which several senior Emirati officials convey requests through Rashid Sultan Rashid Al Malik Alshahhi (referred to as Alshahhi in the indictment and as Al Malik here and elsewhere) to Barrack. On the Emirati side, Emirati Official 1 (EO1), is described as someone who, “held a high-ranking position in its armed forces,” but who, given events described in the indictment, must be Abu Dhabi’s Crown Prince Mohamed bin Zayed. Emirati Official 2 (EO2) is described as a “high-ranking official with responsibilities related to national security,” but appears to be National Security Advisor Tahnoun Bin Zayed. Emirati Official 3 (EO3) is described as a member of UAE’s National Security Council. Their orders often get delivered to Al Malik through Emirati Official 4 (EO4), who is described as a government official who reports to EO 2 and EO3. There’s also a diplomat, Emirati Official 5, who asked Barrack to provide insight into the top national security appointments Trump was planning. Basically, this amounts to MbZ tasking EO4 to instruct Al Malik to provide instructions in turn to Barrack. This structure is important, because it demonstrates that Barrack was being directed directly by the UAE government and, starting in October 2016, directly by MbZ himself.

A secret agent hiding the direct orders he was following

Aside from this reporting structure, two things will help the government make the case that Barrack was working as an Agent of UAE. Officials from the Emirates explicitly said that they wanted to use Barrack to represent their policy interests in the US rather than relying on their ambassador. For example, EO2 explains why he prefers to work through Barrack than UAE’s ambassador because he, “knows ambassadors can’t do much and they are limited even if they’re active.” After Barrack started doing TV appearances where he pitched the UAE, Al Malik told him that EO1 had said, “you are the new trusted friend!” And after Grimes submitted a Barrack op-ed for advance review by Emirate officials, Al Malik responded that, “Big boss loved it.” Then after the op-ed came out (having had a reference to dictatorships that the Emiratis found objectionable removed), Barrack asked through Al Malik “how Boss liked the article?” The indictment further describes how, in December, the Emirates directed Barrack and Grimes to put together a set of plans — “100 days/6 months/year/4 years” — of what they wanted to accomplish along with the Saudis; on that plan Barrack, Al Malik affirmed in Arabic, would “be with the Arabs.” Then, when Al Malik wrote Grimes and suggested the US should list the Muslim Brotherhood as a Foreign Terrorist Organization, Grimes responded, “At your direction.” This is the language of clear direction, channeled right from the top of the UAE government.

And while not required (remember that Maria Butina didn’t really hide what she was up to or even her ties to Aleksander Torshin), the indictment describes several ways that those involved tried to keep this relationship secret. As Barrack shared a Trump speech in advance, he described that it was “Totally Confidential.” In September, just as Barrack would start dealing directly with MbZ and two days before he’d call out MbZ in a Bloomberg interview, the go-betweens instructed Barrack to download the encrypted messaging app that MbZ uses. Barrack seems to have gotten a text directly from MbZ on September 29. And then in October, Grimes arranged to get both Barrack and himself dedicated phones to use to communicate with MbZ and others via the encrypted app.

While not included in the indictment, the detention memo also describes that Barrack downplayed his ties with Al Malik in a filing to the State Department.

Indeed, in June 2017, the defendant completed and submitted paperwork to the U.S. Department of State in connection with his efforts to secure an official position in the Administration. In his submissions, the defendant materially misrepresented his connection to Al Malik, falsely claiming to have had only infrequent contact with Al Malik and further claiming that he did not know Al Malik’s citizenship or whether Al Malik was affiliated with a foreign government, despite describing Al Malik in private communications as the UAE’s “secret weapon.” Further, in his submissions to the U.S. Department of State, the defendant was required to report any occasions when he had been asked to provide advice, serve as a consultant, even informally, or otherwise work on behalf of a foreign government. The defendant failed to disclose his extensive activities on behalf of the UAE.

It’s partly all this secrecy that will help the government prove their case.

But the way the government uses additional charges to show that Barrack tried to hide all this will help. In addition to 951 and Conspiracy to violate 951 charges (the latter of which was likely included because it’s easier to prove and to provide defendants, particularly Grimes, with a charge that has less onerous penalties to plead to), the government charged Barrack with obstruction of justice and four counts of false statements for attempting to lie about this. In a June 20, 2019 interview with the FBI, the indictment alleges that Barrack lied about whether:

  1. Al Malik asked Barrack to do things for UAE
  2. Barrack downloaded an encrypted app to use to communicate with MbZ and other Emirati officials
  3. Barrack set up a meeting between MbZ and Trump and, generally, whether he had a role in facilitating communications between them
  4. He had a role in prepping MbZ for a September 2017 meeting with Trump

Curiously, the detention memo mentions two more lies that aren’t included in the indictment:

(1) writing a draft of a speech to be delivered by the Candidate in May 2016; (2) reviewing a PowerPoint presentation to be delivered to senior UAE officials on how to increase the UAE’s influence in the United States with his assistance;

In any case, this structure makes it easy to hold Barrack accountable at least via his lies to the FBI, and that he allegedly lied is powerful evidence that the full scope of the relationship was meant to be secret.

The key Trump world figures and the black box White House

Over coming days, we’ll learn who all the Trump officials named in the indictment are, but a key, unstated part of it all is Barrack’s success at placing Paul Manafort on Trump’s campaign. The indictment dates Barrack’s role as an “informal” advisor to Trump’s campaign to “approximately April 2016,” one month after Barrack had a key role in installing Manafort on Trump’s campaign.  It describes how Al Malik set up a meeting on April 24, in advance of which Barrack boasted that he had a 30-year relationship with Trump and had “staffed the Campaign.” After a meeting in the Emirates, EO 4 confirmed to Alshahhi that Barrack would be “the only channel” to Trump for UAE. Days later, Barrack sent Alshahhi a draft Trump energy speech and asked for feedback. Ultimately, Barrack succeeded in getting a promise to “work with our Gulf allies” into a May 26 Trump speech.

It’s not really clear with whom Barrack was working on the campaign. The indictment describes that “a senior member of the Campaign” emailed Barrack with a revision of the Energy speech, in response to which, Barrack instructed the “senior member” that they needed “one paragraph to balance foreign-policy concerns for energy dependent allies in the gulf.” ¶22 It’s likely that this is either Manafort himself (who had not yet fully pushed out Corey Lewandowski but was well on his way) or Rick Gates, the latter of whom played a similar role when Roger Stone wanted to script Trump’s foreign policy statements at that stage of the campaign.

Barrack’s role as Chair of Trump’s Inauguration Committee is minimal to the crimes in this indictment (meaning double jeopardy would not prevent him from being charged in that, too). But one paragraph does describe how Barrack agreed when Al Malik offered to “take care of ME side” of the the Inauguration. And the indictment describes that when Al Malik attended the Inauguration, he did so as Barrack’s personal guest.

Similarly, there’s no mention of December and January meetings involving Jared Kushner and others, even though the December 12, 2016 meeting happened right after Barrack was in UAE on December 2.

One thing the indictment may have tried to do is insulate the indictment from any Executive Privilege concerns. Its narrative stops at the White House door. The indictment describes Al Malik asking Grimes to get the Administration to list the Muslim Brotherhood as an FTO and describes a public report shortly thereafter describing that it was under consideration, but it doesn’t describe who or even whether Barrack talked to to make that happen. It describes that Al Malik asked Grimes to set up a phone call between MbZ and Trump, describes Grimes observing that it got set up “right after I spoke to [Barrack] about it,” and quotes Grimes saying, “We can take credit for phone call.” But the overt acts of the indictment don’t actually say whether they deserved credit, or whether someone else had picked up the influence racket. The government must know he did, because they charge him for lying about setting up this meeting but it, by itself, is not an overt act. The day after MbZ met with Trump, Barrack wrote Al Malik describing that he had “lots of info on [the White House] meeting!” without describing Barrack’s source for that information. In an exception that proves the rule, the indictment describes how, as part of an effort to kill plans for a meeting at Camp David to mediate tensions in the Gulf, Barrack left a message with Trump’s Executive Assistant saying he had “something very important to share [using an ellipsis rather than naming Trump or anyone else] about the Middle East,” followed by Al Malik, two days later, offering “very special thanks and appreciations from the big guy.”

In other words, even though two of the charged lies pertain to Barrack’s role in shaping US policy in events that directly involved Trump, and even though comments suggest Barrack successfully interceded, the White House is treated as a black box; no discussions within the White House or between Barrack and Trump appear in the indictment, but they are implied in many places.

Where this came from where it will go

This investigation started well before 2018, because that’s when Al Malik fled the country just days after an FBI interview. That means it could have been a referral from the Mueller investigation (though given that Barrack lives in Los Angeles, it’s not clear why Mueller would have referred it to EDNY rather than CDCA). DOJ conducted other investigations into UAE’s foreign influence peddling there (as well as some investigations into Jared), so it’s possible this arose out of those investigations.

One thing that’s curiously missing from this indictment, though (along with references to the December 2016 or January 2017 meetings) is any reference to George Nader, who also was operating on instructions direct from MbZ and who provided extensive grand jury testimony as part of that investigation. When Nader tried to obtain a copy of his grand jury transcript as part of his defense in other influence peddling crimes in November 2019, it was revealed there were still multiple ongoing investigations referenced in it. There’s good reason to believe that Nader was not entirely forthcoming with Mueller though, in which case DOJ may not want to invoke him at all.

It’s equally interesting where this might go, which is part of the reason I find the different treatment of Candidate Trump from President Trump in the indictment really notable. This is an investigation that Billy Barr didn’t kill and that survived any pardon attempt, which suggests that Barr and Trump didn’t entirely kill all investigations implicating Trump (though the Rudy Giuliani investigation already showed that). But there are a number of things — most notably, the Inauguration — that might be implicated here but really isn’t part of the indictment.

Merrick Garland’s DOJ is not shying away from crimes that directly implicate Donald Trump. But the way they treated the White House as a black box in this indictment suggests significant deference to things Trump did while President.

Update: This Intercept story from June 2019 strongly suggests that this Barrack investigation arose out of the Mueller investigation.

Al-Malik’s name later surfaced in connection with a federal probe into potential illegal donations to Trump’s inaugural fund and a pro-Trump Super PAC by Middle Eastern donors. Al-Malik was interviewed by members of special counsel Robert Mueller’s team and was “cooperating” with prosecutors, his lawyer told The Intercept last year. The New York Times recently reported that investigators are looking into “whether Mr. al-Malik was part of an illegal influence scheme,” although no details of that potential scheme have been made public.

In fact, the U.S. intelligence community has concluded that al-Malik served as a paid intelligence source for the UAE throughout 2017, The Intercept has learned.

[snip]

After he was interviewed as part of the Mueller investigation, al-Malik left Los Angeles, where he’d been based for several years, and went back to the UAE.

And the story describes Al Malik’s handler as the Director of UAE’s National Intelligence Service, Ali al-Shamsi.

Among the Emirati government officials overseeing al-Malik was Ali al-Shamsi, director of the Emirati National Intelligence Service, according to The Intercept’s sources. A source who knows al-Shamsi described him as “more than just a spy. He’s also a discreet messenger” for Mohammed bin Zayed, known as MBZ, and his brother Tahnoun bin Zayed, the UAE’s national security adviser.

This description is perfectly consistent with the description of EO 4 from the indictment.

Roger Stone’s Call for Donald Trump to Steal the Election Simply Continues His Efforts from 2016

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As Media Matters reported the other day, on an InfoWars appearance the other day, the President’s rat-fucker, Roger Stone, called for Donald Trump to seize ballots in Democratic parts of Nevada claiming voter fraud, send federal forces to disrupt the election, and invoke the Insurrection act to start arresting his opponents.

During his September 10 appearance on The Alex Jones Show, Stone declared that the only legitimate outcome to the 2020 election would be a Trump victory. He made this assertion on the basis of his entirely unfounded claim that early voting has been marred by widespread voter fraud.

Stone argued that “the ballots in Nevada on election night should be seized by federal marshalls and taken from the state” because “they are completely corrupted” and falsely said that “we can prove voter fraud in the absentees right now.” He specifically called for Trump to have absentee ballots seized in Clark County, Nevada, an area that leans Democratic. Stone went on to claim that “the votes from Nevada should not be counted; they are already flooded with illegals” and baselessly suggested that former Sen. Harry Reid (D-NV) should be arrested and that Trump should consider nationalizing Nevada’s state police force.

Beyond Nevada, Stone recommended that Trump consider several actions to retain his power. Stone recommended that Trump appoint former Rep. Bob Barr (R-GA) as a special counsel “with the specific task of forming an Election Day operation using the FBI, federal marshals, and Republican state officials across the country to be prepared to file legal objections and if necessary to physically stand in the way of criminal activity.”

Stone also urged Trump to consider declaring “martial law” or invoking the Insurrection Act and then using his powers to arrest Facebook CEO Mark Zuckerberg, Apple CEO Tim Cook, “the Clintons” and “anybody else who can be proven to be involved in illegal activity.”

While MMFA notes that Stone was instrumental in setting up the Brooks Brothers riot in 2000, it doesn’t note how Stone’s calls simply continue his efforts from 2016.

Roger Stone spent significant time in 2016 — particularly in the first half of August, the same period when he appears to have gotten advance knowledge of WikiLeaks’ upcoming leaks — predicting the election would be rigged against Donald Trump.

Closer to the election, Stone’s efforts to use “exit pollers” (which, this year, he wants to federalize) to suppress minority voters mirrored efforts made by Guccifer 2.0 (and, we’ve since learned, Maria Butina and Sergei Kislyak).

Stone’s voter suppression effort is not surprising. It’s the kind of thing the rat-fucker has been doing his entire life.

Except it’s of particular interest in 2016 because of the specific form it took. That’s because two aspects of Stone’s voter suppression efforts paralleled Russian efforts. For example, even as Stone was recruiting thousands of “exit pollers” to intimidate people of color, Guccifer 2.0 was promising to register as an election observer, in part because of the “holes and vulnerabilities” in the software of the machines.

INFO FROM INSIDE THE FEC: THE DEMOCRATS MAY RIG THE ELECTIONS

I’d like to warn you that the Democrats may rig the elections on November 8. This may be possible because of the software installed in the FEC networks by the large IT companies.

As I’ve already said, their software is of poor quality, with many holes and vulnerabilities.

I have registered in the FEC electronic system as an independent election observer; so I will monitor that the elections are held honestly.

I also call on other hackers to join me, monitor the elections from inside and inform the U.S. society about the facts of electoral fraud.

More interesting still, the GRU indictment makes it clear that GRU’s information operation hackers were probing county electoral websites in swing states as late as October 28.

In or around October 2016, KOVALEV and his co-conspirators further targeted state and county offices responsible for administering the 2016 U.S. elections. For example, on or about October 28, 2016, KOVALEV and his co-conspirators visited the websites of certain counties in Georgia, Iowa, and Florida to identify vulnerabilities.

Whether or not GRU ever intended to alter the vote, Russia’s propagandists were providing the digital “proof” that Republicans might point to to sustain their claims that Democrats had rigged the election.

That is, it’s not just that Roger Stone did what Roger Stone always does, cheat, in really cynical ways.

It’s also that Stone’s efforts closely paralleled those of Russian intelligence operatives, as they worked hard to get Trump elected.

And that curious parallel raises the stakes for Stone on this election.

That’s because, as of April, there were court filings targeting Roger Stone that invoked conspiracy and Foreign Agent charges that remained substantially redacted, presumably because the investigation was ongoing. The most recent BuzzFeed FOIA release (which leaves unredacted or redacts under privacy claims materials that in past releases were redacted for ongoing investigations) seems to reflect that any ongoing investigation has been finished or killed by Billy Barr. That’s not surprising, given that Barr’s intervention in Stone’s sentencing led the four prosecutors who had been working the case to resign. But it also means that if Trump is replaced by someone unwilling to save him from prison time, lapsed investigations (with statutes of limitation that extend at least until 2021) might become active again.

Roger Stone has already shown a willingness to sell out this country to get his friend Donald Trump elected. And since 2016, he has grown closer to sanctioned white supremacist groups sowing violence. Now, his freedom likely depends on finding a way to help Trump eke out another win. And Roger the rat-fucker has been training to thwart democracy his entire adult life.

Running Thread of emptywheel’s Running Threads on the SSCI Report

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I’ve been doing running Twitter threads on each chapter of the SSCI Russia Report. It has gotten too unwieldy for Twitter, so I’ll collect all those threads here:

Here are the posts I’ve written so far:

The Significance of the Trump-Firing-Masha Recording

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Yesterday morning, ABC and then Daily Beast revealed that there was a recording of the April 2018 meeting where Lev Parnas got Trump to say he would fire Marie “Masha” Yovanovitch simply by suggesting she was bad-mouthing Trump. Then, last night, Parnas’ lawyer Joseph Bondy appeared on Rachel Maddow’s show again, and provided more details of the recording.

It is about 1:40 hours long, and the firing reference comes after 40 minutes.

Bondy’s interview made two things clear:

  • By April 2018 — when Trump’s administration made Javelin missiles available to Ukraine provided that they not use them against Russia, reportedly in exchange for Ukraine’s halt to any cooperation with the Mueller inquiry — Trump was interested in how vulnerable Ukraine could be made by withdrawing US support. Half an hour, Parnas told Trump Ukraine could resist the Russian incursion without US help, based on what, we don’t know.
  • Lev Parnas probably did not fully comply with the HPSCI subpoena.

I’m as interested in the claimed story about how the recording came about.

Igor Fruman — the guy whose deep connections in Ukraine, including with some mobbed up businessmen, Parnas claims to have networked through — made the recording. That led most people to assume that Fruman released it, and therefore is cooperating, something for which there is no support.

There are at least three other possible sources for the recording.

First, SDNY seem to be suggesting that Parnas and Fruman were working for an as-yet unnamed Ukrainian to get Masha fired. That makes all the smiling pictures that the men posted with Trump and other powerful Republicans feel like a kind of reporting system, perhaps the same one Maria Butina was using. Such social media posting would be a good way to make it clear to whoever is footing the bill for such an operation that the grifters are obtaining the meetings promised. If so, the recording (and other similar ones) might serve a three-fold purpose:

  • It can serve as blackmail against Trump and others, just as it’s being used now
  • It collects intelligence about the security around Trump (Fruman reportedly took a video of the two of them entering the meeting)
  • It assures the paymaster of this operation that he’s getting what he paid for

Remarkably, we don’t yet know what Ukrainian was allegedly paying the grifters. It could be Dmitro Firtash (who last fall gave Parnas’ wife “a loan” that she could use to buy a house that, because it’d be in Florida, could not be seized as forfeiture). Given that Kevin Downing was involved in Parnas and Fruman’s defense, it could be any of Ukrainians who paid Paul Manafort after he entertained a plan to carve up Ukraine on August 2, 2016, which include Serhiy Lyovochkin and Rinat Akmetov, the former of whom used a straw donation to attend Trump’s inauguration. Or it could be one of the dodgy businessmen around Fruman. All had and have an incentive to try to reverse Ukraine’s efforts to combat corruption, and so would value the removal of Masha. [Update: I’m missing two other obvious candidates — Yuriy Lutsenko and Viktor Shokin — though much of the reporting on their interest in taking her out focuses on 2019 efforts that are more closely tied to dirt on the Bidens. Update: Fixed where the allegation that a Ukrainian was directing their efforts.]

Any of those people might have reason to release the recording. In the same way that Oleg Deripaska was pushing FBI to investigate Paul Manafort even as he was using Manafort’s desperation to try to coerce him to become his asset again, including to carve up Ukraine, anyone trying to compromise Trump can use his efforts to beat impeachment to make him more reliant on Ukrainian discretion about any deals they’ve made. Plus, by making Trump’s corruption and compromise clear even as Republican Senators vote against doing anything about it, it ensures that every single federally elected Republican has been implicated in this operation. So it’s possible the recording came from the paymaster.

It’s also possible it came from SDNY’s notoriously leaky FBI. The ABC reporters who first released it include DOJ beat journalists, so it would make sense that they’d have FBI sources. But I doubt it, not least because an FBI source would have had reason to leak it before yesterday.

But there is another possibility: that Parnas was the source, but he and Bondy lied about it early in the day (and okayed its release while Bondy was on MSNBC’s set, with a natural alibi he expressly noted), to create a cover story for releasing the recording without admitting that Parnas had not fully complied with the HPSCI subpoena but was belatedly, just yesterday, providing a copy of the recording to HPSCI. Bondy claimed it had been on Parnas’ iCloud all the time, but he had forgotten he had it.

Bondy was more aggressively questioned last night, in part by Chuck Rosenberg and Maya Wiley. But neither confronted Bondy on reports that, in discussions with SDNY last month, he had maintained Parnas’ claim that he was innocent of the existing charges against him: that he was paid and directed by the still-unnamed Ukrainian to get Masha fired. Neither raised that prosecutors have repeatedly said they expect to file more charges against the grifters, likely including (because FBI likely obtained a FISA order against one of them) foreign agent charges, which undercuts Bondy’s claim that Parnas is not seeking a cooperation deal because the existing charges against him don’t have that serious a sentencing range.

Bondy offered some explanation for why Parnas had not searched his iCloud because he had to make sure SDNY had gotten their evidence first. That sounds like a load of baloney. After all, SDNY would have been able to obtain Parnas’ iCloud account with a warrant to Apple (given that Apple decided not to encrypt iCloud after previously considering it, that means some really damning information on Trump is just sitting on a server in Cupertino or somewhere). The recording was over 18 months old when Parnas was arrested. So SDNY had had it, likely, for some time. Moreover, SDNY had told Parnas they had their discovery collected on December 3, which means Bondy could have provided this record — and anything else that was always available to Parnas — even before the phone records. Bondy now is claiming that Parnas was injured with a delay in discovery, because it delayed his ability to cooperate with HPSCI, which is totally undermined by any admission that Parnas had never even searched his iCloud (and still may not have) for information related to the HPSCI subpoena.

All of which suggests Parnas is trying to carefully manage what he’s sharing with HPSCI, presumably focusing on the latter period of his work to get Masha fired, when he could claim to be doing Rudy Giuliani’s bidding, and not the earlier part, when prosecutors claim he was working for some Ukrainian. For better and worse, that likely means that Rudy is at least partly a victim of Parnas, someone who was desperate and weak and easily manipulated into doing really stupid things — just like Trump — who could then be claimed as the real actor behind this operation.

In a sane world, both parties would take a step back and agree that our quisling President and his fawning lackeys were an easy mark. We’d talk about how to unwind whatever damage Trump has done to himself and the country.

But we don’t live in a sane world and Republicans are about to defend Trump’s right to be manipulated by grifters and spies as his Constitutional prerogative.

The DOJ IG Report on Carter Page: Policy Considerations

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Before and continuing into the holiday break, I wrote a slew of posts on the DOJ IG Carter Page Report. Those are:

Overview and ancillary posts

DOJ IG Report on Carter Page and Related Issues: Mega Summary Post

The DOJ IG Report on Carter Page: Policy Considerations

Timeline of Key Events in DOJ IG Carter Page Report

Crossfire Hurricane Glossary (by bmaz)

Facts appearing in the Carter Page FISA applications

Nunes Memo v Schiff Memo: Neither Were Entirely Right

Rosemary Collyer Responds to the DOJ IG Report in Fairly Blasé Fashion

Report shortcomings

The Inspector General Report on Carter Page Fails to Meet the Standard It Applies to the FBI

“Fact Witness:” How Rod Rosenstein Got DOJ IG To Land a Plane on Bruce Ohr

Eleven Days after Releasing Their Report, DOJ IG Clarified What Crimes FBI Investigated

Factual revelations in the report

Deza: Oleg Deripaska’s Double Game

The Damning Revelations about George Papadopoulos in a DOJ IG Report Claiming Exculpatory Evidence

A Biased FBI Agent Was Running an Informant on an Oppo-Research Predicated Investigation–into Hillary–in 2016

The Carter Page IG Report Debunks a Key [Impeachment-Related] Conspiracy about Paul Manafort

The Flynn Predication

Sam Clovis Responded to a Question about Russia Interfering in the Election by Raising Voter ID

The IG Report made nine recommendations, which FBI largely accepted with implementing plans. Those recommendations focus on the paperwork side of FISA applications and the protections against purported politicization. Most of those recommendations (save, especially, the one suggesting Bruce Ohr be punished for sharing national security threat information) are worthwhile. But they are inadequate to ensuring similar problems don’t recur. Moreover, there are questions that should be asked even before we get to “fixing” FISA.

This post attempts to ask some of those questions.

What should FBI have done when faced with a credible allegation Trump’s associates had advance knowledge of a hostile attack on our elections?

This is a question I’ve asked over and over of Republicans, but I’ve never got an answer.

Three of four people who were original subjects of this investigation covered up their actions. There are outstanding questions about all four and there were ongoing investigations into at least Paul Manafort and Mike Flynn when Mueller closed up shop. And a fifth Trump associate — Roger Stone — was found guilty of hiding details of how he tried to optimize the fruits of the Russian attack, without yet revealing what it is that he was hiding. So there’s no question the investigation was merited.

So what should the FBI have done when it got the tip from Australia? The IG Report raises questions about whether FBI should provide defensive briefings in this situation, but not how to conduct an investigation at a time when our country and elections are under active threat.

In retrospect, was the decision not to use other legal process the best one?

Peter Strzok famously lost a fight to investigate more aggressively, the true meaning of his “insurance file” comment. As a result, the FBI did not use any overt methods during the election.

Significantly, that means they didn’t get call records that would have provided a ready explanation for how Papadopoulos had learned Russia wanted to dump emails (particularly in conjunction with what he told CHS 3 about Mifsud). Doing so might have confirmed Carter Page’s claim that Paul Manafort never returned his emails. And it would have identified that Konstantin Kilimnik (who could be targeted under 702) had a suspicious record of communications with Manafort.

Rather unbelievably, FBI may not have asked Apple or Google for Carter Page’s app download history, which is how they usually find out if someone is using encrypted messaging apps (they did not learn what he was using until April 2017).

Particularly given all the chatter about the subjects of investigation, and given that three of them — Page, Manafort, and Papadopoulos — were “fired” from their free campaign jobs because of their ties to Russia, was that really the right decision? And given how successful FBI is at obtaining gags on legal process, was using FISA with Page really that much less invasive or was FISA used simply because his sustained ties to Russian intelligence officers meant FISA was the appropriate framework?

Why did FBI forgo a Section 215 order on Page?

Nothing in the public record suggests FBI got a Section 215 order before they obtained traditional FISA (including physical search) against Page. That’s true, even though the predication for 215 is lower (just talking to an agent of a foreign power, which Page had long been doing, is enough). This would have been a way to obtain the call records and download history that might have indicated that Papadopoulos was a more urgent target than Page, lessening the urgency to get a FISA targeting Page. If FBI in fact did not obtain that 215 order before the content order (once he was approved for the content order, the 215 order would have been presumptively approved), why not, and should they have? Past IG Reports have said the process of applying for a 215 is onerous enough that Agents often forgo it; is that what happened here?

Does the public agree with the FBI about the intrusiveness of informants?

One of the disconcerting aspects of the IG Report is its treatment of informants (Confidential Human Sources, or CHS, in the report). It spends a long time assessing whether the use of informants against Carter Page, Sam Clovis, and George Papadopoulos had the requisite oversight, ultimately concluding FBI followed the rules but the rules for politically exposed people should be more stringent.

Along the way, it revealed that the FBI:

  • Happened to have an informant on the books (Stefan Halper) with existing ties to three of the subjects of the investigation
  • Managed to convince someone Papadopoulos trusted (CHS 3) to report on him and used an accelerated process to open him or her as an informant, and tried but failed to get at least two other people to report on him
  • Had five other people in Trump’s orbit who were informants (Felix Sater might be one of these)
  • Accepted information obtained voluntarily from one of those informants
  • Had used informants to targeted the Clinton Foundation during the election period and at least some of those informants were handled by an Agent who wanted her to lose

That’s probably on top of Patrick Byrne, if indeed his claims to have been tasked against Clinton and Maria Butina in 2016 are true.

That’s a lot of informants situated to report on very powerful people.

Trump’s supporters have declared all this proof that they were “spied” on (ignoring the targeting against Hillary). Meanwhile, the FBI has pointed out that they more than complied with FBI’s rules on using informants, though there was less discussion in the IG Report about the fact that per its Domestic Investigations and Operations Guide, FBI could have used these informants at lower levels of predication. Before the IG Report recommended rules about heightened review (much of which would have been satisfied in this case anyway), we might ask whether we, as the public, agree that the use of informants is really as unintrusive as FBI thinks. And does it involve tradeoffs as compared to other methods? For example, which would have been preferable, getting Papadopoulos’ call records (which would have shown his ties to Mifsud), or throwing a series of informants at him?

Is the consideration of least intrusive means adequately reviewed?

The DIOG requires that FBI agents at least consider whether the “least intrusive” means of investigation will be an appropriate investigative step. The IG Report reviews this requirement, which is meant to ensure FBI agents balance privacy considerations with the import of the investigation, but never comments on whether the review here was correct. Moreover, it seems that there’s a rule that lowers this consideration significantly when a matter is deemed to pertain to national security (as this would have been).

I’ve long wondered whether FISA process in general gets adequate review on whether it’s really the correct least intrusive means judgment.

Is the FBI Director declaration regarding other investigative techniques adequately reviewed?

FISA requires that the FBI Director or his designee certify that the information the FISA application wants to obtain, “cannot reasonably be obtained by normal investigative techniques.” The IG Report notes this, largely because that’s what Jim Comey and Andrew McCabe reviewed the Page applications for, not probable cause. But it did not discuss how this determination is made, and I would bet a lot of money that this is an area where FISA could use more review.

Particularly given the use of gags in so much criminal process and the widespread availability of fairly exotic surveillance techniques, what is the measure for this declaration?

Does FBI conduct certain investigative techniques using FISA to keep them secret?

I noted that the FBI was close to concluding they didn’t need another FISA on Carter Page, but then learned he had used some encrypted app, and so got another FISA. This supports my suspicion that the FBI will use certain surveillance techniques under cover of FISA they otherwise would eschew just to keep it secret. There may be good reason for that (indeed, it might ensure that the most exotic surveillance only gets used with much closer District Court judge review than magistrates normally give warrant applications), but it would also skew the incentives for using FISA. While policy makers may not need to know what those techniques are, they deserve to know if FISA makes certain otherwise unavailable techniques available.

Why do we need FISA?

I don’t mean to be glib. Since the IG Report came out, a lot of people who’ve used it have said we need to preserve this ability. But they’re not explaining why. That’s a two-fold question. First, why does FBI need a different probable cause standard for foreign intelligence (the likely and noncontroversial answer is, spying on a lot of people, including diplomats, who haven’t committed an obvious crime). But the other question is, why can’t that level of secrecy and court review be accomplished at normal district courts? In the wake of 9/11, most courts (especially most courts that will regularly have FISA cases, like DC, NY, VA, and CA) have sophisticated court security procedures that would seem to accomplish much of what FISA was originally intended for. Having normal district judges — even if only a subset of them — review FISA applications might inject more viewpoints onto the Fourth Amendment review. Furthermore, it would ensure that more judges reviewing such applications are also seeing the kinds of criminal cases that might arise from them (something that I’ve argued was useful with Michael Mosman, who ironically was the judge that approved Page’s second FISA application).

In recent years, the FBI has devolved its FISA process to its field offices; why can’t that happen in the courts, as well?

Is relationship between lawyers and FBI agents on FISA too attenuated?

The explanation the IG Report used for blaming the FBI agents for all the missing information in FISA applications stems from the more attenuated involvement of National Security Division lawyers (Office of Intelligence, or OI here) in warrant applications than happens in traditional criminal investigations.

NSD officials told us that the nature of FISA practice requires that 01 rely on the FBI agents who are familiar with the investigation to provide accurate and complete information. Unlike federal prosecutors, OI attorneys are usually not involved in an investigation, or even aware of a case’s existence, unless and until OI receives a request to initiate a FISA application. Once OI receives a FISA request, OI attorneys generally interact with field offices remotely and do not have broad access to FBI case files or sensitive source files. NSD officials cautioned that even if 01 received broader access to FBI case and source files, they still believe that the case agents and source handling agents are better positioned to identify all relevant information in the files.

From that the IG Report decides that the problems in the Page applications arose through sloppiness or worse from the agents. But perhaps this is entirely the wrong conclusion. Perhaps, instead, the problems arose from OI lawyers having less ownership of what happens downstream from a FISA application than normal prosecutors would have, meaning they’re outsourcing more decision-making about relevance to agents whose motivations are at odds with that kind of decision-making. In other words, the remedy for this may not be instituting more checklists (which is what DOJ IG recommended and FBI has committed to), but changing the relationship between OI lawyers and the FBI agents applying for FISA?

Is there any legitimate reason to withhold review from defendants?

When Congress passed FISA, it envisioned that at least some defendants would review their FISA applications, but that hasn’t happened, at all. In the interim, the “wall” between FISA and criminal prosecutions has come down, making it more likely that FISA collection will end up as part of a criminal prosecution. Indeed, former NSD AAG David Kris suggests defendants should get review, which would mean that agents would know that any given FISA application might get shared with a defendant if it turned into a criminal case. At the very least, it seems that FBI and NSD should explain to Congress why they shouldn’t be asked to do this.

One of the problems may be with the definition of “aggrieved” under FISA. That includes both the target and those subject to collection under a FISA order. For example, Carter Page would have been aggrieved in Victor Podobnyy’s FISA order (which is probably where the reports that he had been collected under FISA in the past came from), and Mike Flynn would have been aggrieved under a FISA application targeted at Sergey Kislyak. Normally, only the target of a criminal warrant would get to challenge it. Effectively, one way the government is likely using FISA is to find out what Americans are talking to suspected spies, so the FBI would not want to reveal that use. (Though one of the problems likely arises from how the government defines “facilities” that can be targeted, because they don’t have to be owned by the person being targeted.)

Perhaps, then, one way to extend review to the actual defendants who were the targets of FISA surveillance would be to change the definition of aggrieved party, but along the way to change how searches on already collected FISA data are conducted.

What are the boundaries between FISA’s agent of a foreign power, 18 USC 951’s Agent of a Foreign Power, and FARA?

As I noted, the entire DOJ IG Report may suffer from a misunderstanding about what crime(s) FBI was targeting. Until 11 days after the report was released, it appeared to believe that Trump’s aides were only being investigated for FARA, which is basically unregistered political influence peddling. That appears to have been true, but it’s almost certainly not true of Page, against whom there was already an investigation into his willingness to share non-public economic information Russia’s spies ask for. If that’s true that the entirety of the First Amendment analysis in the report is superfluous, because Page — the only Trump aide targeted under FISA — had already met the standards for targeting under the First Amendment before FBI turned to his political speech in August 2016. That is, because Page was already being investigated for sharing non-political stuff with Russian spies , there should never have been a First Amendment question.

Particularly given the different status of FARA in 1978 when FISA was passed, its virtual lapse for years, followed by a recent focus on it in recent years (at a time when there are fewer protections against foreign influence peddling). it seems vitally important for Congress to demand an understanding of how these three statutory regimes intersect, and — hopefully — provide some clarity on it for everyone else.

Update: Added the question about various Foreign Agent designations.

Eleven Days after Releasing Their Report, DOJ IG Clarified What Crimes FBI Investigated

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The DOJ IG’s office has made two sets of corrections to their Report on Carter Page, the first on December 11 (two days after its release) and a second on December 20 (eleven days after its release). Three of those corrections fix overstatements of their case against the FBI (but which don’t catch all their overstatements and errors in making that case). One correction explains that more information has been declassified (without explaining an inconsistent approach to Sergei Millian as compared with other people named in the Mueller Report). And one correction — one of the changes made Friday — fixes a legal reference.

Here’s that correction:

On page 57, we added the specific provision of the United States Code where the Foreign Agents Registration Act (FARA) is codified, and revised a footnote in order to reference prior OIG work examining the Department’s enforcement and administration of FARA.

The correction changed this passage…

Crossfire Hurricane was opened by [FBI’s Cyber and Counterintelligence Division] and was assigned a case number used by the FBI for possible violations of the Foreign Agents Registration Act (FARA), Title 18 U.S.C. § 951, which makes it a crime to act as an agent of a foreign government without making periodic public disclosures of the relationship. 170

170 The FARA statute defines an “agent of a foreign government” as an individual who agrees to operate in the United States subject to the direction or control of a foreign government or official. 18 U.S.C. § 951(d).

To read like this:

Crossfire Hurricane was opened by CD and was assigned a case number used by the FBI for possible violations of the Foreign Agents Registration Act (FARA), 22 U.S.C. § 611, et seq., and 18 U.S.C. § 951 (Agents of Foreign Governments). 170

170 We have previously found differing understandings between FBI agents and federal prosecutors and NSD officials about the intent of FARA as well as what constitutes a “FARA case.” See DOJ OIG, Audit of the National Security Division~ Enforcement and Administration of the Foreign Agents Registration Act, Audit Division 16-24 (September 2016), https://oig.justice.gov/reports/2016/al624.pdf (accessed December 19, 2019)

The error appears harmless on its face, just a minor citation error that conflated FARA with 951 in the original report. But both in this instantiation and in the IG Report as a whole, the error may totally undermine its analysis and, indeed, the analytical framework of this entire IG investigation. That’s because if the people conducting this analysis did not understand the difference between the two statutes — and the error goes well beyond the citation enhancement described in the correction, because it exhibits utter lack of knowledge that there are two foreign agent statutes — then the Report’s analysis on the First Amendment may be problematic (and almost certainly is with respect to Page).

As I’ve written at length and as the cited IG Report from 2016 explains, the boundary between 22 USC 611 (FARA) and 18 USC 951 (Foreign Agent), both laws about what makes someone a “foreign agent,” remains ambiguous. Maria Butina, Anna Chapman, and the Russians who tried to recruit Carter Page were prosecuted under 18 USC 951 (though often that gets charged as a conspiracy because proving it requires less classified evidence), Paul Manafort, Rick Gates, and Sam Patten pled guilty to FARA violations. Mike Flynn’s former partner, Bijan Kian, was charged with conspiring to file a false FARA filing and acting as a Foreign Agent, invoking both statutes in one conspiracy charge; partly because of the way he was charged and partly because Flynn reneged on his statements regarding their activities, Judge Anthony Trenga acquitted him after he was found guilty, which may suggest the boundary between the two will present legal difficulties for prosecuting such cases.

18 USC 951 is sometimes called “espionage light,” though that phrase ignores that DOJ will often charge a known foreign spy under 951 — like the SVR (foreign intelligence) agents who tried to recruit Page — because proving it requires far less classified information. It requires the person be working on behalf of a foreign government, not just a foreign principal, and can but does not necessarily include information collection. FARA, however, only requires a person to be working on behalf of a foreign principal (which might be a political party or a company), and generally pertains to political influence peddling (it includes political activities, lobbying, and PR in its definitions, along with some financial stuff). 18 USC 951 will more often be clandestine, though as Butina’s case shows, it does not have to be, whereas FARA may cover activities that are overt if the person engaging in them does not register properly. A recent Lawfare post describes how DOJ’s superseding indictment of the Internet Research Agency relies on an interesting and potentially troubling new application of FARA.

In Mueller’s description of how the two laws might be applied criminally, he suggests 951 does not require willfulness, but a criminal violation of FARA would.

The Office next assessed the potential liability of Campaign-affiliated individuals under federal statutes regulating actions on behalf of, or work done for, a foreign government.

a. Governing Law

Under 18 U.S.C. § 951, it is generally illegal to act in the United States as an agent of a foreign government without providing notice to the Attorney General. Although the defendant must act on behalf of a foreign government (as opposed to other kinds of foreign entities), the acts need not involve espionage; rather, acts of any type suffice for liability. See United States v. Duran, 596 F.3d 1283, 1293-94 (11th Cir. 2010); United States v. Latchin, 554 F.3d 709, 715 (7th Cir. 2009); United States v. Dumeisi, 424 F.3d 566, 581 (7th Cir. 2005). An “agent of a foreign government” is an ” individual” who “agrees to operate” in the United States “subject to the direction or control of a foreign government or official.” 18 U.S.C. § 951 ( d).

The crime defined by Section 951 is complete upon knowingly acting in the United States as an unregistered foreign-government agent. 18 U.S.C. § 95l(a). The statute does not require willfulness, and knowledge of the notification requirement is not an element of the offense. United States v. Campa, 529 F.3d 980, 998-99 (11th Cir. 2008); Duran, 596 F.3d at 1291-94; Dumeisi, 424 F.3d at 581.

The Foreign Agents Registration Act (FARA) generally makes it illegal to act as an agent of a foreign principal by engaging in certain (largely political) activities in the United States without registering with the Attorney General. 22 U.S.C. §§ 611-621. The triggering agency relationship must be with a foreign principal or “a person any of whose activities are directly or indirectly supervised, directed, controlled, financed, or subsidized in whole or in major part by a foreign principal.” 22 U.S.C. § 61 l(c)(l). That includes a foreign government or political party and various foreign individuals and entities. 22 U.S.C. § 611(6). A covered relationship exists if a person “acts as an agent, representative, employee, or servant” or “in any other capacity at the order, request, or under the [foreign principal’s] direction or control.” 22 U.S.C. § 61 l(c)(l). It is sufficient if the person “agrees, consents, assumes or purports to act as, or who is or holds himself out to be, whether or not pursuant to contractual relationship, an agent of a foreign principal.” 22 U.S.C. § 61 l(c)(2).

The triggering activity is that the agent “directly or through any other person” in the United States (1) engages in “political activities for or in the interests of [the] foreign principal,” which includes attempts to influence federal officials or the public; (2) acts as “public relations counsel, publicity agent, information-service employee or political consultant for or in the interests of such foreign principal”; (3) ” solicits, collects, disburses, or dispenses contributions, loans, money, or other things of value for or in the interest of such foreign principal”; or ( 4) “represents the interests of such foreign principal” before any federal agency or official. 22 U .S.C. § 611 ( c )(1 ).

It is a crime to engage in a “[w]illful violation of any provision of the Act or any regulation thereunder.” 22 U.S.C. § 618(a)(l). It is also a crime willfully to make false statements or omissions of material facts in FARA registration statements or supplements. 22 U.S.C. § 618(a)(2). Most violations have a maximum penalty of five years of imprisonment and a $10,000 fine. 22 U.S.C. § 618. [my emphasis]

So back to the DOJ IG Report. As the revised footnote notes, at least until 2016, the FBI used the same case number for FARA and 951 cases. That probably makes sense from an investigative standpoint, as it’s often not clear whether someone is working for a foreign company or whether that company is a cut-out hiding a foreign government paymaster (as the government alleged in Flynn’s case). But it makes tracking how these cases get investigated more difficult, and obscures those cases where there’s a clear 951 predicate from the start.

The original text of this passage of the IG Report suggests that at least the person who wrote it — and possibly the entire DOJ IG team investigating this case — were not aware of what I’ve just laid out, that there’s significant overlap between 951 and FARA, but that clear 951 cases and clear FARA cases will both use this case designation. That’s important because one of these statutes involves politics (and so presents serious First Amendment considerations), whereas the other one does not have to (and did not, in Carter Page’s case).

It’s unclear whether this error was repeated in several other places in the Report. The passage describing how the individualized investigations were opened says these were all FARA cases:

After conducting preliminary open source and FBI database inquiries, intelligence analysts on the Crossfire Hurricane team identified three individuals–Carter Page, Paul Manafort, and Michael Flynn–associated with the Trump campaign with either ties to Russia or a history of travel to Russia. On August 10, 2016, the team opened separate counterintelligence FARA cases on Carter Page, Manafort, and Papadopoulos, under code names assigned by the FBI. On August 16, 2016, a counterintelligence FARA case was opened on Flynn under a code name assigned by the FBI. The opening ECs for all four investigations were drafted by either of the two Special Agents assigned to serve as the Case Agents for the investigation (Case Agent 1 or Case Agent 2) and were approved by Strzok, as required by the DIOG.

But if the person writing this did not know that a “foreign agent” case might be FARA, 951, or both, then it would mean this passage may misstate what the investigations were.

And the analysis over whether the investigation was appropriately predicated uses just FARA.

The FBI’s opening EC referenced the Foreign Agents Registration Act (FARA) and stated, “[b]ased on the information provided by [the FBI Legal Attache], this investigation is being opened to determine whether individual(s) associated with the Trump campaign are witting of and/or coordinating activities with the Government of Russia.”

In other words, it seems that this entire report is based on the assumption that the FBI was conducting an investigation into whether these four men were engaged in influence peddling that should have been registered and not also considering whether they were acting as clandestine agents for Russia.

That certainly appears to be the case for some of these men. For example, the first known warrant investigating Paul Manafort — which was focused on his Ukrainian work — listed only FARA, not 951. The derogatory language on George Papadopoulos speaks in terms of explicit, shameless influence peddling (which I’ll review in a follow-up post).

That said, the predication of the Flynn investigation would have included his past ties to the GRU, the agency that had hacked the DNC, and non-political relationships with Russian companies RT, Kaspersky, and Volga-Dnepr Airlines. He notified the Defense Intelligence Agency of all those things, though the government claims some of his briefings on this stuff includes inculpatory information. And he excused his payments from other Russian sources because his speakers bureau, and not Russia itself, made the payments, which might be considered a cut-out.

When Mueller got around to describing his prosecutorial decisions about these four men, he described both statutes (and explained that the office found that Manafort and Gates had violated FARA with Ukraine, Flynn had violated what it calls FARA with Turkey but elsewhere they’ve said included 951, and there was evidence Papadopoulos was an Agent of Israel under either 951 or FARA but not sufficient to charge.

Finally, the Office investigated whether one of the above campaign advisors-George Papadopoulos-acted as an agent of, or at the direction and control of, the government of Israel. While the investigation revealed significant ties between Papadopoulos and Israel (and search warrants were obtained in part on that basis), the Office ultimately determined that the evidence was not sufficient to obtain and sustain a conviction under FARA or Section 951

So it’s unclear whether the investigations into Papadopoulos, Flynn, and Manafort really were just FARA cases when they began, or were 951.

But the language Mueller used to describe his declination for Page (which includes a redacted sentence about his activities) makes it sound like his FISA applications alleged him to be — as would have to be the case for a FISA order — an Agent of Russia, implicating 951.

On four occasions, the Foreign Intelligence Surveillance Court (FISC) issued warrants based on a finding of probable cause to believe that Page was an agent of a foreign power. 50 U.S.C. §§ 1801 (b ), 1805(a)(2)(A). The FISC’s probable-cause finding was based on a different (and lower) standard than the one governing the Office’s decision whether to bring charges against Page, which is whether admissible evidence would likely be sufficient to prove beyond a reasonable doubt that Page acted as an agent of the Russian Federation during the period at issue. Cf United States v. Cardoza, 713 F.3d 656, 660 (D.C. Cir. 2013) ( explaining that probable cause requires only “a fair probability,” and not “certainty, or proof beyond a reasonable doubt, or proof by a preponderance of the evidence”).

Indeed, the IG Report provides abundant reason to believe this is the case. That’s because the FBI Field Office opened an investigation into Page in April 2016 based on a March 2016 interview pertaining exclusively to what are called “continued contacts” with SVR intelligence officers who tried to recruit him starting at least in 2009, interactions that they had been tracking for seven years.

An FBI counterintelligence agent in NYFO (NYFO CI Agent) with extensive experience in Russian matters told the OIG that Carter Page had been on NYFO’s radar since 2009, when he had contact with a known Russian intelligence officer (Intelligence Officer 1). According to the EC documenting NYFO’s June 2009 interview with Page, Page told NYFO agents that he knew and kept in regular contact with Intelligence Officer 1 and provided him with a copy of a non-public annual report from an American company. The EC stated that Page “immediately advised [the agents] that due to his work and overseas experiences, he has been questioned by and provides information to representatives of [another U.S. government agency] on an ongoing basis.” The EC also noted that agents did not ask Page any questions about his dealings with the other U.S. government agency during the interviews. 180

NYFO CI agents believed that Carter Page was “passed” from Intelligence Officer 1 to a successor Russian intelligence officer (Intelligence Officer 2) in 2013 and that Page would continue to be introduced to other Russian intelligence officers in the future. 181 In June 2013, NYFO CI agents interviewed Carter Page about these contacts. Page acknowledged meeting Intelligence Officer 2 following an introduction earlier in 2013. When agents intimated to Carter Page during the interview that Intelligence Officer 2 may be a Russian intelligence officer, specifically, an “SVR” officer, Page told them he believed in “openness” and because he did not have access to classified information, his acquaintance with Intelligence Officer 2 was a “positive” for him. In August 2013, NYFO CI agents again interviewed Page regarding his contacts with Intelligence Officer 2. Page acknowledged meeting with Intelligence Officer 2 since his June 2013 FBI interview.

In January 2015, three Russian intelligence officers, including Intelligence Officer 2, were charged in a sealed complaint, and subsequently indicted, in the Southern District of New York (SDNY) for conspiring to act in the United States as unregistered agents of the Russian Federation. 182 The indictment referenced Intelligence Officer 2’s attempts to recruit “Male-1” as an asset for gathering intelligence on behalf of Russia.

On March 2, 2016, the NYFO CI Agent and SDNY Assistant United States Attorneys interviewed Carter Page in preparation for the trial of one of the indicted Russian intelligence officers. During the interview, Page stated that he knew he was the person referred to as Male-1 in the indictment and further said that he had identified himself as Male-1 to a Russian Minister and various Russian officials at a United Nations event in “the spirit of openness.” The NYFO CI Agent told us she returned to her office after the interview and discussed with her supervisor opening a counterintelligence case on Page based on his statement to Russian officials that he believed he was Male-1 in the indictment and his continued contact with Russian intelligence officers.

The FBI’s NYFO CI squad supervisor (NYFO CI Supervisor) told us she believed she should have opened a counterintelligence case on Carter Page prior to March 2, 2016 based on his continued contacts with Russian intelligence officers; however, she said the squad was preparing for a big trial, and they did not focus on Page until he was interviewed again on March 2. She told us that after the March 2 interview, she called CD’s Counterespionage Section at FBI Headquarters to determine whether Page had any security clearances and to ask for guidance as to what type of investigation to open on Page. 183 On April 1, 2016, the NYFO CI Supervisor received an email from the Counterespionage Section advising her to open a [~9-character redaction] investigation on Page. The NYFO CI Supervisor said that [3 lines redacted] In addition, according to FBI records, the relevant CD section at FBI Headquarters, in consultation with OGC, determined at that time that the Page investigation opened by NYFO was not a SIM, but also noted, “should his status change, the appropriate case modification would be made.” The NYFO CI Supervisor told us that based on what was documented in the file and what was known at that time, the NYFO Carter Page investigation was not a SIM.

Although Carter Page was announced as a foreign policy advisor for the Trump campaign prior to NYFO receiving this guidance from FBI Headquarters, the NYFO CI Supervisor and CI Agent both told the OIG that this announcement did not influence their decision to open a case on Page and that their concerns about Page, particularly his disclosure to the Russians about his role in the indictment, predated the announcement. However, the NYFO CI Supervisor said that the announcement required noting his new position in the case file should his new position require he obtain a security clearance.

On April 6, 2016, NYFO opened a counterintelligence [8-9 character redaction] investigation on Carter Page under a code name the FBI assigned to him (NYFO investigation) based on his contacts with Russian intelligence officers and his statement to Russian officials that he was “Male-1” in the SONY indictment.

181 CI agents refer to this as “slot succession,” whereby a departing intelligence officer “passes” his or her contacts to an incoming intelligence officer.

182 Intelligence Officer 3 pied guilty in March 2016. The remaining two indicted Russian intelligence officers were no longer in the United States.

183 CI agents in NYFO told us that the databases containing security clearance information were located at FBI Headquarters. When a subject possesses a security clearance, the FBI opens an espionage investigation; if the subject does not possess a security clearance, the FBI typically opens a counterintelligence investigation. [my emphasis]

I’ve discussed Page’s designation as a “contact approval” until 2013 by CIA here, though to reiterate, his last contact with the CIA was in 2011, and while they knew about his contacts with Alexander Bulatov, a Russian intelligence officer working under cover as a consular official in NY, they apparently did not know or ask him about his contacts with Victor Podobnyy. This previous relationship with the CIA absolutely should have been disclosed, but does not cover activity in 2015, when he would have discussed his inclusion in the Podobnyy/Evgeny Buryakov indictment with a person described as a Russian minister.

The NYFO believed they should have opened an investigation into Page even before the interview, on March 2, 2016, when he admitted telling Russians he was Male-1 in the indictment and (per the Mueller Report), said he “didn’t do anything,” perhaps disavowing any help to the FBI investigation. The IG Report notes that Page provided Intelligence Officer 1 (who must be Bulatov) a copy of a non-public annual report from an American company.” The Podobnyy indictment notes that Page provided Podobnyy — someone he knew to be a foreign intelligence officer — documents about the energy business. The NYFO CI Agent’s description of Page’s, “continued contact with Russian intelligence officers” seems to suggest the person described as a Russian Minister is known or believed to be an intelligence officer (otherwise she would not have described this as ongoing contact).

Notably, NYFO’s focus was not on whether Page was engaged in political activities, whether he was a Sensitive Investigative Matter (SIM) or not. Indeed, at the time they opened the investigation in April 2016, they didn’t know he had a tie to the Trump campaign.

Rather, their focus was on whether Page, whose deployments in the Navy included at least one intelligence operation, had a security clearance, because that dictated whether the investigation into him would be an Espionage one or a Counterintelligence one. The actual type of investigation remains redacted (the word cannot be either “counterintelligence,” because of length, or “espionage” because the article preceding it forecloses the word starting with a vowel), but it is described as a counterintelligence investigation. Given the nature of the non-public information Page shared, that redacted word may pertain to economic information, perhaps to either 18 USC 1831 or 1832. Even going forward, NYFO was primarily interested in whether he would obtain a clearance that would increase the risk that the information he was happily sharing with known Russian intelligence officers would damage the US.

The counterintelligence case into Page was opened — and the FISA order targeting him was significantly predicated on — his voluntary sharing of non-public economic information with known Russian intelligence officers over a period of years. That’s almost certainly not a FARA investigation because at that point NYFO had no knowledge that Page was even engaging in politics.

And that’s important because of the IG Report’s analysis of whether and how obtaining a FISA order on Page implicated his First Amendment activities.

In its analysis of how FISA treats First Amendment activities, the Report includes the following discussion, once again citing FARA, relying on House and Senate reports on the original passage of FISA.

FISA provides that a U.S. person may not be found to be a foreign power or an agent of a foreign power solely upon the basis of activities protected by the First Amendment. 129 Congress added this language to reinforce that lawful political activities may not serve as the only basis for a probable cause finding, recognizing that “there may often be a narrow line between covert action and lawful activities undertaken by Americans in the exercise of the [F]irst [A]mendment rights,” particularly between legitimate political activity and “other clandestine intelligence activities. “130 The Report by SSCI accompanying the passage of FISA states that there must be “willful” deception about the origin or intent of political activity to support a finding that it constitutes “other clandestine intelligence activities”:

If…foreign intelligence services hide behind the cover of some person or organization in order to influence American political events and deceive Americans into believing that the opinions or influence are of domestic origin and initiative and such deception is willfully maintained in violation of the Foreign Agents Registration Act, then electronic surveillance might be justified under [“other clandestine intelligence activities”] if all the other criteria of [FISA] were met. 131

129 See 50 U.S.C. §§ 1805(a)(2)(A), 1824(a)(2)(A).

130 H. Rep. 95-1283 at 41, 79-80; FISA guidance at 7-8; see also Rosen, 447 F. Supp. 2d at 547-48 (probable cause finding may be based partly on First Amendment protected activity).

131 See S. Rep. 95-701 at 24-25. The Foreign Agents Registration Act, 22 U.S.C. § 611 et seq., is a disclosure statute that requires persons acting as agents of foreign principals such as a foreign government or foreign political party in a political or quasi-political capacity to make periodic public disclosure of their relationship with the foreign principal, as well as activities, receipts and disbursements in support of those activities.

The first citation to the House report says only that an American must be working with an intelligence service and must involve a violation of Federal criminal law, which may include registration statutes. The second citation says only that political activities should never be the sole basis of a finding of probable cause that a US person was an agent of a foreign power. Neither would apply to Carter Page, since the evidence against him also included sharing non-public information that had nothing to do with politics, and he shared that information with known intelligence officers.

The citation to the Senate report is a miscitation. The quoted language appears on page 29. The cited passage spanning pages 24 and 25, however, emphasizes that someone can only be targeted for activities that involve First Amendment activities if they involve an intelligence agency.

It is the intent of this requirement that even if there is some substantial contact between domestic groups or individual citizens and a foreign power, as defined in this bill, no electronic surveillance wider this subparagraph may be authorized unless the American is acting under the direction of an intelligence service of a foreign power.

With Page, the FBI had his admitted and sustained willingness to share non-public information with known intelligence officers, the Steele allegations suggesting he might be involved in a conspiracy tied to the hack and leak of Hillary’s emails, and his stated plans to set up a think tank that would serve as the kind of cover organization that would hide Russia’s role in pushing Page’s pro-Russian views.

The question of whether Page met probable cause for being a foreign agent doesn’t, in my mind, pivot on any analysis of First Amendment activities, because he had a clear, knowing tie with Russian intelligence officers with whom he was sharing non-public information. The question pivots on whether he could be said to doing so clandestinely, since he happily admitted the fact, if asked, to both the CIA and FBI. Both the Steele allegations (until such point, after his first application, that they had been significantly undermined) and Page’s enthusiasm to set up a Russian-funded think tank probably get beyond that bar.

And remember, for better and worse, this is probable cause, not proof beyond a reasonable doubt.

The DOJ IG Report analysis all seems premised on assessing FARA violations, not violations of 18 USC 951. That may be the appropriate lens through which to assess the actions of Papadopoulos, Flynn, and Manafort.

But the evidence presented in the report seems to suggest that’s a mistaken lens through which to assess the FISA application targeting Carter Page, the only Trump flunky who was so targeted. And given the evidence that at least some of the people who wrote the report did not understand how the two statutes overlap when they conducted the analysis, it raises real questions about whether all that analysis rests on mistaken understandings of the law.

Update: I’ve corrected the introduction of this to note that DOJ or FBI declassifies information, not DOJ IG.

OTHER POSTS ON THE DOJ IG REPORT

Overview and ancillary posts

DOJ IG Report on Carter Page and Related Issues: Mega Summary Post

The DOJ IG Report on Carter Page: Policy Considerations

Timeline of Key Events in DOJ IG Carter Page Report

Crossfire Hurricane Glossary (by bmaz)

Facts appearing in the Carter Page FISA applications

Nunes Memo v Schiff Memo: Neither Were Entirely Right

Rosemary Collyer Responds to the DOJ IG Report in Fairly Blasé Fashion

Report shortcomings

The Inspector General Report on Carter Page Fails to Meet the Standard It Applies to the FBI

“Fact Witness:” How Rod Rosenstein Got DOJ IG To Land a Plane on Bruce Ohr

Eleven Days after Releasing Their Report, DOJ IG Clarified What Crimes FBI Investigated

Factual revelations in the report

Deza: Oleg Deripaska’s Double Game

The Damning Revelations about George Papadopoulos in a DOJ IG Report Claiming Exculpatory Evidence

A Biased FBI Agent Was Running an Informant on an Oppo-Research Predicated Investigation–into Hillary–in 2016

The Carter Page IG Report Debunks a Key [Impeachment-Related] Conspiracy about Paul Manafort

The Flynn Predication

Sam Clovis Responded to a Question about Russia Interfering in the Election by Raising Voter ID

Matt Taibbi Attempts to Reinflate Patrick Byrne’s Maria Butina Story

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The buzz around Patrick Byrne’s story about having an affair with Maria Butina has almost entirely subsided.

In spite of the fact that folks have moved on, Matt Taibbi, claiming that he’s writing now because Byrne “is taking a beating in the press,” has decided to write up the story.

The tale is now out, and Byrne, whom I’ve known and liked for almost a decade, is taking a beating in the press. It’s unfortunate, and the import of his story is going unnoticed because reporters are focusing instead on Byrne’s eccentricities.

Taibbi reveals that, “Byrne came to me months ago,” which would mean Taibbi was, like Sara Carter, one of the journalists Byrne told about this during the summer, which makes a second journalist who had not covered the Butina prosecution to whom Byrne chose to make claims about the Butina prosecution.

Taibbi explains that he didn’t tell Byrne’s story earlier because he couldn’t confirm it. “Unable to confirm enough of his story, I ended up hesitating.” He also admits that Byrne’s, “hyperbolic storytelling needs to be sorted with care.”

So let’s look at how Taibbi “sorts with care” this story.

He gets one of Byrne’s hyperbolic storytelling references wrong, claiming Byrne used “Men in Black” to refer to the “senior federal law enforcement officials, who encouraged him to pursue a relationship with the Russian.” While Byrne has always said his reasons for using this term would become clear, they never are, but he does explain that the “Men in Black” are actually the line agents who — he’s sure — felt horrible about making the request for him to reengage Butina in July 2016.

I wish to emphasize this: the Men In Black are honorable men and women, and they were extremely discomfited by this request. There was no leering. They felt horrible. I think they wanted me to refuse it. They insisted that in their careers they heard never heard of such a request.

And Taibbi continues to struggle when he discusses counterintelligence.

Taibbi misuses the term “agent” (which in spying lingo is the person recruited, not the one doing the recruiting), while making a big show of not using it to refer to Butina, even though that’s the legal charge she pled guilty to. “(I’m not using the words ‘Russian agent’ because the term is misleading: Butina was not convicted of espionage).” He then calls the 18 USC 951 charge — with which Anna Chapman and Carter Page recruiter Victor Podobnyy were also charged with — a technicality.

However, the government never made an espionage case, charging her with an obscure technicality: acting as an unregistered foreign agent.

While we were discussing this on Twitter, Taibbi made a technicality argument Butina’s lawyers tried but failed to make during the prosecution, that this was just like a FARA violation.

Then Taibbi argues that the real scandal about this is that DOJ took ‘no real action … for nearly a year.”

Byrne’s claims would be explosive if true in the smallest part. For instance, the government asserted in Butina’s sentencing memorandum that her “actions had the potential to damage the national security of the United States.”

If Byrne told authorities about Butina in July, 2015, and no real action was taken for nearly a year, that would fly in the face of the government’s assertions at sentencing about the threat she posed.

Aside from how difficult counterintelligence investigations are and all the reporting that shows Obama didn’t respond aggressively enough to Russian efforts, Taibbi’s story explains what happened. And that’s that she tried to get close to a presidential candidate’s son, and all of a sudden her aggressive effort to get close to politicians began to look different, which is when FBI reportedly came back to Byrne and asked him to help gather more information.

Then there’s the documentary sources Taibbi relied on to carefully sort Byrne’s “hyperbolic storytelling:”

  1. The CNN and Fox coverage of Byrne
  2. An ABC report on the initial filing that suggested Butina was engaged in a utilitarian relationship with Paul Erickson that addresses both the claim the defense refuted and the one that the defense offered a far less convincing rebuttal of; it does not link the filing
  3. The CNN report saying that Robert Mueller interviewed Butina about JD Gordon
  4. Byrne’s father’s NYT obituary
  5. An SI report on Bison Dele’s murder
  6. A WSJ report on changes to short selling after 2008
  7. A link to the main FreedomFest site
  8. A Business Insider account of Trump’s speech at FreedomFest
  9. A link to the website for Butina’s gun rights organization
  10. A link to Rolling Stone’s coverage of Russia, generally
  11. A link to a subpage on CFR’s website
  12. A link to a NYT story that includes the picture of her posing with Don Jr
  13. A KY story of Butina’s NRA appearance from after she was arrested
  14. The government’s sentencing memo in Butina’s case
  15. A preview of Peter Strzok’s public congressional testimony that Taibbi claims also featured Lisa Page (Page testified privately in July 2018, but those transcripts were not released until March of this year, so if they changed Byrne’s mind about the investigation it raises interesting questions about who told him about her testimony)
  16. A report of a NYT report on the filing where prosecutors retracted one, but not the second, claim to substantiate Butina’s relationship with Paul Erickson was overblown (neither the report itself nor the NYT story link to the filing)
  17. A WaPo report on Judge Chutkan’s admonishment of prosecutors in a hearing where she nevertheless granted their motion to deny Butina bail; the story also described Chutkan criticizing Butina’s lawyers’ public characterizations about evidence
  18. A CO report on the offer to give Butina her own reality TV show
  19. A Newsweek report about a NYT story on Butina’s effort to get a jet fuel deal with an NRA official’s wife; Butina’s lawyer, Robert Driscoll, presumably has access to the emails the NYT story is based on, but appears not to have shared them with Taibbi
  20. A NYT Report on John Durham’s appointment to review how the Russian investigation (which Taibbi of course calls “Russiagate”) got opened
  21. A Market Watch report deeming Byrne’s story “one of his most bizarre statements yet”

21 links. That’s a lot! Except just one of them is to a filing from the case, and the three stories most critical to Taibbi’s points about Butina’s treatment by the press don’t link to court filings themselves, which takes some doing.

That’s utterly crucial, because Taibbi misunderstands how the question of Butina’s possible use of sex came up in the case (indeed, he miscites what the WaPo report on Chutkan said). It was not a document about her tradecraft. Rather, it was part of what prosecutors used to argue that her relationship with Paul Erickson was utilitarian and therefore she should be denied bail.

During the course of this investigation, the FBI has determined that Butina gained access through U.S. Person 1 to an extensive network of U.S. persons in positions to influence political activities in the United States. Butina, age 29, and U.S. Person 1, age 56, are believed to have cohabitated and been involved in a personal relationship during the course of Butina’s activities in the United States. But this relationship does not represent a strong tie to the United States because Butina appears to treat it as simply a necessary aspect of her activities. For example, on at least one occasion, Butina offered an individual other than U.S. Person 1 sex in exchange for a position within a special interest organization. Further, in papers seized by the FBI, Butina complained about living with U.S. Person 1 and expressed disdain for continuing to cohabitate with U.S. Person 1.

The second allegation in that paragraph — that she bitched to a friend about living with Erickson — was not credibly refuted by her lawyers. In the followup filing that Taibbi references in a link claiming that Chutkan “threw out the sex charge,” prosecutors note that,

Even granting that the government’s understanding of this particular text conversation was mistaken, other communications and materials in the government’s possession (and produced to the defense) call into doubt the defendant’s claim that her relationship with U.S. Person 1 is a sufficiently strong tie to ensure her appearance in court to face the charges against her if she is released.

Given Byrne’s claims to have told the FBI about his relationship with her before all this, the reference to her using sex and prosecutors’ suggestion it may have happened more than once appears to be parallel construction to hide something the FBI otherwise believed (that she had initiated a sexual relationship with someone Torshin sent her to meet at a time she was supposedly romantically committed to Erickson), but the source of which they were trying to keep secret.

Especially if Byrne described that sexual relationship to the FBI like he described it in his own account, by loading his description of how they first slept together with insinuations about how spectacular she is.

A gentleman does not normally say, but it would be ridiculous to omit, given how germane it is: when I arrived, Maria made immediately clear that she had not been pretending. She had indeed watched my videos, and thought I was pretty cool. She, the Greater Moscow Powerlifting Champion (amateur) swept me and my liberalism off my feet. I was helpless, helpless I say….

Well, not really. About the “helpless” part, anyway. The rest is true. And I will say this: Maria is a spectacular woman. An unforgettable woman. So as to avoid returning to the subject, I will state once that every tryst with Maria she astonished me with her intellect, character, and intentions for the world. Great props to Mother Russia, for producing such a daughter.

To keep Church Ladies from hammering me on message boards, and because it is relevant: For Maria’s part, she sounded like there were some big-shot Republicans in her life in America she was seeing, she was back and forth to Russia, nothing was too serious, etc. I didn’t really pry.

Taibbi’s story replicates such insinuation, quoting Byrne describing Butina as having “one in a million” drive and ability in the same sentence addressing the two becoming intimate.

Later, Butina and Byrne made an arrangement to meet in New York. “We became intimate,” he says. Byrne says Butina impressed him as a being “one in a million” in terms of her drive and ability.

If you’re trying to convince people a woman is not a trained Red Sparrow, separate your comments about how spectacular she is from your descriptions of how she seduced you. And if you describe her this way, don’t be surprised if the government then goes on to make similar insinuations in court documents.

In other words, it may well be that the government made this claim because of what they knew about the timing and specifics of Byrne’s sexual relationship with Butina.

Taibbi seems to believe that people didn’t take this story more seriously because journalists covering it had to address Byrne’s eccentricities, just like he had to. What he utterly misunderstands — perhaps because he relied on thirdhand reports of the investigation rather than the source documents — is that Byrne’s story makes Butina’s far more damning.

I don’t doubt the main thrust of Byrne’s claim, that he had a serial affair with Butina and after it had ended the FBI asked him to resume contact. I do, however, know (because I did cover the Butina prosecution) that his story that Butina told him Aleksandr Torshin sent her to seek out Byrne confirms parts of the allegations against Butina. And Byrne’s story completely undermines two claims Butina made as part of her defense: that she had no idea she needed to register as a foreign agent (he warned her she did) and that she was truly in love with Paul Erickson.

There may be real questions about what Byrne’s relationship was and why the government didn’t disclose it to Butina’s lawyers. But any story about those questions should — as I do here — mention that Driscoll didn’t do two things (ask in writing and ask the government’s witness at sentencing, who likely also knew about Byrne) to pursue those questions either. It suggests he suspected he might not like the answers he would get.

Plus, there’s the question about why, if Byrne changed from believing there was a 2/3 chance she was a spy in July 2018 when she got arrested and referred in terms that may reflect what he told the FBI to believing she wasn’t, he didn’t do something about it then.

But Byrne’s story actually makes the government allegations against Butina stronger, not weaker and none of Taibbi’s “careful sorting” of Byrne’s “hyperbolic storytelling” changes that.

Maria Butina’s Lawyer Changes His Story about Her Romance with Paul Erickson

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There are a number of inconsistencies and sketchy claims (about who he thinks was targeted by the FBI and the timing of his disclosures) in former Overstock CEO Patrick Byrne’s claims (Sara Carter’s story, NYT story, Fox Interview, Seth Hettena Q&A, Chris Cuomo interview) that he had been a “non-standard” informant for the FBI about Maria Butina.

The short version is that she sought him out in July 2015, telling him Aleksandr Torshin had asked her to do so, then started a sexual relationship with him, then later turned her attention to networking with presidential campaigns. All along the way, Byrne claims, he kept the FBI informed and acted on their requests regarding his relationship with Butina. Then, 9 months after she was arrested, in April 2019 and at a period too late to help her sentencing, he reached out to the FBI and first without counsel (in spite of his claim to Fox that a big Republican lawyer told him he’d go to jail for the rest of his life over this) and then with a lawyer told the FBI what had happened. He attributes coming forward to a conversation with Warren Buffet, though Buffet claims not to know what he was involved with.

I may return to the oddities in Byrne’s story.

For now, however, I’d like to examine what her lawyer Robert Driscoll has claimed about Byrne.

In a letter to John Durham, DOJ’s IG, and OPR (shared with Carter), Driscoll  suggested that he should have been provided details of what Byrne shared with the FBI as Brady information.

By email, letter, phone, and in person, the defense repeatedly pressed the government for any Brady material and was not provided any. In particular, we suggested to the government a strong suspicion that counterintelligence or other FBI investigators used confidential informants (“CIs”) in their investigation of Maria, and that information provided by such witnesses to the government might be relevant to guilt or sentencing. Moreover, we suggested that the government had presented Maria with one or more “dangles” — that is, orchestrated opportunities to provide the government  information unwittingly while being observed.

In writing, the government denied the existence of any such Brady material. Orally, during debrief sessions with Maria, I directly told the government that I believed Patrick Byrne, Chief Executive of Overstock.com, who had a sporadic relationship with Maria over a period of years prior to her arrest, was a government informant. My speculation was flatly denied. My associate Alfred Carry made similar assertions in a separate debrief that he covered and was also rebuffed.

Mr. Byrne has now contacted me and has confirmed that he, indeed, had a “non-standard arrangement” with the FBI for many years, and that beginning in 2015 through Maria’s arrest, he communicated and assisted government agents with their investigation of Maria. During this time, he stated he acted at the direction of the government and federal agents by, at their instruction, kindling a manipulative romantic relationship with her. He also told me that some of the details he provided the government regarding Maria in response was exculpatory — that is, he reported to the government that Maria’s behavior with him was inconsistent with her being a foreign agent and more likely an idealist and age-appropriate peace activist.

[snip]

Byrne evidently informed the government of many meetings with political and other figures that Maria had mentioned to him, often in advance of the meetings themselves. The government did not try to intervene or try to stop any meetings, nor did they express any concern. (This undercuts the government’s position at sentencing that Maria’s activities involved collection of information that could be of “substantial intelligence value to the Russian government” or pose a “serious potential to harm U.S. foreign policy interests and national security” as those same activities were observed and permitted for years.)

At some point prior to the 2016 election, when Byrne’s contact with Maria diminished or ceased, the government asked and encouraged him to renew contact with her and he did so, continuing to inform the government of her activities. Byrne states he was informed by government agents that his pursuit and involvement with Maria (and concomitant surveillance of her) was requested and directed from the highest levels of the FBI and intelligence community.

As time passed, Byrne became more and more convinced that Maria was what she said she was–an inquisitive student in favor of better U.S.-Russian relations–and not an agent of the Russian government or someone involved in espionage or illegal activities. He states he conveyed these thoughts and the corroborating facts and observations to the government.

Now, I absolutely don’t rule out the government withholding information that would be helpful to the defense. They do that far too often, and there are good reasons to doubt the prosecutors in this case. But Driscoll’s claim that this might be a Brady violation is premised on two things: first, that the FBI really considered Byrne an informant — which is what they denied when asked directly — and that the FBI considered anything he gave them to be exculpatory.

In fact, the story Byrne told is actually quite damning to Butina. From the very start, according to what he told Sara Carter, Butina was pursuing him, not vice versa. She told him, from the very start, she had been sent by Torshin and explained (credibly, given Putin’s interests) they were interested in Byrne because of his involvement in blockchain technology. And her offer of a trip to Russia with networking there matched her M.O. in approaching the NRA.

Byrne revealed details about his intimate relationship with the Russian gun right’s activist Butina. Byrne was a keynote speaker on July, 8, 2015 at Freedom Fest, a yearly Libertarian gathering that hosts top speakers in Las Vegas. Shortly after his address, Butina approached him. She told him she was the leader of a gun right’s organization in Russia. He congratulated her, spoke to her shortly, but then “brushed her off.”

The young redheaded Russian graduate student then approached him again over the course of the conference and explained that she worked for the Vice Chairman of the Central Bank of Russia and sent by them to make contact with Byrne.

She also said “Did you know you’re a famous man in Russia in certain circles? We watch your Youtube videos, we know about your relationship with Milton Friedman.”

She said she was appointed to lead Russia’s gun right’s group by Lieutenant-General Mikhail Kalashnikov, who was a Russian general, most notably known for his AK-47 machine gun design. Byrne says he considered the designation by Kalashnikov a significant honor, a signal of a kind he knows some mythical figures make on their way out. Byrne then had an “extensive conversation about Russian history and political situation.  Butina told him that the purpose of her visit was primarily to extend an invitation to Byrne to come to Russia to speak at the Central Bank. After that, there would be a trip to a major resort to meet with various intellectuals and dignitaries from the Russian power structure. Butina told Byrne the event would offer him the opportunity to meet senior Russian officials and oligarchs. She wanted to see Byrne again to start preparing him for such a trip.

Even more significantly, as Byrne tells it, after Butina first suggested she was using a romantic relationship with him as cover to explain their communications, she’s the one who first pushed sex.

He rented a hotel room with two bedrooms because he was under the impression that the romantic texts were simply her way to cover for communicating with him. However, she arrived at the hotel beforehand, occupied the room before Byrne’s arrival, and when he arrived,  she made clear that her flirtatious texts were not simply a disguise.

And Byrne claims he grew quite alarmed by Butina’s interest in networking with political campaigns.

“Eventually, her conversations became less about philosophy and it became clear that she was doing things that made me quite uncomfortable,” stated Byrne. “She was basically schmoozing around with the political class and eventually she said to me at one point I want to meet anyone in the Hillary campaign, the Cruz, the Rubio campaigns.”

Butina had also told Byrne, that Torshin, the Russian politician who she had been assisting while she was in the U.S., had sent her to the United States to meet other libertarians and build relations with political figures.

Byrne also claims he told Butina she needed to disclose her activities to the government, something that directly contradicts what Butina claimed repeatedly during the sentencing process, that, “If I had known to register as a foreign agent, I would have done so without delay.”

Byrne said he warned Butina: “Maria the United States is not like Russia, and knowing powerful people ‘like oligarchs and politicians’ won’t help if the FBI believes a line has been crossed.” Byrne believed Butina was naive but not blameless. He said during the interview, “If you’re reporting to any Russian official  as you’re doing this stuff and not disclosing yourself here, there are these men in black here and they don’t really give a shit who you know here -that’s not going to save you.”

It is true that Butina repeatedly told him she wasn’t a spy and Byrne ultimately became convinced that was true. But even in his description of that, he told Carter that he believed Butina was being used by US and Russian intelligence, not that he believed she had no tie to intelligence.

Although Byrne was concerned about Butina’s possible motives, he eventually became convinced that she was an intellectual being used by both the Russians and American intelligence apparatus. She was stuck between two highly contentious and secretive governments, he claimed. He relayed those concerns to the FBI, he said.

If that’s what he told the FBI, it does nothing to make her any less of an unregistered agent of Russia.

Very significantly, though, Butina’s involvement with Byrne during the period she was supposedly in a meaningful romantic relationship with Paul Erickson refutes the claims her attorneys have made about that relationship.

As I have laid out, from the very start, Driscoll portrayed the government’s claim that she caught Paul Erickson in a honey pot as sexism, with mixed success.

Then there’s the specific government insinuation that Butina was engaged in a honey pot operation. It substantiates this two ways — first, by suggesting she’s not that into Erickson.

Further, in papers seized by the FBI, Butina complained about living with U.S. Person 1 and expressed disdain for continuing to cohabitate with U.S. Person 1.

It also alleges she offered sex for favors.

For example, on at least one occasion, Butina offered an individual other than U.S. Person 1 sex in exchange for a position within a special interest organization.

Driscoll pretty convincingly argues the government misinterpreted this last bit.

The only evidence the government relied on for its explosive claim was an excerpt from an innocuous three-year-old text exchange (attached as Exhibit 3) sent in Russia between Ms. Butina and DK, her longtime friend, assistant, and public relations man for The Right to Bear Arms gun rights group that she founded.

DK, who often drove Ms. Butina’s car and thus was listed on the insurance, took the car for its annual government-required inspection and insurance renewal, and upon completion, texted (according to government translators), “I don’t know what you owe me for this insurance they put me through the wringer.” Ms. Butina jokingly replied, “Sex. Thank you so much. I have nothing else at all. Not a nickel to my name.” DK responded: “Ugh . . . ( ”—that is, with a sad face emoticon.

Aside from the fact that Maria is friends with DK’s wife and child and treats DK like a brother, the reference to sex is clearly a joke.

We still haven’t seen the government response to this, but what Driscoll presents does support his claim this is a “sexist smear.”

But Driscoll’s dismissal of the other claim — that Butina disdained living with Erickson — is far less convincing.

[I]n response to her girlfriend’s own complaints about her boyfriend’s failure to call in three weeks (accompanied by an angry face emoji) that Maria responds that her own boyfriend (Mr. Erickson) has been “bugging the sh*t out of me with his mom” and that she has “a feeling that I am residing in a nursing home.” “Send a link to the dating app[,]”

Driscoll spins this as an attack on Erickson’s now late mother, but doesn’t address the central allegation that she likened living with her much older boyfriend to living in a nursing home. Nor that she started the exchange by saying “let’s go have some fun with guys!!!” because she was “Bored. So there.” Furthermore, Butina seemed concerned that her use of Tinder would become public because she logged in using Facebook.

Though he has been sharing schmaltzy videos of Butina and Erickson with ABC, Driscoll also doesn’t address the fact that as early as May, Butina was proffering to flip on Erickson in fraud charges in South Dakota, which would have the effect of putting her in a position to negotiate permanent visa status independent of him, while limiting her own legal exposure.

Even in her sentencing memo — long after he knew of her relationship with Byrne, according to his public statements — Driscoll claimed she moved to the US in 2016 so she could be in the same hemisphere as Erickson.

On a personal level, Erickson and Maria kept in touch after the 2013 meeting and she began a romantic relationship with him in the following year.

[snip]

She also wished to be in the same hemisphere as her romantic interest. So Maria and Erickson explored both educational and business opportunities for her. This is the genesis of the Description of the Diplomacy Project proposal referenced in the Statement of Offense.

Among the events Butina planned to attend as part of that Diplomacy Project was the July 8-11 Freedom Fest convention where she first sought out Byrne. And before she moved to the US, she was already involved sexually with Byrne, according to his claims.

The portrayal of Butina’s relationship with Erickson as true romance has long been suspect — not only did she offer to flip on him in May 2018 (in exchange for which she might have gotten a permanent visa), but she did flip on him months before her plea deal. But if Byrne’s claims are true, it suggests she was using sexual relationships to help network in the US, and it further suggests Driscoll knew that when making claims about the import of her relationship with Erickson. If the FBI did obtain information from Byrne they chose (justifiably or not) not to release to defense attorneys, it might explain why they believed she was operating as a honey pot: because that’s what Byrne told them happened to him.

In his public comments to the NYT, Driscoll explained that Butina didn’t want to settle down (the implication is, with Byrne; he has claimed she wanted to settle down with Erickson).

“I think she admired him, but I don’t think she was looking to settle down,” Mr. Driscoll said.

In his comments to Carter, he suggests that he suspects there were other sources for the FBI.

Driscoll said there was suspicion that the FBI did not disclose all the information it had on Butina and he stated that he believed “Patrick is not the only one” who was giving information to the FBI.

“We’ve thought of several possibilities and some we are more confidant than others. I’m firmly convinced,” said Driscoll, who shared numerous letters and emails with this reporter that he exchanged with the FBI.

A seemingly disturbed homeless man, Hamdy Alex Abouhussein, who has asked to submit an amicus brief in Butina’s appeal (the public defender whom Judge Tanya Chutkan appointed to make sure that Driscoll had no conflicts when she pled guilty, AJ Kramer, is representing her in her appeal) claimed (incorrectly) that he’s the reason Butina got thrown into solitary and that FBI used Butina as a dangle to entrap him. So he also claims to have tried to provide exculpatory information.

Plainly, one cannot tell exactly when, before accepting Butina’s guilty plea, did Judge Chutkan learn of the jail’s blocking of Abouhussein’s letters to Butina, including his pictures, or the FBI dangle operation. Moreover, as the plea hearing transcript shows, Butina responded to the Judge’s sequence of questions about effectiveness of each of her then-three attorneys3, including the just-appointed for the plea negotiations role, A.J. Kramer4, who was yet to meet Abouhussein (they met outside the courtroom after the plea hearing, see pre-plea email from Abouhussein to Kramer, exh 2). Upon information and belief, Butina approved her attorneys’ performance only because they, under DOJ’s duress and a gag order, never informed her of the FBI dangle operation and surrendered to the prosecutors’ intimidation by keeping the dangle operation out of the public eye and trial record5. Admittedly, choice was either a rock or a hard place.

However, Judge Chutkan did sentence Butina to 18 months in prison after the notice of Abouhussein’s Amicus Brief Docket No. 77 was entered, which means Judge Chutkan was t/me/y presented with the “FBI dangle” and “letters blocked by Butina’s jail” Brady issues. Per Rule 51, this Honorable Court now has a lawful duty to investigate the issue of the FBI’s dangle operation that intentionally built up an oligarch-connected naive student as a false spy before casting her sex lure to hook the homeless Abouhussein, who was attending a public event at the Heritage Foundation to eat the free lunch as usual. Had he swallowed the lure6, any Grand Jury would indict this HamdySandwitch of a spy couple with ties to Putin, which explains Prosecutors’ honeypot sex allegations tainting Butina upon her arrest. Only in America!

So, yeah, there are other allegations, but Driscoll is right to suggest Byrne is more credible than, at least, this one.

But if Byrne’s story is credible, then it’s not clear that it helps Butina, at all, because it undermines the story her defense has been telling for a year.

Given her repeated assertions she’s happy with Driscoll’s representation, it’s unclear the basis for Butina’s appeal. I think the government operated in bad faith when they asked for 18 months, but that’s not a basis for an appeal. I think Driscoll made a mistake both by not arguing more forcibly that given the most relevant comparable sentence on 18 USC 951 charges, that of Carter Page recruiter Evgeny Buryakov’s 30 month sentence, a 9 month sentence would have been proportionate for someone like Butina who was neither recruiting nor operating covertly.

I also think that if Driscoll really cared about the declaration from former Assistant Director of FBI’s Counterintelligence Division, Robert Anderson Jr at her sentencing, he should have questioned what documents Anderson relied upon to judge that Butina was a spotter for Russian intelligence instead of deciding that, “I’m happy to leave the record as it is.” But if Driscoll had reason to believe the FBI had really damning information from Byrne that undercut his claims about Butina’s romance with Erickson, it might explain why he didn’t ask those questions.

The other day, Butina’s lawyer for her appeal AJ Kramer asked for an extension on his deadline to submit Butina’s appeal, which could mean he wants to add claims of Brady violations in her appeal (though he says he needs more time to consult the public record, and Driscoll and his associate Alfred Carry, by Driscoll’s own admission, never put their request for information about Byrne in writing).

But given Byrne’s public claims, it’s not actually clear that will help her case, as it mostly provides an explanation for why the FBI was so insistent on some of the allegations it did make.