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Bill Barr’s Bullshit Claim that Trump Obstructed the Investigation Out of Frustration and Anger

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I’ve grown increasingly bothered by the justification William Barr made for Trump’s obstruction of the Russian investigation. Basically, the Attorney General of the United States argued that because the President was “frustrated and angered” about the investigation into the Russian ties he kept lying about, his obstruction was not corrupt.

In assessing the President’s actions discussed in the report, it is important to bear in mind the context.  President Trump faced an unprecedented situation.  As he entered into office, and sought to perform his responsibilities as President, [1] federal agents and prosecutors were scrutinizing his conduct before and after taking office, and the conduct of some of his associates.  At the same time, there was relentless speculation in the news media about the President’s personal culpability.  Yet, as he said from the beginning, [2] there was in fact no collusion.  And as the Special Counsel’s report acknowledges, there is substantial evidence to show that the President was frustrated and angered by a sincere belief that the investigation was undermining his presidency, [3] propelled by his political opponents, and [4] fueled by illegal leaks.  Nonetheless, [5] the White House fully cooperated with the Special Counsel’s investigation, providing unfettered access to campaign and White House documents, [6] directing senior aides to testify freely, and asserting no privilege claims.  And at the same time, [7] the President took no act that in fact deprived the Special Counsel of the documents and witnesses necessary to complete his investigation. Apart from whether the acts were obstructive, this evidence of non-corrupt motives weighs heavily against any allegation that the President had a corrupt intent to obstruct the investigation.

There are, of course, a slew of errors in this passage, which I address by number.

  1. Federal Agents and prosecutors weren’t investigating the President until after he had committed several acts of obstruction
  2. The report doesn’t address collusion, it addresses a criminal conspiracy; Roger Stone’s actions, done at the behest of Trump, probably reach any measure for “collusion”
  3. There’s no evidence that the Steele dossier drove the FBI investigation — and certainly not the Mueller investigation that Trump obstructed
  4. The only leak that had a substantial effect on this investigation was the one about Flynn being picked on Sergei Kislyak’s FISA intercept, but it may not have been illegal (if John Brennan authorized the leak, for example, it would have been done with the consent of an original classification authority), and Flynn’s actions would have been included as part of the already-predicated counterintelligence investigation into him in any case
  5. Trump personally refused to cooperate with the investigation; his responses to Mueller’s questions are outright contemptuous
  6. Trump knew several of his aides were lying and encouraged that
  7. Trump was probably involved in withholding key emails about the Moscow Trump Tower project and probably had a role in attempts to withhold Transition emails possessed by GSA

But the thing that has really begun to irk me is the Attorney General’s claim that, “as the Special Counsel’s report acknowledges, there is substantial evidence to show that the President was frustrated and angered by a sincere belief that the investigation was undermining his presidency,” which is the core of Barr’s excuse for the President’s obstructive acts: the President was frustrated and so it’s cool that he totally undermined rule of law.

Barr is largely wrong about what the report says about the President’s anger and frustration, though, and to the extent he’s not, he’s basically arguing it’s cool for the President to be angry that the system worked as it should.

To show how much he exaggerates that, I reviewed below what the Mueller Report says about the President’s:

  • Frustrations
  • Anger
  • Motivations for obstructing the investigation

There are several categories of references that are on-point to Trump’s feelings about the investigation. In the two most persistent cases, Trump was angry that people engaged in ethical behavior. He was angry and frustrated that Jeff Sessions followed ethics guidelines and recused from the investigation.  He was angry that Comey adhered to DOJ guidelines (both general and specific with respect to this investigation) about confirming or denying targets of an investigation (though the report also describes Trump denying he was angry). So one category of evidence that shows Trump was angry or frustrated — which the Attorney General claims justifies his obstruction — involves Trump reacting emotionally because people did the ethically correct thing.

In one case, he was angry that his administration got caught doing something improper. Trump was angry that Mike Flynn’s totally inappropriate secret efforts to undermine Obama’s policy towards Russia got exposed. He also was angry at Flynn for other reasons, though. Yes, Trump may be right to be angry if this was illegally leaked (something that hasn’t yet been proven), but ultimately he’s pissed that he got caught doing something wrong.

In the sections that deal with Trump’s motives for obstructive acts, the report describes what might be described as frustration about two things. First, that the focus on Russia (both the investigation and the press coverage of it) delegitimized his victory. If Barr thinks this justifies obstruction of justice, it suggests that he thinks Trump is entitled — after having cheered Russia’s hacks of his opponent — not to have it reflect on his own victory. Effectively, the Attorney General seems to think Trump should be able to benefit from help from a foreign adversary — with his encouragement!! — and then have no one mention that, which is an alarming prospect.

The report also describes how Trump was frustrated that he was stymied in foreign policy, most especially in his desire to work with Russia, by the focus on the Russian investigation. This is particularly interesting, as some of the policies Trump was thwarted in pursuing — reversing sanctions on Russia — might have been proof of a quid pro quo (remember, Trump refused to answer all questions about sanctions, even one covering the election period). Given the report’s silence on the most alarming interactions with Trump (such as Putin’s involvement in writing the June 9 statement), there could be more to Trump’s frustrations, which any Attorney General pretending to care about American national security should attend to. In any case, while the Constitution permits the President great leeway to set the country’s foreign policy, it does expect the President will be subject to political pressure on those decisions. That Trump is frustrated that the manner in which he won — plus his encouragement of it and his subsequent lies about it — has constrained his ability to work with Russia is not something that should justify obstruction of justice.

Some of the other descriptions of Trump’s response to the investigation describe him making false claims — denying that Russia did the hack, preferred him, and also denying he had business with Russia. That is, Trump was not denying the allegations in the dossier, but was denying other things that were, in fact, true. That’s also not a basis to obstruct an investigation, that it will expose your lies.

For most of the instances after Trump himself became the subject of the investigation, the Mueller Report concludes Trump was motivated out of a desire to shield his own conduct — that is, pure corrupt obstruction.

In short, even to the extent that the Mueller Report confirms Barr’s claim that Trump was motivated out of frustration, in the most justifiable case (that Trump was prevented from working closely with Russia), Barr is excusing obstruction of justice because Trump got political pressure he deserved for his actions. But in most cases, Trump was frustrated by the ethical actions of others, that he got caught doing something wrong, that winning while cheering the interference of a hostile power aiming to help you undermines your legitimacy. That any lawyer would think such things — which basically amount to a democracy holding someone accountable — would justify obstruction of justice is downright insane.

Nevertheless, that’s where Attorney General Barr has taken us.

Frustration

Four of six references to frustration in the report describe Trump directly.

In the context of reaching out to WikiLeaks, one described Trump’s frustration that Hillary’s deleted emails had not been found.

Gates recalled candidate Trump being generally frustrated that the Clinton emails had not been found.

Chris Christie hypothetically describes Trump as being “frustrated” with the investigation.

The President asked Christie what he meant, and Christie told the President not to talk about the investigation even if he was frustrated at times.222

Trump was frustrated with Comey before his March 20 testimony, which got worse afterwards.

According to McGahn and Donaldson, the President had expressed frustration with Comey before his March 20 testimony, and the testimony made matters worse.318

Trump was frustrated that the Russian investigation made relations with Russia difficult.

The President expressed frustration with the Russia investigation, saying that it made relations with the Russians difficult.348 The President told Rogers “the thing with the Russians [wa]s messing up” his ability to get things done with Russia.349

Anger

The following are the nine of ten references to “angry” and all eleven references to “anger” in the Report involve Trump directly.

A double instance describes Trump being angry — but he was angry that the WaPo had correctly reported that Flynn undermined Obama’s sanctions on Russia. Trump is described another time as being angry that Flynn’s actions were exposed.

On January 12, 2017, a Washington Post columnist reported that Flynn and Kislyak communicated on the day the Obama Administration announced the Russia sanctions. 122 The column questioned whether Flynn had said something to “undercut the U.S. sanctions” and whether Flynn’s communications had violated the letter or spirit of the Logan Act. 123

President-Elect Trump called Priebus after the story was published and expressed anger about it. 124 Priebus recalled that the President-Elect asked, “What the hell is this all about?”125 Priebus called Flynn and told him that the President-Elect was angry about the reporting on Flynn’s conversations with Kislyak. 126 Flynn recalled that he felt a lot of pressure because Priebus had spoken to the “boss” and said Flynn needed to “kill the story.” 127

The President paid careful attention to negative coverage of Flynn and reacted with annoyance and anger when the story broke disclosing that Flynn had discussed sanctions with Kislyak.

Trump was angry with Flynn that his behavior with Sergey Kislyak was causing him trouble again.

The President instructed McGahn to work with Priebus and Bannon to look into the matter further and directed that they not discuss it with any other officials. 154 Priebus recalled that the President was angry with Flynn in light of what Yates had told the White House and said, “not again, this guy, this stuff.” 155

Trump was also angry at Flynn for other things, including his stupid spawn.

Hicks said that the President thought Flynn had bad judgment and was angered by tweets sent by Flynn and his son, and she described Flynn as “being on thin ice” by early February 2017.

The Report describes Trump being angry at Jeff Sessions four times for following DOJ guidelines on recusal.

Hicks recalled that after Sessions recused, the President was angry and scolded Sessions in her presence, but she could not remember exactly when that conversation occurred.

The President became angry and lambasted the Attorney General for his decision to recuse from the investigation, stating, “How could you let this happen, Jeff?”505

And after Sessions announced his recusal on March 2, the President expressed anger at the decision and told advisors that he should have an Attorney General who would protect him. That weekend, the President took Sessions aside at an event and urged him to “unrecuse.”

The President became very upset and directed his anger at Sessions.393 According to notes written by Hunt, the President said, “This is terrible Jeff. It’s all because you recused.

Trump was also angry at McGahn because Sessions recused.

The President expressed anger at McGahn about the recusal and brought up Roy Cohn, stating that he wished Cohn was his attorney.294

One instance reports Trump denying that he fired Comey because he was angry about the Russian investigation.

The next day, the President acknowledged in a television interview that he was going to fire Comey regardless of the Department of Justice’s recommendation and that when he “decided to just do it,” he was thinking that “this thing with Trump and Russia is a made-up story.” In response to a question about whether he was angry with Comey about the Russia investigation, the President said, “As far as I’m concerned, I want that thing to be absolutely done properly,” adding that firing Comey “might even lengthen out the investigation.”

But two other references describes Trump being angry that Comey complied with DOJ guidelines and instructions and did not specifically say Trump was not under investigation.

After Comey publicly confirmed the existence of the FBT’s Russia investigation on March 20, 2017, the President was “beside himself’ and expressed anger that Comey did not issue a statement correcting any misperception that the President himself was under investigation.

But during his May 3 testimony, Comey refused to answer questions about whether the President was being investigated. Comey’s refusal angered the President, who criticized Sessions for leaving him isolated and exposed, saying “You left me on an island.

Trump claimed others were angry that Hillary was not being investigated.

On October 29, 2017, the President tweeted that there was “ANGER & UNITY” over a “lack of investigation” of Clinton and “the Comey fix,” and concluded: “DO SOMETHTNG!”756

Trump claimed others were angry because Mike Flynn was prosecuted for lying to the FBI and DOJ.

On December 15, 2017, the President responded to a press inquiry about whether he was considering a pardon for Flynn by saying, “I don’t want to talk about pardons for Michael Flynn yet. We’ll see what happens. Let’s see. I can say this: When you look at what’s gone on with the FBI and with the Justice Department, people are very, very angry.”845

Trump twice accused Mueller’s prosecutors of being angry (and being Democrats).

On July 31, 2018, Manafort’s criminal trial began in the Eastern District of Virginia, generating substantial news coverage.862 The next day, the President tweeted, “This is a terrible situation and Attorney General Jeff Sessions should stop this Rigged Witch Hunt right now, before it continues to stain our country any further. Bob Mueller is totally conflicted, and his 17 Angry Democrats that are doing his dirty work are a disgrace to USA!”86

“While the disgusting Fake News is doing everything within their power not to report it that way, at least 3 major players are intimating that the Angry Mueller Gang of Dems is viciously telling witnesses to lie about facts & they will get relief. This is our Joseph McCarthy Era!” @rea!DonaldTrump 11/28/ 18 (8:39 a.m. ET) Tweet.

Motivations

As far as motive, the report has several discussions of Trump’s motives after every act of obstruction it analyzes, but it also suggests that those motives are different before and after he fired Comey and made himself a focus of the investigation.

Although the series of events we investigated involved discrete acts, the overall pattern of the President’s conduct towards the investigations can shed light on the nature of the President’s acts and the inferences that can be drawn about his intent. In particular, the actions we investigated can be divided into two phases, reflecting a possible shift in the President’s motives. The first phase covered the period from the President’s first interactions with Comey through the President’s firing of Come. During that time, the President had been repeatedly told he was not personally under investigation. Soon after the firing of Comey and the appointment of the Special Counsel, however, the President became aware that his own conduct was being investigated in an obstruction-of-justice inquiry. At that point, the President engaged in a second phase of conduct, involving public attacks on the investigation, non-public efforts to control it, and efforts in both public and private to encourage witnesses not to cooperate with the investigation. Judgments about the nature of the President’s motives during each phase would be informed by the totality of the evidence.

The Flynn section includes a passage that describes Trump being angry that Russia’s interference tainted his own victory.

Evidence does establish that the President connected the Flynn investigation to the FBI’s broader Russia investigation and that he believed, as he told Christie, that terminating Flynn would end “the whole Russia thing.” Flynn’s firing occurred at a time when the media and Congress were raising questions about Russia’s interference in the election and whether members of the President’s campaign had colluded with Russia. Multiple witnesses recalled that the President viewed the Russia investigations as a challenge to the legitimacy of his election. The President paid careful attention to negative coverage of Flynn and reacted with annoyance and anger when the story broke disclosing that Flynn had discussed sanctions with Kislyak. Just hours before meeting one-on-one with Corney, the President told Christie that firing Flynn would put an end to the Russia inquiries.

The confirmation of the investigation section includes a lot of language about protecting himself but also concern about the legitimacy of his victory and his ability to work with Russia.

Evidence indicates that the President was angered by both the existence of the Russia investigation and the public reporting that he was under investigation, which he knew was not true based on Comey’s representations. The President complained to advisors that if people thought Russia helped him with the election, it would detract from what he had accomplished.

Other evidence indicates that the President was concerned about the impact of the Russia investigation on his ability to govern. The President complained that the perception that he was under investigation was hurting his ability to conduct foreign relations, particularly with Russia. The President told Coats he “can’t do anything with Russia,” he told Rogers that “the thing with the Russians” was interfering with his ability to conduct foreign affairs, and he told Corney that “he was trying to run the country and the cloud of this Russia business was making that difficult.”

The Comey firing passage does suggest Trump was frustrated he couldn’t work with Russia, but also shows that he had reason to worry an investigation would show he had broken the law, and he worried the investigation would delegitimize his victory.

We also considered why it was important to the President that Comey announce publicly that he was not under investigation. Some evidence indicates that the President believed that the erroneous perception he was under investigation harmed his ability to manage domestic and foreign affairs, particularly in dealings with Russia. The President told Comey that the “cloud” of “this Russia business” was making it difficult to run the country. The President told Sessions and McGahn that foreign leaders had expressed sympathy to him for being under investigation and that the perception he was under investigation was hurting his ability to address foreign relations issues. The President complained to Rogers that “the thing with the Russians [ was] messing up” his ability to get things done with Russia, and told Coats, “I can’t do anything with Russia, there’s things I’d like to do with Russia, with trade, with ISIS, they’re all over me with this.” The President also may have viewed Comey as insubordinate for his failure to make clear in the May 3 testimony that the President was not under investigation.

[snip]

As described in Volume I, the evidence uncovered in the investigation did not establish that the President or those close to him were involved in the charged Russian computer-hacking or active-measure conspiracies, or that the President otherwise had an unlawful relationship with any Russian official. But the evidence does indicate that a thorough FBI investigation would uncover facts about the campaign and the President personally that the President could have understood to be crimes or that would give rise to personal and political concerns. Although the President publicly stated during and after the election that he had no connection to Russia, the Trump Organization, through Michael Cohen, was pursuing the proposed Trump Tower Moscow project through June 2016 and candidate Trump was repeatedly briefed on the ro ress of those efforts.498 In addition, some witnesses said that Trump was aware that [redacted] at a time when public reports stated that Russian intelligence officials were behind the hacks, and that Trump privately sought information about future WikiLeaks releases.499 More broadly, multiple witnesses described the President’s preoccupation with press coverage of the Russia investigation and his persistent concern that it raised questions about the legitimacy of his election.500

The report describes his efforts to fire Mueller, efforts to limit the scope of Mueller’s investigation, attacks on Sessions, and attempt to get McGahn to write a false statement denying he tried to fire Mueller as an effort to stop the investigation into himself for obstruction.

Substantial evidence indicates that the President’s attempts to remove the Special Counsel were linked to the Special Counsel’s oversight of investigations that involved the President’s conduct- and, most immediately, to reports that the President was being investigated for potential obstruction of justice.

Substantial evidence indicates that the President’s effort to have Sessions limit the scope of the Special Counsel’s investigation to future election interference was intended to prevent further investigative scrutiny of the President’s and his campaign’s conduct.

There is evidence that at least one purpose of the President’s conduct toward Sessions was to have Sessions assume control over the Russia investigation and supervise it in a way that would restrict its scope.

Substantial evidence indicates that in repeatedly urging McGahn to dispute that he was ordered to have the Special Counsel terminated, the President acted for the purpose of influencing McGahn ‘s account in order to deflect or prevent further scrutiny of the President’s conduct towards the investigation.

The report explains that Trump wrote the June 9 statement in an attempt to avoid public disclosure about the meeting.

The evidence establishes the President’s substantial involvement in the communications strategy related to information about his campaign’s connections to Russia and his desire to minimize public disclosures about those connections.

While the analysis on floating a pardon for Flynn is inconclusive and that on Stone is redacted, the report does say that Trump floated a pardon to Manafort to encourage him not to cooperate and also to influence his jury.

Evidence concerning the President’s conduct towards Manafort indicates that the President intended to encourage Manafort to not cooperate with the government.

And the report concludes that Trump’s efforts to discourage Cohen from cooperating were an attempt to cover up Trump’s own conduct during the campaign.

In analyzing the President’s intent in his actions towards Cohen as a potential witness, there is evidence that could support the inference that the President intended to discourage Cohen from cooperating with the government because Cohen’s information would shed adverse light on the President’s campaign-period conduct and statements.

Update: Fixed mention of Trump Tower meeting when I meant Trump Tower Moscow.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Why Trump Believed He Could Withhold the June 9 Email: Because He Succeeded in Withholding Moscow Trump Tower Ones

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In this post, I showed that I was correct when I wrote, back in January, that the Trump Organization did not turn over all the documents requested in the House Intelligence Committee subpoena to Michael Cohen. Trump Organization withheld — from HPSCI and from Cohen — the email that shows Dmitry Peskov’s office did respond to Cohen’s request for help (as well as emails showing that he kept trying to reach Peskov’s office).

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

I also showed that Trump’s sworn response to a Mueller question about all this replicates the lies that Cohen told in his false statement to Congress.

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

[snip]

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

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

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

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

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

All that’s important background for something explained in the Mueller Report: that it was Trump — not Hope Hicks (as Mark Corallo feared) — who planned to withhold the thread of emails setting up the June 9 meeting to hide that Don Jr had accepted dirt from the Russian government. In the weeks before the NYT learned of the emails, Trump repeatedly tried to insulate himself from being shown the emails and said that “just one lawyer should deal with the matter” to prevent them from leaking.

According to Hicks, Kushner said that he wanted to fill the President in on something that had been discovered in the documents he was to provide to the congressional committees involving a meeting with him, Manafort, and Trump Jr.678 Kushner brought a folder of documents to the meeting and tried to show them to the President, but the President stopped Kushner and said he did not want to know about it, shutting the conversation down.679

On June 28, 2017, Hicks viewed the emails at Kushner’s attorney’s office.680 She recalled being shocked by the emails because they looked “really bad.”681 The next day, Hicks spoke privately with the President to mention her concern about the emails, which she understood were soon going to be shared with Congress.682 The President seemed upset because too many people knew about the emails and he told Hicks that just one lawyer should deal with the matter.683 The President indicated that he did not think the emails would leak, but said they would leak if everyone had access to them.684

Later that day, Hicks, Kushner, and Ivanka Trump went together to talk to the President.685 Hicks recalled that Kushner told the President the June 9 meeting was not a big deal and was about Russian adoption, but that emails existed setting up the meeting.686 Hicks said she wanted to get in front of the story and have Trump Jr. release the emails as part of an interview with “softball questions.”687 The President said he did not want to know about it and they should not go to the press.688 Hicks warned the President that the emails were “really bad” and the story would be “massive” when it broke, but the President was insistent that he did not want to talk about it and said he did not want details.689 Hicks recalled that the President asked Kushner when his document production was due. 690 Kushner responded that it would be a couple of weeks and the President said, “then leave it alone.”691 Hicks also recalled that the President said Kushner’s attorney should give the emails to whomever he needed to give them to, but the President did not think they would be leaked to the press.692 Raffel later heard from Hicks that the President had directed the group not to be proactive in disclosing the emails because the President believed they would not leak.693

When the NYT reached out to the White House for the story, Trump uncharacteristically told Hicks not to comment for the story.

On July 7, 2017, while the President was overseas, Hicks and Raffel learned that the New York Times was working on a story about the June 9 meeting.695 The next day, Hicks told the President about the story and he directed her not to comment.696 Hicks thought the President’s reaction was odd because he usually considered not responding to the press to be the ultimate sin.697

Then, when Trump, who was with Hicks, was chewing Mark Corallo out for the counter-statement he released, Hicks, “channel[ed] the President” by saying that the email would never get out.

The next day, July 9, 2017, Hicks and the President called Corallo together and the President criticized Corallo for the statement he had released.721 Corallo told the President the statement had been authorized and further observed that Trump Jr. ‘s statement was inaccurate and that a document existed that would contradict it.722 Corallo said that he purposely used the term “document” to refer to the emails setting up the June 9 meeting because he did not know what the President knew about the emails.723 Corallo recalled that when he referred to the “document” on the call with the President, Hicks responded that only a few people had access to it and said “it will never get out.”724 Corallo took contemporaneous notes of the call that say: “Also mention existence of doc. Hope says ‘ only a few people have it. It will never get out.”‘725 Hicks later told investigators that she had no memory of making that comment and had always believed the emails would eventually be leaked, but she might have been channeling the President on the phone call because it was clear to her throughout her conversations with the President that he did not think the emails would leak.726

In the period when the Joint Defense Agreement was trying to respond to Congressional requests for documents on Trump’s ties to Russia, the President’s response was to argue that “just one lawyer should deal with the matter” to ensure that the emails did not get out.

That lawyer is Alan Garten.

We know that because in Cohen’s March 6 testimony to the House Intelligence Committee, he described that Alan Garten and Alan Futerfas were in charge of document collection for the Trump Organization.

THE CHAIRMAN: A number of those emails were never turned over to our committee in the document production. Do you know who was responsible for the document production and who would have withheld those documents from this committee?

MR. COHEN: Alan Futerfas and Alan Garten.

More specifically, Cohen’s February 28 testimony to the House Intelligence Committee, he described a meeting he had with Garten on document production. He was telling the story to explain that at the meeting, Garten told Cohen enough for him to figure out that Trump was the one who drafted the false statement on the June 9 meeting.

THE CHAIRMAN: You mentioned a meeting also with Alan Garten?

MR. COHEN: Yes, sir.

THE CHAIRMAN: And can you tell us who that is?

MR. COHEN: Alan Garten is now general counsel at The Trump Organization, And prior to that, he was assistant general counsel.

THE CHAIRMAN: You referenced that in the context of this also raised your suspicion of collusion. What in particular were you referring to?

MR. COHEN: My conversation with Alan Garten was in regard to, I believe, this committee’s subpoena where they wanted all of my contacts from the Trump Org server. And in order to limit the amount, because there were about 10,000, he brought to me a stack of pages and wanted me to go through each one of those email addresses to the best of my ability to mark off which ones were family, which ones were friends, which ones related to Trump Org business, which ones were just solicitations, Google alerts, et cetera. We started to engage in conversation, because at the time the news cycle was all over the allegation that the conversation going back and forth was about adoption. And I said, well, what’s going on? Tell me what happened. So he told me that he was with Don Jr. and that they were communicating back and forth with Air Force One. And he goes, you know how it gets, back and forth and back and forth. He goes, it was such a process. That was the conversation with Alan Garten.

THE CHAIRMAN: And tell me what raised your suspicion about that conversation.

MR. COHEN: lt was about how to describe the meeting, the Trump Tower meeting, as to whether it was about obtaining dirt on Hillary Clinton or it was about adoption. And what he expressed to me is that, you know, Mr. Trump drafted the first round, and it came to Don and him, and then they sent it back, and back and forth.

THE CHAIRMAN: So what he described to you was Mr. Trump’s participation in the creation of a false statement about what took place in that meeting?

MR. COHEN: Yes, that’s how he described it. Well, that’s how I understood it.

But the point of the meeting was to begin the document response process from Trump Organization that resulted in the most damning emails — emails that would prove false the story Cohen and the Trump family lawyers planned to tell about the Trump Tower Moscow deal — being withheld.

In the March 6 one, Adam Schiff got Cohen to repeat that the reason he and Garten were having this conversation in the first place is because Garten was pulling documents to reply to Congressional requests.

Q Well, let me ask it a different way. What was the purpose of him showing you your contacts and other documents?

A The Trump Organization received a subpoena in order to turn over documents, and since I had no documents, everything being in their custody and control, they wanted the contacts to be limited to, I suspect, non-business-related, you know, removal, family removal emails that are not pertaining to the investigation.

Q So the purpose of the meeting was to discuss a document production that The Trump Organization needed to provide?

A Correct.

Q And was it to provide to this committee?

A I don’t know which committee, but I suspect it was all the committees.

Q All right. And do you recall that the false statement that Don Jr. issued about the Trump Tower meeting that was discussed on Air Force One, do you recall that happened in approximately June of 2017?

A I believe so.

Garten was with Don Jr in person as they worked back and forth with Hope Hicks and Donald Trump on Air Force One to draft the June 9 meeting that Trump wanted to lie about by making sure the email didn’t leak.

There were no lawyers on Air Force One. This is the conversation that, in his appearances before Congress, Don Jr successfully avoided discussing because he was with his lawyer. But no privilege should have attached to that conversation because Garten did not represent Trump personally (Trump was supposed to be walled off from Trump Organization matters), much less Hope Hicks.

In June 2017, when Donald Trump was trying to sustain a false story about the June 9 meeting by suggesting that if just one lawyer dealt with the matter, the email disproving that story would not be “leaked,” Alan Garten was ensuring that the email disproving Michael Cohen’s false story did not get turned over to Congress.

That’s why Trump thought he’d get away with the lie. Because he almost got away with it on the Trump Tower Moscow story.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

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

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

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

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

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

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

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

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

ii. Did you sign the letter of intent?

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

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

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

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

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

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

In response, Trump wrote three paragraphs.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A That’s accurate.

[snip]

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

A I do not.

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

A I also do not.

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

A I do not

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

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

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

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

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

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

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

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

A About this specific email? I did not

Q Never?

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

Q When was that?

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

[snip]

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

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

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

MR. COHEN: lt was in person.

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

MR. COHEN: Right afterwards.

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

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

[snip]

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

MR. COHEN: Yes.

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

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

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

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

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

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Chuck Ross Gets Pissy about Russian Disinformation

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I noted a while back that after covering the dossier full time, Chuck Ross had finally figured out it might be Russian disinformation.

In his coverage of the then State Department Deputy Assistant Secretary of State for European and Eurasian Affairs notes of a briefing from Christopher Steele, he continues that beat, but proves himself to utterly misunderstand the significance of disinformation — and do some of his most dishonest reporting to boot.

The notes from Kathleen Kavalec, which Citizens United liberated and which have been feeding the frothy right and the credulous left for a week, show that she recognized the raw intelligence she was being briefed on had problems, most notably in the claim that payments to a network of Russians in the US were paid out of the Russian Consulate in Miami — a consulate that Kavalec notes in her own notes does not exist (though which is curiously in the same place as Roger Stone).

That said, there are parts of it that actually accord with what we know: that Dmitry Peskov was in the loop, that the election year operation was not run by FSB, and that Russian thought they could keep this operation anonymous but failed. Even the claim that Carter Page was involved is more credible than the actual dossier claims about him, given that when he was in Russia, according to the Mueller Report, Peskov considered meeting with Page but then said,

“I have read about [Page]. Specialists say that he is far from being the main one. So I better not initiate a meeting in the Kremlin.”

The most ridiculous thing in Kavalec’s notes are how the Trump Tower-Alfa Bank-Spectrum Health hoax had gotten into the Christoper Steele reporting chain, which I correctly laid out in March 2017. As Steele (or Jonathan Winer, who may have briefed Kavalec in a game of telephone) understood it, the DNS look ups included Tor and was used by Paul Manafort to communicate with Alfa. That makes the entire story even stupider than it always has been, both on technical grounds (which in turn suggests Steele doesn’t understand computers, which is apparent from every single one of his cybersecurity reports), on logistics (why would Paul Manafort communicate from his Trump Tower condo via a server in Pennsylvania), and Manafort’s own habits (we know him to use foldering and WhatsApp, not Tor).

In other words, Kavalec’s notes, which show either the even rawer  intelligence on which Steele based his raw intelligence reports or a game of telephone that inserted errors at each re-telling, show them to be at once shittier and in a few areas also potentially more accurate than the dossier itself.

It’s on a different area — Kavalec’s citation of Putin advisor Vladislav Surkov and former head of SVR Vyacheslav Trubnikov where Ross totally blows how disinformation works.

Ross takes these Kavalaec notes…

Which get translated into this typed summary by Kavalaec:

And he invents from that that Vyacheslav Trubnikov and Vladislav Surkov are sources, for Steele, for the pee tape allegation.

In her notes, State Department official Kathleen Kavalec also referred to the two Russians — former Russian foreign intelligence chief Vyacheslav Trubnikov and Putin aide Vladislav Surkov — as “sources.”

The references to Trubnikov and Surkov, which have not previously been reported, are not definitive proof that either were sources for Steele’s dossier or that they were involved in an effort to collect blackmail material on Trump.

[snip]

Trubnikov and Surkov are not identified by name in Steele’s dossier, which the FBI used as part of its investigation into possible collusion between the Trump campaign and Russia. But the information that the former British spy attributed to the two Russians involves the dossier’s most salacious allegation: that the Russian government had sexually compromising material on Trump.

Kavalec’s notes said Steele claimed Trump was “filmed engaged in compromising activities” with Russian prostitutes in 2013, but that “the Russians have not needed to use the ‘kompromat’ on [Trump] as he was already in cooperation.”

Steele, who operates a private intelligence firm in London, told Kavalec that Putin and some of his top advisers were running the Trump operation.

“Presidential Advisor Vladislov Surkov and Vyasheslov Trubnikov (former head of Russian External Intelligence Service — SVR) are also involved,” wrote Kavalec, who served as deputy assistant secretary of state for European and Eurasian issues.

Kavalec’s handwritten notes also contain a reference to Trubnikov and Surkov as “sources,” but with no additional explanation.

Trubnikov served as head of Russia’s for

eign intelligence service, SVR, from 1996 to 2000. He went on to serve as first deputy for foreign affairs and ambassador to India.

The unverified allegations of sexual blackmail material on Trump are included in the June 20, 2016, memo from Steele’s dossier. Steele had been hired that same month by Fusion GPS, an opposition research firm the DNC and the Clinton campaign paid to investigate Trump.

Citing “a former top level Russian intelligence officer still active inside the Kremlin,” Steele claimed Russian authorities had gathered a substantial amount of “embarrassing material” on Trump and would “be able to blackmail him if they so wished.”

It is difficult to know how to interpret Steele’s claims about Trubnikov and Surkov, given the numerous problems that have emerged with the former British spy’s reporting.

As a threshold matter, this is a gross misreading of Kavalec’s notes. As Ross screencaps, her actual notes put Trubnikov and Surkov’s names under a July heading. The pee tape appears just once in the Steele dossier, in a report dated June 20, 2016. So if Trubnikov and Surkov were sources for Steele in July, they could not be the sources for the pee tape allegation. Moreover, Trubnikov and Surkov appear on a separate page from the reference to the Ritz in her original notes that would reflect a pee tape discussion, and she seems to say the source for that allegation is complicated.

But at least as Kavalec renders the reference to Trubnikov and Surkov in her typed summary of her own notes — which is where Ross gets the claim they’re sources for the pee tape — they are not sources for Steele but instead participants in the election year operation.

Steele stressed that while Trump was filmed in compromising activities with prostitutes in the Ritz Carlton, the Russians have not needed to use that “kompromat” on him as h was already interested in cooperation. (Steele said he is persuaded the story about the prostitutes is accurate because they had their source speak with hotel contacts who confirmed 1) that the FBS was in the hotel while Trump was there and 2) Trump regularly availed himself of prostitutes while in Moscow.) Steele indicated that this operation is run by the Kremlin — former Kremlin COS Sergey Ivanov, Dmitry Peskov and President Putin — and not the FSB. Presidential Advisor Vladislov [sic] Surkov and Vyacheslov [sic] Trubnikov (former head of Russian External Intelligence Service — SVR) are also involved.

Indeed, per Kavalec’s notes, Steele had just one source for the pee tape allegation, not two.

So Ross is, for starters, misreading what Kavalec’s notes say (which is not to say her own rendering of the notes — in either her handwritten notes or typed up summary — is accurate; this is ultimately a giant game of telephone).

But then, in a long piece that includes two paragraphs on how the Mueller Report debunked “Steele’s core claim of a ‘well-developed conspiracy’ between the Trump campaign and the Kremlin,” Ross doesn’t mention what the Report says about the pee tape.

The special counsel’s report all but debunked Steele’s core claim of a “well-developed conspiracy” between the Trump campaign and Kremlin. The report also said Michael Cohen did not visit Prague, which is where Steele claimed the former Trump lawyer met with Kremlin insiders to pay off computer hackers. (RELATED: Mueller Report Undercuts Several Steele Dossier Claims)

Public evidence has not backed up other allegations, including about “kompromat” on Trump. The president has vehemently denied the sex tape claim, and individuals who were with Trump during his Moscow trip have cast doubt on the allegation, saying Trump had virtually no time to take part in the steamy activities described by Steele.

The pee tape is the dossier claim that the Mueller Report most directly corroborates (though, given that Mueller never figured out what Manafort was doing sharing polling data he knew would be shared with Oleg Deripaska, in part because of Trump’s obstruction, we can’t discount the possibility he was coordinating more directly).

In the guise of explaining why Trump may have reacted badly when Jim Comey briefed him on the dossier, Mueller explained how Giorgi Rtskhiladze called Michael Cohen just before the election to assure him that he had “stopped flow of tapes from Russia,” which Rtskhiladze took to mean kompromat from the same 2013 trip Steele said the kompromat came from.

Comey’s briefing included the Steele reporting’s unverified allegation that the Russians had compromising tapes of the President involving conduct when he was a private citizen during a 2013 trip to Moscow for the Miss Universe Pageant. During the 2016 presidential campaign, a similar claim may have reached candidate Trump. On October 30, 20 I 6, Michael Cohen received a text from Russian businessman Giorgi Rtskhiladze that said, “Stopped flow of tapes from Russia but not sure if there’s anything else. Just so you know …. ” 10/30/16 Text Message, Rtskhiladze to Cohen. Rtskhiladze said “tapes” referred to compromising tapes of Trump rumored to be held by persons associated with the Russian real estate conglomerate Crocus Group, which had helped host the 2013 Miss Universe Pageant in Russia. Rtskhiladze 4/4/18 302, at 12. Cohen said he spoke to Trump about the issue after receiving the texts from Rtskhiladze. Cohen 9/12/18 302, at 13. Rtskhiladze said he was told the tapes were fake, but he did not communicate that to Cohen. Rtskhiladze 5/10/18 302, at 7.

Rtskhiladze has complained about how Mueller’s team portrayed this. But not only does his complaint contradict itself on the key issue of whether the tapes were real or not, it actually provides more reason to question whether the tapes exist or not (as Rtskhiladze worked so hard to deny he had seen them).

I’m not saying the tapes exist — but that’s the point about Russian disinformation, they don’t have to exist. There are four possibilities at this point:

  1. Steele made up the allegation, which no one is alleging
  2. The tape exists but is actually doctored to falsely claim either that Trump was sleeping with prostitutes or was engaging in kink in the Ritz Carlton
  3. The tape exists and is real
  4. The tape doesn’t exist, but someone lied when they told Steele’s source about it, and  Rtskhiladze or someone in his orbit heard of that lie (perhaps by Steele blabbing his mouth in DC) and Rtskhiladze repeated the lie to try to ingratiate himself to Cohen and make Trump fear the Agalarovs (which is who Rtskhiladze claimed had the tapes)

If you believe the dossier is substantially Russian disinformation, then either 2 or 4 are possibilities. Either one, though, changes the import of Russian disinformation, because it shows that Russia was just as happy to target Trump with disinformation in 2016 as they were with Hillary (something I strongly believe to be true).

That possibility would totally fuck with Chuck’s story — which also entails making much of the mention of the fact that Stefan Halper, someone the US government paid to collect intelligence on people including Russians, invited Trubnikov to an event where Halper might collect information from him.

Virtually all the denialists argue that we should not talk about how the pee tape appears in the Mueller Report, even though both Cohen and Rtskhiladze — seemingly independently — seem to have the same understanding of what those text messages relate to, even though both have said that they don’t believe the tapes to actually exist.

For Chuck Ross, the possibility that the Russians might actually use disinformation to manipulate Trump independent of any disinformation fed to Steele would totally fuck up his narrative, even though it is fundamental to the likelihood that the Russians fed Steele disinformation.

Chuck wants this to feed his partisan narrative that the Democrats — in compiling the same kind of oppo research that Steve Bannon did with Clinton Cash — did something bad (they did something incompetent, which is different) and the Russians capitalized on that to make Trump look bad (with information that, in significant parts, alleges things that really happened, but with other people involved). But real or fake, the pee tape referenced by Rtskhiladze undermines that narrative. It means that Russians were happy to sow disinformation targeting everyone.

Unsurprisingly, then, Chuck remains silent about it.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

The Scope and Results of the Mueller Report

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There’s a Twitter account, TrumpHop, that tweets out Donald Trump’s tweets from years earlier, which is a really disorienting way to remind yourself how crazy he’s been since he’s been on Twitter. This morning, it recalled that two years ago today, Trump was inventing excuses for having shared highly classified Israeli intelligence at the same meeting where he boasted to Sergei Lavrov that he fired Jim Comey a week earlier because of the Russian investigation.

Two years ago, Rod Rosenstein — the same guy who stood, mostly stoically, as a prop for Bill Barr’s deceitful press conference spinning the Mueller Report one last time before releasing it — was in a panic, trying to decide what to do about a President who had fired the FBI Director to end an investigation into what might be real counterintelligence compromise on his part by a hostile foreign country and then went on to share intelligence with that same hostile foreign country. Tomorrow is the two year anniversary of Mueller’s appointment.

As I noted days after the Mueller Report was released, it is utterly silent on that sharing of information and two of the other most alarming incidents between Trump and Russia (though that may be for sound constitutional, rather than scope reasons) — Trump’s conversation with Putin about the subject of his own June 9 false statement even as he was drafting that statement, and the Helsinki meeting. That said, it cannot be true that Mueller didn’t consider those counterintelligence issues, because his treatment of Mike Flynn would have been far different if he didn’t have good reason to be sure — even if he deliberately obscures the reasons why he’s sure in the report — that Flynn, at the time under active counterintelligence investigation for his suspect ties to Russia, wasn’t entirely freelancing when he undermined US policy to offer sanctions considerations to Russia on December 29, 2016.

Nevertheless, a rising cry of people are suggesting that because we weren’t told the results of the counterintelligence investigation (whether it included the President or, because of constitutional reasons, did not), Mueller did not conduct a counterintelligence investigation. He (and, especially, FBI Agents working alongside him) did. Here’s what the report says, specifically, about the FBI writing up CI and Foreign Intelligence reports to share with the rest of FBI.

From its inception, the Office recognized that its investigation could identify foreign intelligence and counterintelligence information relevant to the FBI’s broader national security mission. FBI personnel who assisted the Office established procedures to identify and convey such information to the FBI. The FBI’s Counterintelligence Division met with the Office regularly for that purpose for most of the Office’s tenure. For more than the past year, the FBI also embedded personnel at the Office who did not work on the Special Counsel’s investigation, but whose purpose was to review the results of the investigation and to send-in writing-summaries of foreign intelligence and counterintelligence information to FBIHQ and FBI Field Offices. Those communications and other correspondence between the Office and the FBI contain information derived from the investigation, not all of which is contained in this Volume. This Volume is a summary. It contains, in the Office’s judgment, that information necessary to account for the Special Counsel’s prosecution and declination decisions and to describe the investigation’s main factual results.

Mueller didn’t report on it, as he states explicitly, because that’s outside the scope of what he was required and permitted to report under the regulations governing his appointment, which call for a prosecutions and declinations report.

That’s just one of the misconceptions of the scope, intent, and results of the Mueller Report that persists (and not just among the denialist crowd), almost a month after its release.

The Mueller Report does not purport to tell us what happened — that would be a violation of the regulations establishing the Special Counsel. It only describes the prosecutorial and declination decisions. The scope of those decisions includes:

  • Who criminally conspired in two Russian election interference efforts (just one American was charged, but he did not know he was helping Russians troll the US)
  • Whether Trump’s associates were agents of a foreign power in violation of FARA or 18 USC 951, including whether they were agents of Ukraine (as Paul Manafort and Rick Gates were before the election), Israel (as lots of evidence suggested George Papadopoulos might have been), Turkey (as Mike Flynn admitted he had been during and for a short while after the election), as well as Russia
  • Whether Trump’s associates conspired with Russia in some way; Mueller’s review included a quid pro quo, but his prosecutorial decisions did not include things unrelated to Russia’s election interference (which might, for example, include pure graft, including during the Transition period or related to the inauguration)
  • Which of Trump’s associates got charged with lying (Flynn, Papadopoulos, Michael Cohen, Roger Stone), were ruled by a judge to have lied (Paul Manafort), and which lied but were not charged (at least three others, including KT McFarland) in an effort to obstruct the investigation
  • Whether accepting a meeting offering dirt as part of the Russian government’s assistance to Trump or optimizing WikiLeaks’ release of emails stolen by Russia to help Trump’s campaign amount to accepting illegal donations from foreigners
  • Whether Trump’s numerous efforts to undermine the investigation amount to obstruction

Two facts necessarily follow from Mueller’s limit in his report to prosecutorial decisions rather than describing what happened, both of which are explained on page 2 of the report (though even the Attorney General, to say nothing of the denialist crowd, appears not to have read that far). First, Mueller did not weigh whether Trump “colluded” with Russia, because that’s not a crime that could be prosecuted or declined.

In evaluating whether evidence about collective action of multiple individuals constituted a crime, we applied the framework of conspiracy law, not the concept of “collusion.” In so doing, the Office recognized that the word “collud[e]” was used in communications with the Acting Attorney General confirming certain aspects of the investigation’s scope and that the term has frequently been invoked in public reporting about the investigation. But collusion is not a specific offense or theory of liability found in the United States Code, nor is it a term of art in federal criminal law.

Because “collusion” is not a crime, Mueller could not weigh in one way or another without being in violation of the regulations underlying his appointment. Mind you, Bill Barr could have changed these reporting requirements if he wanted and asked Mueller to comment on “collusion.” He did not.

In addition, Mueller’s measure was always whether his investigation “established” one or another crime. But stating that he did not establish a crime is not the same as saying there was no evidence of that crime.

A statement that the investigation did not establish particular facts does not mean there was no evidence of those facts.

Mueller describes in very general way that he didn’t get all the information he’d have liked to weigh whether or not conspiracy was committed.

The investigation did not always yield admissible information or testimony, or a complete picture of the activities undertaken by subjects of the investigation. Some individuals invoked their Fifth Amendment right against compelled self-incrimination and were not, in the Office’s judgment, appropriate candidates for grants of immunity. The Office limited its pursuit of other witnesses and information–such as information known to attorneys or individuals claiming to be members of the media–in light of internal Department of Justice policies. See, e.g. , Justice Manual §§ 9-13.400, 13.410. Some of the information obtained via court process, moreover, was presumptively covered by legal privilege and was screened from investigators by a filter (or “taint”) team. Even when individuals testified or agreed to be interviewed, they sometimes provided information that was false or incomplete, leading to some of the false-statements charges described above. And the Office faced practical limits on its ability to access relevant evidence as well-numerous witnesses and subjects lived abroad, and documents were held outside the United States.

Further, the Office learned that some of the individuals we interviewed or whose conduct we investigated–including some associated with the Trump Campaign—deleted relevant communications or communicated during the relevant period using applications that feature encryption or that do not provide for long-term retention of data or communications records. In such cases, the Office was not able to corroborate witness statements through comparison to contemporaneous communications or fully question witnesses about statements that appeared inconsistent with other known facts.

More specifically, we know this language covers at least the following limits on the investigation:

  • Encryption or evidence destruction prevented Mueller from clarifying details of the handoff to WikiLeaks, Gates’ sharing (on Manafort’s orders) of polling data with Russia, Manafort’s communications with various people, and Erik Prince and Steve Bannon’s communications about the Seychelles meeting with Kirill Dmitriev
  • Mueller did not pursue the role of Trump and other associates’ lawyers’ substantial, known role in obstruction
  • Mueller likely did not pursue an interview with Julian Assange (and other media figures), because that would violate US Attorney Handbook warnings against compelling the sharing of journalism work product to investigate a crime related to that work product
  • Some foreigners avoided cooperating with the investigation by staying out of the country; Emin Agalarov canceled an entire US tour to avoid testifying about what kind of dirt he offered Don Jr
  • Both Donald Trumps refused to be interviewed
  • President Trump refused to answer all questions pertaining to his actions after inauguration, all but one question about the Transition, and all questions about sanctions; his other answers were largely contemptuous and in a number of cases conflict with his own public statements or the testimony of his associates

Finally a more subtle point about the results, which will set up my next post. Mueller clearly states that he did not establish a conspiracy between Trump’s people and the Russian government on election interference. By definition, that excludes whatever coordination Roger Stone had with WikiLeaks (and even with the extensive redactions, it’s clear Mueller had real First Amendment concerns with charging that coordination). But whereas Mueller said that the contacts between Trump’s associates and Russians did not amount to a crime, he suggested that the two campaign finance issues he explored — the June 9 meeting and the release of stolen emails — were crimes but not ones he could sustain a conviction for.

The Office similarly determined that the contacts between Campaign officials and Russia-linked individuals either did not involve the commission of a federal crime or, in the case of campaign-finance offenses, that our evidence was not sufficient to obtain and sustain a criminal conviction.

The gaps in evidence that Mueller was able to collect strongly impact this last judgment: as he laid out, he needed to know what Don Jr understood when he accepted the June 9 meeting, and without interviewing either Emin Agalarov and/or Jr, he couldn’t get at Jr’s understanding of the dirt offered.

As I’ve noted repeatedly, it is absolutely false to claim –as Attorney General Barr did — that Mueller’s report says there was no underlying crime to cover up with Trump’s obstruction. Mueller specifically mentions SDNY’s prosecution of Trump’s hush payments to Stormy Daniels and Karen McDougal, a crime which was charged, and which was one of the explicit purposes behind the raid on Cohen’s home and office. And as such, that crime is pertinent to the pardon dangle for Cohen.

In January 2018, the media reported that Cohen had arranged a $130,000 payment during the campaign to prevent a woman from publicly discussing an alleged sexual encounter she had with the President before he ran for office.1007 This Office did not investigate Cohen’s campaign period payments to women. 1008 However, those events, as described here, are potentially relevant to the President’s and his personal counsel’s interactions with Cohen as a witness who later began to cooperate with the government.

But with regards to the Russian-related campaign finance investigation, Mueller describes that Trump may have believed those would be criminal.

[T]he evidence does indicate that a thorough FBI investigation would uncover facts about the campaign and the President personally that the President could have understood to be crimes or that would give rise to personal and political concerns.

The distinction about whether a crime was committed versus whether it was charged may be subtle. But it is an important one for the obstruction investigation. And as I’ll show, that may have interesting repercussions going forward.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Trump’s Never-Declined Invitation from Deputy Prime Minister Sergei Prikhodko

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In an interview with NYT last year, George Papadopoulos claimed that he had a call scheduled with Stephen Miller on April 27, 2016, when he probably would have told him that Joseph Mifsud had just told him that Russians had dirt on Hillary Clinton in the form of thousands of emails they planned to drop anonymously to help Donald Trump. But the call didn’t go through.

PAPADOPOULOS: That’s all I can say. I mean, actually, and the reason why I don’t know how much wiggle room — I don’t think I’m really leaving myself any wiggle room at all because probably 99 percent of my communication with the campaign was over email. You know, I was living in London. You know, I met some officials face to face very briefly. So the place I would have potentially sent this information — I think it’s public — I mentioned to Stephen Miller I’m receiving interesting messages from Moscow about a meeting, when the time is right. That was the same day that I had received that information. I think I had a scheduled call with Miller that same day, never went through, and perhaps that’s where it went. It just stayed in my mind.

[Later in the interview.]

MAZZETTI: One of the things that seems the most puzzling out of this whole Trump-Russia story is that you’re told about this pretty explosive information. It is information that would no doubt help the Trump campaign. You wanted to help the Trump campaign. You were very eager to gain, cement, a place in the campaign. And yet, you say you didn’t tell anyone about it but you did tell the Australian diplomat and the Greek foreign minister. Seems strange for people to sort of —

PAPADOPOULOS: I allegedly told the Australian, and I certainly told the Greek foreign minister, but let’s not forget, though, at the time I was shuffling between Europe quite frequently. I wasn’t at a campaign headquarters, where I would have the opportunity to sit down and probably talk with campaign heads. So, I actually I don’t find it shocking that I wouldn’t have told them something like this, considering my interactions with the campaign was, as I stated, probably 99 percent done via email. And maybe — you never know — maybe if the call between myself and Stephen Miller occurred that day, I would have told him. But that call never went through, and we’re left with receiving interesting messages from Moscow. It’s how fate works sometimes, I guess.

According to his statement of offense, after his second interview with the FBI, he got a new phone number, suggesting he ditched his cell phone.

On or about February 23, 20 17, defendant PAPADOPOULOS ceased using his cell phone number and began using a new number.

According to the government’s sentencing memo in his case, Papadopoulos hid the existence of a different phone he used to communicate with Mifsud while in London until his fourth and final interview with the FBI.

The defendant also did not notify the government about a cellular phone he used in London during the course of the campaign – that had on it substantial communications between the defendant and the Professor – until his fourth and final proffer session.

This was a guy working pretty hard to hide his communications — including any he had on encrypted apps that would bypass his phone company.

Which is why I find details about the Trump Organization response — or rather, non-response — to an invitation from Russia’s Deputy Prime Minister, Sergei Prikhodko, to attend the St. Petersburg International Economic Forum, the same event Cohen was supposed to attend to arrange the Trump Tower Moscow deal.

Here’s what the timeline of that invitation looks like, according to the Mueller Report (starting at page 78 of Volume I).

December 21, 2015: Mira Duma emails Ivanka passing along Prikhodko’s invite as an attachment

January 7, 2016: Ivanka forwards email to Rhona Graff

January 14, 2016: Graff replies to Duma by email saying Trump would have to decline because of his travel schedule, asking whether she should send a formal declination

January 15, 2016: Duma replies that a formal denial note would be appropriate

March 17, 2016 (according to Trump’s written response, though no email is cited in the report): Prikhodko emails Graff again inviting Trump to SPIEF

March 31, 2016: Graff prepares a two-paragraph letter declining the invitation and forwards it to another assistant to have Trump sign it, which he doesn’t sign

March 31, 2016: Robert Foresman follows up a phone introduction by Mark Burnett with an email to Graff, explaining that he had set up a back channel between George W Bush and Putin and discussing an “approach” by “senior Kremlin officials” asking for a meeting with Lewandowski about topics he did not want to include on an unsecure email

March 31, 2016: At a meeting of Trump’s foreign policy advisors, he responds favorably to Papadopoulos’ pitch to set up a meeting between Trump and Putin

April 4, 2016: Graff forwards that email to the same assistant who had put the invitation declination on letterhead

April 26, 2016: Foresman reminds Graff

April 27, 2016: Graff forwards the initial March 31 email and the April 26 email to Lewandowski

April 27, 2016: Papadopoulos emails Miller, “Have some interesting messages coming in from Moscow about a trip when the time is right”

April 27, 2016: Papadopoulos emails Lewandowski,  “to discuss Russia’s interest in hosting Mr. Trump. Have been receiving a lot of calls over the last month about Putin wanting to host him and the team when the time is right”

April 30, 2016: Foresman reminds Graff again, suggesting a meeting with Don Jr or Eric Trump, so he could convey information that “should be conveyed to [the candidate] personally or [to] someone [the candidate] absolutely trusts”

May 2, 2016: Graff forwards the April 30 email to Stephen Miller

May 4, 2016: Cohen tells Sater he would travel before the RNC in July, and Trump would “once he becomes the nominee after the convention”

May 5, 2016: Sater extends invitation purportedly from Peskov to SPIEF

Ultimately, there’s no record Trump did decline the invitation from Prikhodko (nor does the report cite the email he purportedly sent to Graff). Nor does the report describe what happened after Foresman’s invite got sent to Miller.

But it does show that in the wake of Papadopoulos purportedly failing to tell Miller the Russians were offering dirt, he was the guy Lewandowski wanted to field an offer a possible back channel with Russia.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Giorgi Rtslchiladze’s Honor Has Been Sullied because He Can’t Decide Whether He Knows the Tapes He Suppressed Exist or Not

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The image for this post is associated with this post.

Giorgi Rtslchiladze believes his honor has been sullied by Robert Mueller.

Rtslchiladze is a naturalized American businessman from Georgia who shows up several times in the Mueller Report.

First, the section that describes Michael Cohen’s attempts to negotiate a Trump Tower deal explains that Cohen pitched Rtslchiladze on a Trump Tower deal in fall 2015, before deciding to pursue the Sater deal instead.

Also during the fall of 2015, Cohen communicated about the Trump Moscow proposal with Giorgi Rtslchiladze, a business executive who previously had been involved in a development deal with the Trump Organization in Batumi, Georgia.313 Cohen stated that he spoke to Rtskhiladze in part because Rtskhiladze had pursued business ventures in Moscow, including a licensing deal with the Agalarov-owned Crocus Group.314 On September 22, 2015, Cohen forwarded a preliminary design study for the Trump Moscow project to Rtskhiladze, adding “I look forward to your reply about this spectacular project in Moscow.” Rtskhiladze forwarded Cohen’s email to an associate and wrote, “first we could organize the meeting in New York at the highest level of the Russian Government and Mr. Trump this project would definitely receive the worldwide attention.”315 On September 24, 2015, Rtskhiladze sent Cohen an attachment that he described as a proposed “[l]etter to the Mayor of Moscow from Trump org,” explaining that “[w]e need to send this letter to the Mayor of Moscow (second guy in Russia) he is aware of the potential project and will pledge his support.”316 In a second email to Cohen sent the same day, Rtslchiladze provided a translation of the letter, which described the Trump Moscow project as a “symbol of stronger economic, business and cultural relationships between New York and Moscow and therefore United States and the Russian Federation.”317 On September 27, 2015, Rtslchiladze sent another email to Cohen, proposing that the Trump Organization partner on the Trump Moscow project with “Global Development Group LLC,” which he described as being controlled by Michail Posikhin, a Russian architect, and Simon Nizharadze.318 Cohen told the Office that he ultimately declined the proposal and instead continued to work with I.C. Expert, the company represented by Felix Sater.319

313 Rtskhiladze was a U.S.-based executive of the Georgian company Silk Road Group. In approximately 2011, Silk Road Group and the Trump Organization entered into a licensing agreement to build a Trump-branded property in Batumi, Georgia. Rtskhiladze was also involved in discussions for a Trum -branded ro’ect in Astana, Kazakhstan. The Office twice interviewed Rtskhiladze, [redacted]

The details on this second Trump Tower deal show that at some of the initiative for an election season Trump Tower deal came from Trump, not the Russians. This Rtskhiladze deal is noteworthy because he pursued (note the word) deals in the past with the Crocus Group — the Agalarov company — and because Mueller at least suggests he doesn’t entirely buy Rtslchiladze’s representation of the ownership of Global Development Group. Note that Rtskhiladze himself promised Cohen he had ties to the Mayor of Moscow.

An interview with Rtskhiladze is also footnoted in a discussion of Trump Organization’s decision to close out certain business deals in the wake of the election.

After the election, the Trump Organization sought to formally close out certain deals in advance of the inauguration.945

945 Cohen 9/18/18 302, at 1-2; see also Rtskhiladze 4/4/18 302, at 8-9.

The report doesn’t explain why Trump Org would have any open business deals with Rtskhiladze in November 2016.

Note that Silk Road Group is funded by Kazakh bank BTA group, payments to Michael Cohen from which were one of the reasons Mueller investigated him in the first place (and which has sued Felix Sater for attempting to launder funds through a Trump Tower deal).

It’s the second mention of Rtskhiladze that has sullied his name, according to reports and a letter his attorney sent Bill Barr asking for a retraction (Rtskhiladze’s attorney, A. Scott Bolden, works for the same firm, ReedSmith, that is engaging in a trollish defense of Concord Management; the letter he released to the press is actually a revised version of one he sent the day before).

As part of an explanation of why Jim Comey briefed Trump on the Steele dossier on January 6, 2017, a footnote explains that Rtskhiladze texted Cohen about compromising tapes in October 2016.

112 Comey 1/7/17 Memorandum, at 1-2; Comey 11/15/17 302, at 3. Comey’s briefing included the Steele reporting’s unverified allegation that the Russians had compromising tapes of the President involving conduct when he was a private citizen during a 2013 trip to Moscow for the Miss Universe Pageant. During the 2016 presidential campaign, a similar claim may have reached candidate Trump. On October 30, 20 I 6, Michael Cohen received a text from Russian businessman Giorgi Rtskhiladze that said, “Stopped flow of tapes from Russia but not sure if there’s anything else. Just so you know …. ” 10/30/16 Text Message, Rtskhiladze to Cohen. Rtskhiladze said “tapes” referred to compromising tapes of Trump rumored to be held by persons associated with the Russian real estate conglomerate Crocus Group, which had helped host the 2013 Miss Universe Pageant in Russia. Rtskhiladze 4/4/18 302, at 12. Cohen said he spoke to Trump about the issue after receiving the texts from Rtskhiladze. Cohen 9/ 12/ 18 302, at 13. Rtskhiladze said he was told the tapes were fake, but he did not communicate that to Cohen. Rtskhiladze 5/10/18 302, at 7.

As I read it, the entire point of including this reference is not to substantiate the existence of a pee tape. Rather, it’s to explain why Trump may have believed in the existence of one. It actually provides one explanation that makes Trump’s response to Comey’s briefing (as reflected in Comey’s own notes on it) less incriminating, not least his oblique reference to the Stormy Daniels and Susan McDougal allegations.

After all, the communications between Rtskhiladze and Cohen on October 30, 2016 would have happened just days after Cohen paid off Stormy Daniels on October 27. It would be unsurprising if Cohen discussed both with Trump at the same time.

Rtskhiladze is  complaining about a number of things. Some of them are fair complaints about how his communications with Cohen were portrayed in the footnote.

  • Referring to Rtskhiladze as a “Russian” businessman, his lawyer claims, it “implies he participated in a conspiracy to collude or interfere with the 2016 U.S. presidential elections.”
  • Quoting from the texts in isolation, “the isolated texts are suggestive of nefarious undertakings and, as such, defame Mr. Rtskhiladze’s character. Viewing the texts in their entirety against the backdrop of Mssrs. Cohen and Rtskhiladze’s cordial relationship places them in their proper context.”
  • Quoting the “‘Stopping the flow’ gives the impression that you are referencing the alleged salacious content of the alleged acts viewed on the tapes. To the contrary, this was a colloquialism by Mr. Rtskhiladze indicating that there was nothing to the rumors of the tapes, and that he did not believe there were any tapes, nor had he seen what was on the tapes, even if they existed.”
  • Misquoting the text without the word “some” — making the correct quote “stopped flow of some tapes from Russia.” Bolden claims, illogically, that the word some “is crucial as it establishes the fact that Mr. Rtskhiladze had no knowledge of the tapes’ content.”

That last bullet point, of course, makes zero sense. From there, the letter gets even more self-contradictory. Bolden first claims,

The texts that were excised from the Mueller Report clearly indicate that Mr. Rtskhiladze does not have direct knowledge of what was said at the party in Moscow, which he did not attend. Mr. Rtskhiladze also does not know and cannot identify who allegedly made the statements about the tapes. Furthermore, Mr. Rtskhiladze has never seen the tapes and cannot opine on whether they exist. [my emphasis]

Just a few paragraphs after claiming that Rtskhiladze does not know whether the tapes he assured Cohen he had suppressed existed or not, his attorney then claims that he knew the tapes did not exist.

The suggestion that Mr. Rtskhiladze tried to curry favor with Mr. Cohen, the Trump Organization and possibly President Trump himself by allegedly texting that he had “stopped the flow of tapes from Russia” — knowing all the while that the tapes did not exist — is an outrageous and sensation distortion of the communications between Mssrs. Cohen and Rtskhiladze.

Footnote 112 of the Mueller Report would  have the world believe that Mr. Rtskhiladze is at best a caricature of an idle gossip or, worse, an opportunist with deep ties to the Russian business community2 and privy to untoward conduct by President Trump that Mr. Rtskhiladze and others intended to use to embarrass then Candidate Trump, derail his campaign and/or manipulate him after assuming the elected office. There is not a scintilla of evidence to support these inferences and to suggest otherwise is defamatory. [my emphasis]

Footnote 2 in this passage references the other discussions of Rtskhiladze in the report, which show him telling Cohen he had ties to (among others) the Mayor of Moscow; Rtskhiladze doesn’t contest that he has the ties laid out on those sections.

I mean, Bolden is right: these texts do suggest that Rtskhiladze is either a gossip or, more likely, trying to capitalize on information he claimed to not only know about, but be able to affect.

But he’s not actually offering a less damning explanation for them.

What he has done, however, is to call far more attention to them, all in a way that purports to assail Mueller’s credibility, but instead raises even more questions about the relationship between him and Cohen.

Finally, Bolden issues a non-denial denial of having ties with Crocus.

In a similar vein, Mr. Rtskhiladze has not had contact or dealings with the Crocus Group in 14 years, although he considers Crocus a reputable and successful business group. It is inaccurately stated that Mr. Rtskhiladze had a licensing deal with the Crocus Group.

As I noted above, the report doesn’t claim that Rtskhiladze had a licensing deal, it said he was pursuing one. And there’s nothing about this non-denial denial that might suggest Rtskhiladze heard a rumor that — say — fellow Georgian-American Ike Kaveladze was bragging about some compromising tapes, and he made an effort to chase it down.

So one other possible purpose of Bolden’s efforts to impugn Mueller’s integrity all while bringing more publicity to the incident that he claims makes his client look bad is to try to diminish any ill-will the Agalarovs feel towards Rtskhiladze.

Ultimately, though, Rtskhiladze’s lawyer is making thoroughly contradictory claims about this incident rather than offering a less damning explanation of it.

Update: I engaged with the spokesperson for Rtskhiladze, and specifically mentioned the inconsistency between his claim that he didn’t know if the video existed and that he affirmatively did not know. She said that was a typo, and promised to write the most up-to-date statement, but did not send anything.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

 

The Significance of Trump’s Obstruction of Investigation of His Family’s Campaign Finance Crimes, Plural

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In the Barr Memo usurping Congress’ role in determining whether the evidence presented in the Mueller Report amounts to obstruction, he based a lot of his judgment finding no obstruction on the fact that Mueller “did not establish” that Trump and his campaign conspired with Russia.

In making this determination, we noted that the Special Counsel recognized that “the evidence does not establish that the President was involved in an underlying crime related to Russian election interference,” and that, while not determinative, the absence of such evidence bears upon the President’s intent with respect to obstruction.

The line is unbelievably cynical for several reasons. First, right at the beginning of the report, Mueller points out that his use of “did not establish” does not mean “there was no evidence.”

A statement that the investigation did not establish particular facts does not mean there was no evidence of those facts.

Yet in spite of that warning, Barr nevertheless claims that Mueller’s observation that he did not establish Trump’s involvement in a crime related the Russia’s election interference amounts to an “absence of such evidence.”

Moreover, Barr takes that quote out of the context of Mueller’s discussions about the corrupt motives that Trump might have to obstruct the investigation. (I’ve bolded the actual sentence Barr quotes, but included both of Mueller’s discussions of Trump’s implication in potential crimes.)

In addition, the President had a motive to put the FBI’s Russia investigation behind him. The evidence does not establish that the termination of Comey was designed to cover up a conspiracy between the Trump Campaign and Russia: As described in Volume I, the evidence uncovered in the investigation did not establish that the President or those close to him were involved in the charged Russian computer-hacking or active-measure conspiracies, or that the President otherwise had an unlawful relationship with any Russian official. But the evidence does indicate that a thorough FBI investigation would uncover facts about the campaign and the President personally that the President could have understood to be crimes or that would give rise to personal and political concerns. Although the President publicly stated during and after the election that he had no connection to Russia, the Trump Organization, through Michael Cohen, was pursuing the proposed Trump Tower Moscow project through June 2016 and candidate Trump was repeatedly briefed on the progress of those efforts.498 In addition, some witnesses said that Trump was aware that [redacted] at a time when public reports stated that Russian intelligence officials were behind the hacks, and that Trump privately sought information about future WikiLeaks releases.499 More broadly, multiple witnesses described the President’s preoccupation with press coverage of the Russia investigation and his persistent concern that it raised questions about the legitimacy of his election.500

[snip]

Second, many obstruction cases involve the attempted or actual cover-up of an underlying crime. Personal criminal conduct can furnish strong evidence that the individual had an improper obstructive purpose, see, e.g. , United States v. Willoughby, 860 F.2d 15, 24 (2d Cir. 1988), or that he contemplated an effect on an official proceeding, see, e.g., United States v. Binday, 804 F.3d 558, 591 (2d Cir. 2015). But proof of such a crime is not an element of an obstruction offense. See United States v. Greer, 872 F.3d 790, 798 (6th Cir. 2017) (stating, in applying the obstruction sentencing guideline, that “obstruction of a criminal investigation is punishable even if the prosecution is ultimately unsuccessful or even if the investigation ultimately reveals no underlying crime”). Obstruction of justice can be motivated by a desire to protect non-criminal personal interests, to protect against investigations where underlying criminal liability falls into a gray area, or to avoid personal embarrassment. The injury to the integrity of the justice system is the same regardless of whether a person committed an underlying wrong. In this investigation, the evidence does not establish that the President was involved in an underlying crime related to Russian election interference. But the evidence does point to a range of other possible personal motives animating the President’s conduct. These include concerns that continued investigation would call into question the legitimacy of his election and potential uncertainty about whether certain events-such as advance notice of WikiLeaks’s release of hacked information or the June 9, 2016 meeting between senior campaign officials and Russians could be seen as criminal activity by the President, his campaign, or his family.

In both of these discussions, Mueller suggests that Trump may have believed his orders to Roger Stone to optimize WikiLeaks’ releases might be a crime when he obstructed the investigation; and in the discussion Barr extracts the quote from, he also suggests that Trump may have believed the June 9 meeting amounted to a crime.

The former is important given that Trump blatantly lied in his responses to Mueller about talking to Stone about his efforts to optimize WikiLeaks releases, even though at least three witnesses say he did. The prosecutorial decision with regards to WikiLeaks spans Volume I pages 176 to 179, but aside from a footnote explaining why they didn’t charge WikiLeaks for trafficking in stolen property, it is entirely redacted. The prosecutorial decision on Stone optimizing the release of stolen documents spans 188 to 190; it is also largely redacted, though it’s clear there were First Amendment concerns about pursuing it. Note that prosecutors continue to investigate Stone.

By contrast, the discussion of Mueller’s decision not to charge the June 9 meeting as a campaign finance violation is not redacted. Ultimately, Mueller’s team decided not to prosecute it because they did not have admissible evidence that Don Jr and the others knew taking the meeting and the offered dirt was illegal (which raises questions about whether they have hearsay or SIGINT suggesting they did), and because they had a hard time placing a value on the information offered.

The Office considered whether to charge Trump Campaign officials with crimes in connection with the June 9 meeting described in Volume I, Section IV.A.5, supra. The Office concluded that, in light of the government’s substantial burden of proof on issues of intent (“knowing” and “willful”), and the difficulty of establishing the value of the offered information, criminal charges would not meet the Justice Manual standard that “the admissible evidence will probably be sufficient to obtain and sustain a conviction.” Justice Manual§ 9-27.220.

[snip]

There are reasonable arguments that the offered information would constitute a “thing of value” within the meaning of these provisions, but the Office determined that the government would not be likely to obtain and sustain a conviction for two other reasons: first, the Office did not obtain admissible evidence likely to meet the government’s burden to prove beyond a reasonable doubt that these individuals acted “willfully,” i.e., with general knowledge of the illegality of their conduct; and, second, the government would likely encounter difficulty in proving beyond a reasonable doubt that the value of the promised information exceeded the threshold for a criminal violation, see 52 U.S.C. § 30109(d)(l)(A)(i).

[snip]

Additionally, in light of the unresolved legal questions about whether giving “documents and information” of the sort offered here constitutes a campaign contribution, Trump Jr. could mount a factual defense that he did not believe his response to the offer and the June 9 meeting itself violated the law. Given his less direct involvement in arranging the June 9 meeting, Kushner could likely mount a similar defense. And, while Manafort is experienced with political campaigns, the Office has not developed evidence showing that he had relevant knowledge of these legal issues.

[snip]

Accordingly, taking into account the high burden to establish a culpable mental state in a campaign-finance prosecution and the difficulty in establishing the required valuation, the Office decided not to pursue criminal campaign-finance charges against Trump Jr. or other campaign officials for the events culminating in the June 9 meeting. [my emphasis]

This analysis is critically important for a number of reasons.

First, the Report did not say this was not a crime. Rather, it said that under Justice Manual guidelines, Mueller’s team should not prosecute the case because they were unlikely to get and sustain a conviction. The analysis suggests there was a crime, but not one Mueller would win conviction on at trial.

That, by itself, blows Barr’s analysis on obstruction out of the water, because Mueller argued that this probably was a crime. Barr says Trump could not have obstructed justice because there was no underlying crime, but in fact, Mueller said there was a crime, just not one that could be prosecuted successfully.

But it’s crucially important to an impeachment inquiry for another reason (and explains one of the apparent referrals for attempted witnesses tampering of Rudy Giuliani friend Robert Costello to SDNY — though I suspect the fact that the passages  describing Trump’s attempt to tamper with Cohen’s testimony are unredacted means SDNY will not prosecute).

Mueller’s analysis of Don Jr’s receipt of dirt from foreigners could not be prosecuted because it wasn’t clear there was a crime and he didn’t have evidence that those who engaged in the crime knew it was a crime.

But SDNY has already decided that Trump’s hush payments are a crime. And in that case, it’s far harder for Trump to claim he didn’t know it was a crime for corporations to donate to presidential campaigns, because FEC investigated him and Cohen for it in 2011. A pity for Trump that he continues to alienate the guy who saved him from legal repercussions on that crime the last time, Don McGahn.

Mueller treats the question of whether Trump obstructed Cohen’s testimony in its own section, separate from his pressure on Mike Flynn, Paul Manafort, and Roger Stone not to cooperate. After laying out Jay Sekulow’s role in suborning Cohen’s false testimony on the Moscow Trump Tower deal, Mueller actually mentions the hush payments as part of the obstruction consideration.

In January 2018, the media reported that Cohen had arranged a $130,000 payment during the campaign to prevent a woman from publicly discussing an alleged sexual encounter she had with the President before he ran for office.1007 This Office did not investigate Cohen’s campaign period payments to women. 1008 However, those events, as described here, are potentially relevant to the President’s and his personal counsel’s interactions with Cohen as a witness who later began to cooperate with the government.

The report shows how, as he did with the Trump Tower deal, Cohen released false statements covering up the President’s actions. It describes the search of Cohen’s property and Trump’s reaction. It describes elaborate efforts to convey to Cohen he’d be “taken care of” if he did not cooperate.

Cohen also recalled speaking with the President’s personal counsel about pardons after the searches of his home and office had occurred, at a time when the media had reported that pardon discussions were occurring at the White House. 1031 Cohen told the President’s personal counsel he had been a loyal lawyer and servant, and he said that after the searches he was in an uncomfortable position and wanted to know what was in it for him. 1032 According to Cohen, the President’s personal counsel responded that Cohen should stay on message, that the investigation was a witch hunt, and that everything would be fine. 1033 Cohen understood based on this conversation and previous conversations about pardons with the President’s personal counsel that as long as he stayed on message, he would be taken care of by the President, either through a pardon or through the investigation being shut down. 1034

The report describes how, after Cohen pled guilty to the hush payments and implicated Trump in them, Trump turned on him.

On August 21, 2018, Cohen pleaded guilty in the Southern District of New York to eight felony charges, including two counts of campaign-finance violations based on the payments he had made during the final weeks of the campaign to women who said they had affairs with the President. 1044 During the plea hearing, Cohen stated that he had worked “at the direction of’ the candidate in making those payments. 1045 The next day, the President contrasted Cohen’s cooperation with Manafort’s refusal to cooperate, tweeting, “I feel very badly for Paul Manafort and his wonderful family. ‘Justice’ took a 12 year old tax case, among other things, applied tremendous pressure on him and, unlike Michael Cohen, he refused to ‘break’-make up stories in order to get a ‘deal.’ Such respect for a brave man!”1046

Only after that does it focus, again, on Trump’s efforts to cover up the Trump Tower Moscow deal, and Trump’s retaliation against Cohen for cooperating on that issue.

When the report conducts the analysis of whether this amounts to obstruction, it includes the SDNY case in both the “nexus to an official proceeding” and “intent” sections.

Nexus to an official proceeding. The President’s relevant”conduct towards Cohen occurred when the President knew the Special Counsel’s Office, Congress, and the U.S. Attorney’s Office for the Southern District of New York were investigating Cohen’s conduct. The President acknowledged through his public statements and tweets that Cohen potentially could cooperate with the government investigations.

[snip]

The President’s concern about Cohen cooperating may have been directed at the Southern District of New York investigation into other aspects of the President’s dealings with Cohen rather than an investigation of Trump Tower Moscow

In other words, even though Mueller didn’t prosecute the hush payments, he treated as one of the things Trump was attempting to obstruct with Cohen’s testimony.

This analysis renders Barr’s judgment — that Trump could not commit obstruction of justice because he didn’t commit the underlying crime — utterly irrelevant and wrong with regards to the President’s efforts to obstruct Cohen’s testimony.

Even with the June 9 meeting, Barr is wrong: Mueller believed there as a crime, he just didn’t believe he could prosecute it.

But SDNY has already decided — and obtained a guilty plea naming Trump as a co-conspirator — that the hush payment investigation that Trump was also obstructing was a crime, with the necessary proof that the criminals knew it was a crime. The 2011 precedent would further back that case.

Barr’s attempt to exonerate Trump on obstruction heavily depends on the fact that DOJ didn’t find a crime involving Trump.

Except DOJ did.

emptywheel’s Mueller Report coverage

The Significance of Trump’s Obstruction of Investigation of His Family’s Campaign Finance Crimes, Plural

How “Collusion” Appears in the Mueller Report

Putin’s Ghost: The Counterintelligence Calculus Not Included in the Obstruction Analysis

Working Twitter Threads on the Mueller Report

The Trump Men and the Grand Jury Redactions

Mueller’s Language about “Collusion,” Coordination, and Conspiracy

The Many Lies and Prevarications of Bill Barr

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

The Debate We May Be Having Tomorrow: If Trump Obstructed Justice to Hide Compromise by Russia, Could that Be a Crime?

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In my How to Read the Mueller Report post, I said that if Bill Barr’s memo (which claims the report is broken into just two sections, one on the trolls and hack-and-leak activities, and one on the obstruction question) is to be believed, the report won’t provide much detail about the second half of Mueller’s mandate: to figure out the nature of links between Trump’s flunkies and various Russians.

But we have good reason to believe Barr’s memo is not reliable.

Plus, there’s this passage that came out during the pushback from Mueller’s team.

According to a senior law enforcement official who has spoken to members of Mueller’s team, Mueller team members say it includes detailed accounts of Trump campaign contacts with Russia. While Mueller found no coordination or criminal conspiracy, the official said, some on the special counsel’s team say his findings paint a picture of a campaign whose members were manipulated by a sophisticated Russian intelligence operation. Some of that information may be classified, the official said, so it’s not clear whether it will be released in a few weeks when Barr makes public a redacted version of the Mueller report.

At the time Mueller’s prosecutors were leaking to correct Barr’s misleading portrayal of their report, a story said that the report actually shows that Trump’s team was susceptible to the manipulation of people working for Russia.

That is, it may not so much be that Mueller’s team found Trump and his flunkies’ conduct criminal. Rather, maybe they found their conduct naive — susceptible to compromise by Russia.

Their venality likely contributed to their vulnerability as well.

Such a conclusion is what I was pointing to when I suggested one question the report will answer is, “Did Mueller decide Don Jr is simply too stupid to enter into a conspiracy?” The evidence already in the public record, after all, shows that Don Jr took a meeting offering dirt at a time when he believed that cozying up to Russia could help the family business land a ridiculously lucrative $300 million real estate deal. At the end of the meeting, he told Russians who might be deemed agents of the government that the Trumps would revisit sanctions relief if his dad got elected. And contrary to the Trump camp’s public claims, there not only was follow-up after Trump won, but Trump himself did make moves towards giving Russia that sanctions relief.

That exchange could fit all the elements of a conspiracy charge: an agreement to trade dirt and real estate for sanctions relief and overt acts to further the conspiracy. Unless you figured the key player at the center of the agreement to enter into a conspiracy, Don Jr, is too stupid to know what he’s doing.

The leaked conclusion that Trump’s flunkies were manipulated by a sophisticated intelligence operation sure seems to support the “too stupid to enter into a conspiracy” conclusion.

All that said, the only way that such analysis would be consistent with both the regulatory mandate of the report (limiting the report to a discussion of prosecutions and declinations) and Barr’s description of it (saying it was split into the hack-and-leak and trolling section, and the obstruction section) would be if that analysis appeared in the obstruction section. (Frankly, I suspect Barr’s memo is wrong on this point, as Mueller would need to explain that Don Jr is too stupid to enter into a conspiracy, if that’s why he decided not to charge him in one).

That is, it may be that what Trump was obstructing was not criminal conduct, a knowingly engaged conspiracy, but stupid conduct, his failson saying all the words that amount to entering into a conspiracy, without realizing he was entering into one.

The reason Trump may have fired Mike Flynn and Jim Comey and pushed Michael Cohen to lie to Congress may be to hide that he got badly used by Putin’s envoys who appealed to Trump’s narcissism and greed to get him (in the form of his especially stupid son) to agree to sanctions relief.

Such a conclusion would be consistent with the reason Barr exonerated Trump, in usurping Congress’ authority to make that judgment: Trump and his failson didn’t so much knowingly commit a crime — they didn’t mean to enter into a conspiracy with the Russians, it just happened because they’re too weak to resist. Under such analysis, because Trump didn’t commit a crime, he had no crime to obstruct, and therefore did not obstruct.

Again, this is all hypothesis based on the known outlines of the report, at least as presented by an Attorney General who can’t be trusted.

Given that it’s a possibility, however, I want to prepare for the possibility that tomorrow we’ll be debating whether a President can obstruct justice to prevent voters from learning how badly he and his dumb son compromised themselves in an foreign intelligence operation in the course of running a presidential election to get rich.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Three Times William Barr Said Trading Pardons for False Testimony Was Obstruction of Justice

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In the discussion of the Bill Barr memo in the last two days, the discussion of Barr’s claimed views on obstruction have mostly focused on the crazier parts of the memo that got him the job, and not even the passage at the bottom of the first page where he claimed to believe that if a President suborned perjury, it’d be a crime for him just as it would be for anyone else.

Obviously, the President and any other official can commit obstruction in this classic sense of sabotaging a proceeding’s truth-finding function. Thus, for example, if a President knowingly destroys or alters evidence, suborns perjury, or induces a witness to change testimony, or commits any act deliberately impairing the integrity or availability of evidence, then he, like anyone else, commits the crime of obstruction.

There has been far less attention to what he said in his confirmation hearing (where Lindsey Graham did not put him under oath). There were three substantive exchanges about what might constitute obstruction of justice for a President. And all of them get perilously close to behavior that Barr, now ensconced as Attorney General, claimed Sunday did not amount to obstruction of justice.

When Barr answered these questions, he appeared to have little awareness that Trump had floated pardons to — at least — Paul Manafort, Mike Flynn, and Michael Cohen. The first time he got asked about a pardon for false testimony, he stated clearly that would be a crime.

Patrick Leahy, specifically invoking Barr’s sanction of the Caspar Weinberger pardon that squelched the Iran-Contra investigation, asked Barr about pardons.

Leahy: Do you believe a president could lawfully issue a pardon in exchange for the recipient’s promise to not incriminate him?

Barr: No, that would be a crime.

Then, in this exchange from Amy Klobuchar, it appeared to take Barr several questions before he realized she knew more about the evidence than he did, and started couching his answers.

Klobuchar: You wrote on page one that a President persuading a person to commit perjury would be obstruction. Is that right?

Barr: [Pause] Yes. Any person who persuades another —

Klobuchar: Okay. You also said that a President or any person convincing a witness to change testimony would be obstruction. Is that right?

Barr: Yes.

Klobuchar: And on page two, you said that a President deliberately impairing the integrity or availability of evidence would be an obstruction. Is that correct?

Barr: Yes.

Klobuchar: OK. And so what if a President told a witness not to cooperate with an investigation or hinted at a pardon?

Barr: I’d have to now the specifics facts, I’d have to know the specific facts.

Klobuchar: OK. And you wrote on page one that if a President knowingly destroys or alters evidence, that would be obstruction?

Barr: Yes.

Klobuchar: OK. So what if a President drafted a misleading statement to conceal the purpose of a meeting. Would that be obstruction?

Barr: Again, I’d have to know the specifics.

Shortly after that exchange, Lindsey Graham tried to clarify the issue, asking the pardon question at a more basic level, coaching another not to testify, as Trump has done on Twitter repeatedly.

Lindsey: So if there was some reason to believe that the President tried to coach somebody not to testify or testify falsely, that could be obstruction of justice?

Barr: Yes, under that, under an obstruction statute, yes.

Lindsey: So if there’s some evidence that the President tried to conceal evidence? That would be obstruction of justice, potentially?

Barr: [nods]

Admittedly, by the third exchange, both Lindsey and Barr were hedging far more carefully about the set of facts.

But on three different occasions during his confirmation hearing, Barr made some kind of statement that said floating pardons for false testimony would be a crime.

And then, on Sunday, he said it wasn’t a crime.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post.