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The Trump Team Strategic Errors: Rockets Instead Bursting In Air

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During the winter, when the government was threatening and then did charge Paul Manafort with a bunch of tax fraud charges, he chose not to waive venue, forcing himself into two trials, one in EDVA and one in DC. (Raising the perennial question, who is paying for his legal representation?)

At the time, Josh Gerstein suggested might be seeking to avail himself of EDVA’s famed “rocket docket” which pushes trials through quickly. The thought was perhaps Manafort would have a better result with EDVA’s more conservative jury pool before his DC trial started, which in turn might be a way to discredit the Mueller investigation (something that has always seemed key to any strategy pursuing a pardon).

Manafort’s attorneys’ decision to effectively force some — but not all — of special counsel Robert Mueller’s case against him to northern Virginia baffled many lawyers, since it puts Manafort at risk of two separate trials rather than one. To some, it’s akin to choosing to play Russian Roulette with two bullets in the gun instead of one.

However, because the Alexandria-based federal court’s “rocket docket” is known for providing quick trials, there’s a possibility that Manafort could get to trial on bank and tax fraud charges in Virginia before the Sept. 17 trial date set Wednesday by Judge Amy Berman Jackson in Washington in the original case, now scaled back to focus on money laundering and failure to register as a foreign agent.

That means Manafort has a chance of getting his case before a northern Virginia jury first — a panel more likely to include Trump supporters who may be skeptical of Mueller’s enterprise. Such jurors are likely to be a rarity in Washington.

[snip]

If Manafort could pull off an acquittal in Alexandria or even a hung jury, it could fuel President Donald Trump’s view of the Mueller probe as a prolonged “witch hunt” that is more persecution than prosecution. That would seem certain to lead to calls for Mueller to abandon the D.C. case and might prompt a pardon from Trump or some action to shut down the special counsel’s office altogether.

Even if nothing so dramatic happened, a stumble for Mueller’s team in Virginia and in its first contested trial could raise pressure for prosecutors to be more flexible in negotiating a plea deal.

Not long after at Manafort’s EDVA arraignment before the cantankerous TS Ellis, however, his attorney Kevin Downing admitted that they would prefer either everything move to EDVA, or the EDVA trial go second, after the DC trial still scheduled to start on September 17.

MR. DOWNING: We’re actually thinking trying to get the conspiracy to come here. We’re happy to be here.

[snip]

MR. DOWNING: In this perfect world where I have my rosy glasses on, we were envisioning that we would be trying this case in November following the case in D.C.

THE COURT: You need to go back to the optometrist, because that isn’t going to happen.

MR. DOWNING: Okay.

THE COURT: You’ve got a trial date in September in the District? Mr. Weissmann, this case seems — maybe I’m not familiar with the indictment in D.C., but this case seems less complex than the one in D.C.

MR. WEISSMANN: That’s our view as well. The tax charges, as we mentioned, do largely overlap. But unlike the D.C. case, there are no Foreign Agents Registration Act charges before this Court. And those involve quite an extensive array of evidence and different theories of liability. Here we have what I think are five bank frauds and they are discrete over a two-year period and the discovery has been produced.

THE COURT: All right. Mr. Downing, I’m going to set this matter in July. Now, if in the course of your preparation something comes up that suggests to you that you now have a more persuasive basis for me to consider on a later trial date, I’ll consider it. But for now, 12th of — or not 12th — 10th of July at 10 a.m. with a jury. Also having that earlier deadline is an important — it will focus your minds, everyone’s minds on it and get this matter done.

In July, Manafort used his jailing by Amy Berman Jackson as an excuse to ask for a delay in the EDVA trial.

In a response, the government demonstrated to Ellis that Manafort was still trying to have his desired outcome, to have the DC trial go first.

Manafort can hardly now complain about the order of the trials: he was on notice from the Honorable Amy Berman Jackson, when he elected last winter not to have the proposed tax and bank fraud charges all brought in the D.C. Case, that his decision would likely result in his going to trial in Virginia first. D.C. Case Status Hr’g Tr. (Jan. 16, 2018). That other reasons may account for this application is strongly suggested by a prison call in which Manafort discusses going to trial first in the D.C. Case and contends to the listener (who did not believe the D.C. venue was favorable) that the listener should “think about how it’ll play elsewhere….There is a strategy to it, even in failure, but there’s a hope in it.” Phone Call of Manafort (June 20, 2018), at 4:02-4:39.

The trial went off in July as scheduled, meaning Manafort faced the more traditional of charges first.

Still, getting one trial in EDVA almost worked, with a holdout juror that hung the jury on 10 of 18 charges (though that won’t have that big an effect on sentencing) and lots of good press stemming from Ellis beating up the prosecution, both during Manafort’s challenge to Mueller’s authority and during the trial in general.

Add in the fact that Manafort (again, with his seemingly endless supply of funds to pay defense attorneys) got two bites at key challenges to Mueller’s case in chief — his authority generally, and the search of Manafort’s condo for things including evidence about the June 9 meeting — and the dual trial strategy probably wasn’t a total flop (unless, of course, it means Manafort is running out of money). Along the way, he also got full discovery on what Rick Gates has provided Mueller, presumably including the real goods Gates gave Mueller on the conspiracy with Russia.

But Manafort’s still facing another trial in a less friendly venue before a no-nonsense judge, a trial he seems to have done nothing to prepare for. (WSJ reports the two sides did consider a plea on the DC charges while waiting for the EDVA verdict, to no avail.) And all of Rudy’s squealing about how indictments or even further investigation during the campaign season might be a distraction, Manafort’s trial (one that’s sexier than the EDVA one) will remain a constant focus in the last six weeks before the election.

To be fair, it’s hard to measure how Manafort’s strategy is playing, as it’s not clear what — besides a full pardon — his goals are. Plus, he’s got a shitty hand, no matter how you look at it (except for the seemingly endless supply of defense fund dollars).

But Manafort’s bid for a second trial seems like an even worse strategic decision than Michael Cohen’s bid for a Special Master (which I now admit at least gave Trump and his company an opportunity to undercut any Cohen bid for a plea deal) not least because he’ll be a felon in his DC trial which will in turn make sentencing worse if he is found guilty there.

At least the defense bar is making money.

Andy McCarthy’s Misconception

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I was struck, in reading Andy McCarthy’s review of the Michael Cohen and Paul Manafort guilty outcomes last week (in which he measures Trump via a vastly different standard than he once measured Bill Clinton), by this erroneous claim:

The Trump camp continues to stress that Manafort’s case had nothing to do with the original rationale for Mueller’s investigation, “collusion with Russia.” But as we’ve pointed out any number of times, Mueller took over a counterintelligence investigation of Russia’s interference in the 2016 election. Possible Trump-campaign collusion with Russia was just one thread in the larger probe.

The claim that the Trump-campaign “collusion” was just one thread of what Mueller originally took over is false, but utterly critical for McCarthy’s sustained belief that Mueller has not found evidence of a conspiracy between Trump and Russia. While it is true that when Comey confirmed the investigation, he did not specify the structure of the investigation,
I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.
When Rod Rosenstein appointed Mueller, he described Mueller’s scope to include,
  • any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and
  • any matters that arose or may arise directly from the investigation; and
  • any other matters within the scope of 28 C.F.R. § 600.4(a)

Why McCarthy made this error is clear: he uses the existence of and Mueller’s indictments in a broader counterintelligence investigation to sustain his belief that Mueller doesn’t have a “collusion” case against Trump or his associates.

At this point, it does not appear that Mueller has a collusion case against Trump associates. His indictments involving Russian hacking and troll farms do not suggest complicity by the Trump campaign. I also find it hard to believe Mueller sees Manafort as the key to making a case on Trump when Mueller has had Gates — Manafort’s partner — as a cooperator for six months. You have to figure Gates knows whatever Manafort knows about collusion. Yet, since Gates began cooperating with the special counsel, Mueller has filed the charges against Russians that do not implicate Trump, and has transferred those cases to other Justice Department components.

When it comes to the president, I believe the special counsel’s focus is obstruction, not collusion. When it comes to Manafort, I believe the special counsel’s focus is Russia — specifically, Manafort’s longtime connections to Kremlin-connected operatives. Mueller may well be interested in what Manafort can add to his inquiry into the June 2016 Trump Tower meeting (arranged by Donald Trump Jr. in futile hopes of obtaining campaign dirt from Russia on Hillary Clinton). That, however, is not the more serious “collusion” allegation that triggered the Trump thread of the investigation — cyberespionage conspiracy (i.e., Russian hacking of Democratic party emails).

That is, because Mueller indicted trolls and GRU hackers and then spun those prosecutions off to other teams (in the GRU case, back to one of the teams that originally investigated it), it is proof, in McCarthy’s mind, that Mueller isn’t targeting Trump and his associates for conspiring with Russia.

The actual background of the Mueller investigation suggests precisely the opposite. As I noted when Lawfare made precisely the same error in a post on the GRU indictment,

Friday’s indictment is, rather, the result of investigations conducted primarily in San Francisco and Pittsburgh. At the time Comey confirmed the counterintelligence investigation into Trump’s camp and at the time Comey got fired for not shutting the Trump counterintelligence investigation down, those San Francisco and Pittsburgh investigations were totally separate. Those two investigations almost certainly had little if any involvement from Peter Strzok (indeed, they involved a bunch of FBI cyber agents, a division of FBI that Strzok never tired of mocking in his texts to Lisa Page). The DOJ press release from Friday states that explicitly.

This case was investigated with the help of the FBI’s cyber teams in Pittsburgh, Philadelphia and San Francisco and the National Security Division.

Those two investigations (plus the separate one noted in Philadelphia that started later, as I understand it from what a lawyer who represented a witness in that investigation described to me) got moved under the Mueller umbrella sometime in or just before November, and now the GRU officer part of the investigation will be moved back to Pittsburgh where it started, to languish forever like some other nation-state hacker indictments investigated by Western District of Pennsylvania.

Given that both public reporting (starting in February 2017 and extending into November 2017) and Mueller team changes (not to mention my own reporting about the Philadelphia grand jury’s activity in the second half of May 2017 and my own knowledge about where I interviewed and where my interview materials subsequently got moved to) support this narrative, McCarthy (and the Lawfare crowd) might ask why Mueller decided to integrate the cybersecurity parts of the investigation, only to spin the Russian defendants back to other teams once they were indicted?

We can begin to get an answer from the two indictments that — Andy wants to believe — are themselves evidence that Mueller doesn’t have evidence on Trump’s associates but actually are. The Internet Research Agency indictment actually describes three Florida-based Trump campaign officials inconclusively, as if they were either still under investigation or at some legal risk.

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

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

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

[snip]

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

[snip]

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

And while the GRU indictment (on top of key clauses being misread by virtually everyone who has read it) doesn’t use the same convention to describe Roger Stone’s communications with Guccifer 2.0…

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

It pointed to Russia’s response to Donald Trump’s request that they hack Hillary without referring to him one way or another.

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

What Mueller has done with both of the counterintelligence indictments that McCarthy takes solace in is lay out the Russian side of a conspiracy (and both are charged as conspiracies) with very clear spots into which American co-conspirators may be dropped when Mueller is prepared to do so. (I laid this out at more length in this post.)

Importantly, the fact that some of this investigation started out in other parts of DOJ but then got moved under Mueller make it clear that something came up in the investigation that Mueller and Rosenstein believed required they be moved under Special Counsel when they weren’t there, originally.

Let’s put it this way: Mueller didn’t subsume investigations located elsewhere at DOJ because the Special Counsel needed to be the one to indict a bunch of Russians. He did it to set up the conspiracies that would — that will — later be occupied by Russians and Americans.

As I disclosed in 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. 

On Use Immunity, Predictions of Doom for the Presidency, and the Voluntary Waiver of Privilege on the Hush Payment Tape

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Don’t get me wrong. I think Trump is in a whole heap of trouble (though remember that, wielded in the hands of a competent man or similarly competent advisors, the power of the presidency is an awesome force). I think the SDNY’s investigation of Trump Organization’s involvement in illegal hush payments and NYS’s investigation of the Trump Foundation pose the additional risk that the Trump business empire will collapse as people scrutinize both its legal shenanigans and its debt. And I think that risk will bring Trump to fear US law enforcement as much as he fears Russia (which I suspect could also bankrupt Trump Org if a few key oligarchs put their mind to it).

But I think people are getting slightly ahead of the story when they predict that “The significance of [what they call Weisselberg’s] flip, paired with Cohen’s recent plea deal, cannot be overstated.” That’s true, in part, because Weisselberg got only limited immunity tied to grand jury testimony implicating Michael Cohen.

The person briefed on the deal said that it was narrow in scope, protecting Mr. Weisselberg from self-incrimination in sharing information with prosecutors about Mr. Cohen, Mr. Trump’s former personal lawyer, who pleaded guilty on Tuesday to tax and campaign finance charges. The latter charges stemmed from payments during the campaign to two women who said they had affairs with Mr. Trump. It was not, the person said, a blanket immunity extending beyond the information he shared, and Mr. Weisselberg remains in his job at the Trump Organization.

While his testimony will be damaging to the Trump Org and, probably even more directly, Don Jr, Weisselberg in no way “flipped” on Trump. Indeed, there’s good reason to believe his cooperation may be an attempt to limit the fallout of the investigation of Cohen.

At the risk of proving my most recent post (in which I argued that the push for a Special Master didn’t gain the Trump camp very much) wrong, consider this detail. On July 23, Special Master Barbara Jones informed Judge Kimba Wood that “the parties” had withdrawn their privileged designation for 12 audio files, which she then released to the government.

On July 20, 2018, the parties withdrew their designations of “privileged” as to 12 audio items that were under consideration by the Special Master. Based upon those de-designations, the Special Master released the 12 items to the Government that day.

Those tapes are understood to include the tapes Cohen made in which he discussed the hush payments with Trump.

Two days later after that notice, Michael Cohen released a truncated version of the tape of him telling Trump he had spoken to Weisselberg about buying the rights of the Karen McDougal story, which unsurprisingly immediately preceded the news that prosecutors wanted to speak with Weisselberg.

Now, it may be that Cohen and Trump voluntarily waived privilege on those tapes to provide something to the press to get the titillated by the sex story and distracted from real financial graft. Or it may be that someone has a different plan of hanging out Cohen on the hush payments, limiting damage to Trump Jr and the organization, all in a bid to undercut Cohen’s value in a larger cooperation deal.

Or there may be some other explanation.

That being said, as of right now, the Trump camp is, as far as we know, dealing with three still separate investigations: SDNY, NYS, and Mueller. Don Jr is implicated directly in all of them and they have the possibility to collapse into one (with the added benefit of limiting the value of a Trump pardon of his son). Indeed, according to Vanity Fair, Mueller is very actively putting the squeeze on Junior in the more dangerous of those investigations.

Another theory for what’s motivating Trump’s increasingly unhinged tweets is that Mueller may be closing in on his son Don Jr. “A lot of what Trump is doing is based on the fact [that] Mueller is going after Don Jr.,” a person close to the Trump family told me. “They’re squeezing Don Jr. right now.”

Don Jr.’s lawyer said, “I’m not going to comment.” Another person briefed on the investigation disputed the term “squeeze,” but said the Mueller team continues to ask for documents.

Mueller may not wait for Junior to implicate Dad before he indicts the spawn (certainly, Senior and Rudy G have been laying the groundwork to exonerate Junior for his conspiring with Russians for at least three weeks, so they clearly expect that possibility). And to the extent that Don Jr gets in real legal trouble — something beyond a tax problem they can restate and a campaign finance violation that might be manageable — then Dad might be in real trouble.

But it’s quite possible Weisselberg and the Trump Org found a way to limit the damage of the Cohen investigation, for now, to things that don’t affect the core corruption of the Trump Organization business model, or the conspiracy with Russia to win the election, and along the way limited the damage to Don Jr.

The thing about Trump is there are so many bodies, it may actually take three or four people who know where the different kinds of bodies are buried — Weisselberg plus several others — to bring him down. And thus far, Weisselberg is not telling about most of those bodies.

Update: I’d like to add a point I meant to include before I went to yoga. One thing that’s going on with the hush payment story — one I’ve even seen reporters admit — is that it pertains to issues that reporters can understand. Sex! Scandal! Tax cheats!

Add in the fact that sources are talking here, whereas all the Mueller investigation sources, save those associated with Roger Stone and his band of rat-fuckers, have gone silent (and they were all defense witness sources anyway, and so unlikely to provide the full picture).

There’s nothing wrong with the possibility that reporters will make more of a story that they have sources for and can understand and sell to readers easily. For that reason, too, it may have more immediate impact on Congress, even while I highly doubt Republicans are going to ditch Trump for some hush payments (at least not until he becomes significantly more wounded). But it’s worth noting that some of that may be going on.

And if the focus on these hush payments buys Mueller some times — shifts Trump’s ire from Mueller to Sessions — that’s probably a benefit too.

The Trump Team’s Strategic Errors: Special Master Edition

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Between Michael Cohen’s guilty plea and Paul Manafort’s guilty verdict, I’m struck this week by how badly two strategic decisions they made have failed. I’ll return to the issue of Manafort’s “rocket docket” strategy. Here, however, I’d like to note how little Michael Cohen and Donald Trump (AKA Individual-1) gained by fighting to have a special master review the materials seized in the April 9 raid of Cohen’s property.

As you recall, the Southern District of NY planned to use a taint team — basically, a second set of prosecutors — to sort through Cohen’s possessions. But Cohen and (especially) Trump complained about the impropriety of doing so when the President is one of the clients involved. Cohen invented an attorney-client relationship with Sean Hannity.

And after listening to all those arguments,on April 27, Judge Kimba Wood appointed Barbara Jones special master to make privilege determinations. It was definitely the right decision for the legitimacy of the proceeding. It might even have gotten the review done as quickly as SDNY could have done so.

But Trump and Cohen gained very little beyond what will end up being more than half a million dollar bill for their troubles. (Jones’ invoices for labor through the end of July, which are being split 50-50 between the plaintiffs — Cohen, Trump, and Trump Organization — and SDNY, add up to $1,050,022.)

It started on June 4, when Jones issued her first report on the hard copy documents and three devices that were the first things she received. Of the 172 items the plaintiffs tried to claim privilege over, she agreed in just 169 cases. Jones disagreed with the claims about three items (the circumstances with this report are murky, as she later reconsidered one item, and this appears to be the batch of materials from which Cohen and Trump later decided to reverse their privilege claim surrounding 12 recordings).

On June 6, the president’s lawyer, Joanna Hendon, wrote Kimba Wood on behalf of Trump, Cohen, and the Trump Organization, requesting that any challenge to a privilege determination appear under seal and ex parte. The next day the government responded that it had no problem with discussions of the content of documents to be submitted under seal and ex parte, but argued the legal discussions should be public.

There is no reason why the Government and the public should be deprived of access to the balance of the filing — such as the law upon which Cohen and the two Intervenors rely, or their legal analysis to the extent it does not directly describe the substance of the documents in question.

In other words, SDNY argued that if the plaintiffs wanted to fight Jones’ determinations, they would have to show their legal arguments in public.

In a June 8 order, Judge Wood agreed with the government that any legal discussion should be public. In response, the plaintiffs withdrew certain privileged designations, effectively deciding they weren’t willing to challenge Jones’ determinations with legal arguments the public could see.

After Jones amended her June 4 report on June 15, Judge Wood reviewed the substance of what Jones had found, effectively conducting a spot check of her work. Her June 22 order on the matter reveals that Michael Cohen did more consulting of lawyers than consulting as a lawyer.

The Court adopts the Report for the following reasons: 57 of these items are text messages between Plaintiff and his outside counsel, in which Plaintiff requests legal advice from his outside counsel or Plaintiff’s outside counsel provides legal advice; 55 of these items are text messages between Plaintiff and his outside counsel, in which Plaintiff requests legal advice from his outside counsel or Plaintiff’s outside counsel provides legal advice in anticipation of litigation; 22 of these items are email communications or portions of email communications in which Plaintiff receives or requests legal advice from outside counsel; 6 of these items are email communications in which Plaintiff receives or requests legal advice from outside counsel in anticipation of litigation; 7 of these items are email communications between Plaintiff and a client, containing legal advice made in anticipation of litigation; 1 of these items is an email communication in which Plaintiff receives a request to initiate legal representation; 9 of these items are legal memoranda from outside counsel, providing legal advice to Plaintiff or a client of Plaintiff; 1 of these items is a letter from Plaintiff’s outside counsel containing legal 2 of these items are retainer agreements between Plaintiff and outside counsel, containing requests for legal advice10; 1 of these items is a litigation document containing notes for Plaintiff’ s outside counsel, made in anticipation of litigation. The Court has also reviewed the 7 documents that the Special Master recommends withholding from the Government because they are Highly Personal. (ECF No. 81, at 2.) These documents all concern Plaintiffs family affairs and are not relevant to the Government’s investigation. With respect to the above items, the Court ADOPTS the Amended Report. [my emphasis]

That is, in this first batch of documents, even the privileged ones only included 8 files in which Cohen was the lawyer providing advice. The rest involved Cohen getting advice for himself or a client.

On July 2 and July 13, Jones started releasing big chunks of non-privileged items. Almost 2.2 million items were turned over. On July 10, Cohen moved to share all these materials with Guy Petrillo. By this point, Cohen felt he had been abandoned by Trump and was preparing to flip against his client. July 23 is when Jones reported that Cohen and Trump had withdrawn designations of privilege with respect to 12 audio files, which were then released to the government (and began to be leaked on cable shows).

Here are the determinations Barbara Jones described making in reports dated July 19, July 24, July 28, August 2, and August 9. Claimed privilege, here, is what Cohen or Trump or Trump organization claimed. The next two columns show what Jones labeled those files as. The objections are items for which the plaintiffs still argued there was a privilege claim after her recommendations, though they did not fight any of these designations.

In her summary, Jones described that altogether 7,434 items had been deemed privileged. Trump and or Cohen had objected to Jones’ designations with regards to 57 items, but were unwilling to fight to have Wood overrule Jones’ designation if their arguments would be public.

What Jones didn’t mention is that along the way, she had overruled the plaintiffs’ designation of something as privileged or highly sensitive around 6,200 times (these numbers don’t entirely add up, possibly because of overlapping categories).

While Trump and Cohen may have achieved the goal of delay, within 134 days after the raid on his home, Cohen had found a new lawyer and pled guilty to 8 counts. And while it’s not clear whether Jones applied a similar or more stringent standard on privilege claims than SDNY’s privilege team would have, as it was, the Trump people paid half a million dollars to try but fail to keep over 6,200 items out of government hands.

Update, 8/27: Oops! I forgot to add this language from the plea hearing, Prosecutor Andrea Griswold explained this about the evidence.

The proof on these counts at trial would establish that these payments were made in order to ensure that each recipient of the payments did not publicize their stories of alleged affairs with the candidate. This evidence would include:

Records obtained from an April 9, 2018 series of search warrants on Mr. Cohen’s premised, including hard copy documents, seized electronic devices, and audio recordings made by Mr. Cohen.

We would also offer text messages, messages sent over encrypted applications, phone records, and emails.

We would also submit various records produced to us via subpoena, including records from the corporation referenced in the information as Corporation One and records from the media company also referenced in the information.

She makes it clear that the audio recording — apparently the same ones that Cohen and Trump waived privilege over — were part of the evidence on those charges.

Update: Added more punctuation for those of you who thought I’d leave out an Oxford comma.

Trump’s Pecker and His Rat-Fucker’s “Pervy Ted”

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According to Michael Cohen’s criminal information, he and David Pecker started conspiring to protect Trump from scandals pertaining to his extramarital affairs and alleged sexual assault starting in August 2015.

In or about August 2015, the Chairman and Chief Executive of Corporation-1 ( “Chairman-1”), in coordination with MICHAEL COHEN, the defendant, and one or more members of the campaign, offered to help deal with negative stories about Individual-l’s relationships with women by, among other things, assisting the campaign in identifying such stories so they could be purchased and their publication avoided. Chairman-1 agreed to keep COHEN apprised of any such negative stories.

That means Cohen and Pecker were conspiring to help Trump’s electoral chances when Trump’s rat-fucker, Roger Stone, planted a story in Pecker’s pages on March 23, 2016, accusing Ted Cruz, who was running on his Evangelical brand, of having affairs with five different women. (h/t Allen Smith for remembering this incident)

The National Enquirer published an article Wednesday alleging that the Texas senator had five secret mistresses. While it did not identify the alleged mistresses by name, the article included headshots of five women that were pixelated with black bars over their eyes.

The article also quoted Roger Stone, a former Trump adviser who is still close to the real-estate mogul. “These stories have been swirling about Cruz for some time,” Stone said in the National Enquirer. “I believe where there is smoke there is fire. I have to believe this will hurt him with his evangelical Christian supporters.”

Cruz unsurprisingly accused Trump of planting the story. To which Trump claimed he does not surround himself with political hacks … then pretend total innocence.

“And I would note that Mr. Stone is a man who has 50 years of dirty tricks behind him. He’s a man whom a term was coined for copulating with a rodent. Well let me be clear, Donald Trump may be a rat but I have no desire to copulate with him. And this garbage does not belong in politics,” Cruz said.

Trump issued a statement Friday afternoon denying any involvement with the National Enquirer.

“I have no idea whether or not the cover story about Ted Cruz in this week’s issue of the National Enquirer is true or not, but I had absolutely nothing to do with it, did not know about it, and have not, as yet, read it,” Trump said.

“I have nothing to do with the National Enquirer and unlike Lyin’ Ted Cruz I do not surround myself with political hacks and henchman (sic) and then pretend total innocence. Ted Cruz’s problem with the National Enquirer is his and his alone, and while they were right about O.J. Simpson, John Edwards, and many others, I certainly hope they are not right about Lyin’ Ted Cruz,” he added.

The timing of all this is quite interesting for several reasons. First, because Mueller has asked witnesses against Stone about meetings they had with Stone and Rick Gates in the spring, meaning we know the scope of his investigation into Stone extends back into the primary timeframe. The story came out just before Trump formally announced the hiring of Paul Manafort to manage his convention.

More interesting, still, the story came out even as Stone and his ally Pamela Jensen were ramping up attacks on Hillary for Bill’s philandering — the same kind of projection this Enquirer story entailed. The story came weeks after Stone first tweeted out his Stop the Steal campaign. Not long after, Stone started to shift money from his PAC, Committee to Restore America’s Greatness (CRAG in the timeline below), to his 527, Stop the Steal.

February 1, 2016: Pamela Jensen sends out fundraising letter to World Net Daily pushing Kathleen Wiley’s mortgage fundraiser

February 4, 2016: Jensen & Associates loans $2,610 to CRAG

February 10, 2016: Loans from Jensen & Associates repaid

February 19, 2016: Roger Stone tells Alex Jones that Donald Trump has donated to the Kathleen Willey fundraiser, even though it had raised less than $4,000 at that time

March 1, 2016: John Powers Middleton Company donates $150,000 to CRAG

March 6, 2016: First tweet in spring Stop the Steal campaign

March 9, 2016: John Powers Middleton donates $50,000 to CRAG

March 11, 2016: John Powers Middleton donates $25,000 to CRAG

March 14, 2016: John Powers Middleton donates $25,000 to CRAG

March 23, 2016: Ted Cruz National Enquirer smear

March 29, 2016: Trump announces hiring of Paul Manafort

April 6, 2016: Stone (Sarah Rollins) establishes Stop the Steal in same UPS post box as CRAG

April 6, 2016: CRAG gives $50,000 to Stop the Steal

So there’s good reason to believe that Mueller is reviewing Stone’s actions from this time period.

As numerous outlets have reported, prosecutors have given Pecker immunity to testify (at least) about the Cohen matter. The NYT reported that the Enquirer’s Chief Content Officer, Dylan Howard, also keeps a recording device in his office.

Though several people familiar with American Media’s operations have said that the company keeps a strict records policy that ensures that emails are deleted regularly, it is not clear the same held for encrypted communications or recordings; Dylan Howard, the company’s chief content officer, who is also said to be cooperating, was known to have a recording device in his office, according to people familiar with his operations. American Media would not comment.

In court documents filed on Tuesday federal prosecutors cited “encrypted” communications among Mr. Pecker, Mr. Howard and Mr. Cohen regarding the payoff to Stephanie Clifford, the pornographic actress known as Stormy Daniels, who claimed to have had a brief affair with Mr. Trump.

Perhaps the Pecker participation in this conspiracy goes beyond just hush payments?

Cohen May Be Shopping a Cooperation Agreement; It’s Not Clear Anyone Is Buying

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In the wake of yesterday’s twin guilty verdicts, the punditocracy has asserted, based on an assumption that Michael Cohen knows everything Trump did, that his guilty plea poses a bigger problem for Trump than Paul Manafort’s guilty verdict right now.

I’m not convinced. Indeed, I have real questions about whether Cohen faces anything other than his own charges in the Russian conspiracy case.

Trump has seen everything Cohen has on him

I’ll have more in a bit about the Cohen-Trump challenge to SDNY’s use of a clean team to sort out privileged materials. It was undoubtedly the right decision on Kimba Wood’s part for the legitimacy of the Cohen prosecution. But what it did for Cohen is make him (or Trump) spend a lot of money to give Trump a view of every piece of dirt he had on him.

The people who believe Cohen is a bigger threat to Trump than Manafort are premising that on four month old statements from Trump’s lawyers who have, in the interim, not only reviewed everything SDNY seized from Cohen, but also proven they underestimate the scope of Trump’s risk in the Russia investigation, and not just from Don McGahn.

Trump may have pre-empted what risk Cohen has

On TV this morning, Lanny Davis claimed that Trump’s lawyers already admitted to Mueller that he directed Cohen to pay off Karen McDougal and Stormy Daniels.

There is no dispute that Donald Trump committed a crime. No dispute because his own lawyers said to the Special Counsel in a letter that he directed — that’s the word they used — Michael Cohen to do these payments.

It’s unclear what this letter is. It’s unclear why Trump’s lawyers would address it to Mueller rather than SDNY (aside from the fact that the Trump team never quite understood that under Rod Rosenstein’s supervision, Mueller referred the hush payments to SDNY, or perhaps the fact that suggesting Trump’s second conspiracy to cheat to get elected must be part of the investigation into Trump’s first conspiracy to cheat to get elected).

But if it is true that Trump’s team already admitted this to DOJ, regardless of who at DOJ, then it really undermines any value of having Cohen say so as part of a plea deal with regards to the hush payments. Trump’s a vindictive fuck, and depriving Cohen any value for turning on him would be the kind of thing he would do on “principle.”

Davis’ televised proffers don’t hold up to scrutiny

Since yesterday, Davis has publicly claimed Cohen has the goods on Trump’s charity (probably true) and the Russian hack. [Update: AP reports NYS has subpoenaed Cohen with regards to Trump’s foundation.]

In response to the latter claims, Richard Burr and Mark Warner issued a statement noting that that claim conflicts with Cohen’s past testimony.

We have obviously followed today’s reporting about Michael Cohen with great interest. He appears to be pleading guilty to very serious charges, however, we have no insight into any agreements he and his legal team have allegedly reached with prosecutors in New York.

What we can say is that we recently reengaged with Mr. Cohen and his team following press reports that suggested he had advance knowledge of the June 2016 meeting between campaign officials and Russian lawyers at Trump Tower. Mr. Cohen had testified before the Committee that he was not aware of the meeting prior to its disclosure in the press last summer. As such, the Committee inquired of Mr. Cohen’s legal team as to whether Mr. Cohen stood by his testimony. They responded that he did stand by his testimony.

We hope that today’s developments and Mr. Cohen’s plea agreement will not preclude his appearance before our Committee as needed for our ongoing investigation.

The truth is probably that Cohen had knowledge that Trump knew about some release — like the July release to Wikileaks — before it happened. But Mueller already has testimony to that effect, including from Omarosa, who as far as we know didn’t say it in an attempt to get out of criminal exposure herself.

And Cohen’s definitely not getting a cooperation agreement by working the press

Even SDNY hates when potential cooperating witnesses play the press; Michael Avenatti got in trouble for scheduling a press appearance around testimony. But that’s all the more true of Mueller. Indeed, a central part of Mueller’s argument that Papadopoulos offered no cooperation to prosecutors is that he took part in a NYT story in December.

Following the proffer sessions in August and September 2017, the government arranged to meet again with the defendant to ask further questions in late December 2017. However, upon learning that the defendant had participated in a media interview with a national publication concerning his case, the government canceled that meeting. (PSR ¶ 50). The government is aware that the defendant and his spouse have participated in several additional media interviews concerning his case.

Cohen has been all over the media since before they first proffered testimony (which as I understand it was some time ago). Having done that, there was little chance Mueller was going to buy what Cohen was offering publicly.

Mueller may intend to indict Cohen for his own role in the conspiracy

This part is speculative. But I think Mueller may be at the point where he’s preserving the maximal criminal liability of key conspirators. Already, he has limited the protection offered to cooperating witnesses aside from Rick Gates. Of particular note, Mike Flynn (whose latest sentencing continuation just got extended 24 days, to the date Manafort’s next trial starts) is only protected for the lies he told FBI and a FARA filing; he’s still exposed for his own role in the Russia conspiracy.

So it may well be that Mueller won’t give Cohen a cooperation agreement because he believes he can get to Cohen’s exposure on the Russia conspiracy (via witnesses like Felix Sater, who has been “cooperating’ for some time) with the evidence he has, and so sees no reason to limit that exposure for evidence he also already has from other witnesses.

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

Trump’s Pecker Got Him in Legal Trouble Before Conspiring with Russia Did

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It was a three ring circus among top Trump advisors today: Jurors found Paul Manafort guilty on 8 counts (the jury was hung on the other 10); Michael Cohen pled guilty to 8 counts, and Mueller’s team continued Mike Flynn’s sentencing for 24 days, with a status report due September 17.

The big takeaway, however, is that Trump got named in a criminal information for his extramarital affairs before his conspiring with Russia did. [I’ve rewritten this headline, replacing “Dick” with “Pecker,” in honor of the National Enquirer’s role and so Democracy Now can show the headline tomorrow when I appear.]

Trump’s hush payments make it into Michael Cohen’s guilty plea

The Cohen plea — which developed quickly and reportedly came under pressure to plead before an indictment got filed this week — covered five tax charges, one false statement to a financial institution, one unlawful corporation contribution tied to Cohen’s quashing of a National Enquirer story on Karen McDougal, and one excessive campaign contribution tied to Cohen’s hush payment to Stormy Daniels. The first reference to Donald Trump — named as Individual 1 — is the 46th word in the in the criminal information.

From in or about 2007 through in or about January 2017, MICHAEL COHEN, the defendant, was an attorney and employee of a Manhattan-based real estate company (the “Company”). COHEN held the title of “Executive Vice President” and “Special Counsel” to the owner of the Company (“Individual-1”).

Cohen will reportedly face three to five years in prison and substantial fines.

In his plea, Cohen stated that he made the hush payments at the direction of a candidate — Trump was not named — knowing the payments violated campaign finance law. Here’s how those paragraphs appear in the information:

42. From in or about June 2016, up to and including in or about October 2016, in the Southern District of New York and elsewhere, MICHAEL COHEN, the defendant, knowingly and willfully caused a corporation to make a contribution and expenditure, aggregating $25,000 and more during the 2016 calendar year, to the campaign of a candidate for President of the United States, to wit, COHEN caused Corporation-1 to make and advance a $150, 000 payment to Woman-1, including through the promise of reimbursement, so as to ensure that Woman-1 did not publicize damaging allegations before the 2016 presidential election and thereby influence that election.

44. On or about October 27, 2016, in the Southern District of New York and elsewhere, MICHAEL COHEN, the defendant, knowingly and willfully made and caused to be made a contribution to Individual-1, a candidate for Federal office, and his authorized political committee in excess of the limits of the Election Act, which aggregated $25,000 and more in calendar year 2016, and did so by making and causing to be made an expenditure, in cooperation, consultation, and concert with, and at the request and suggestion of one or more members of the campaign, to wit, COHEN made a $130,000 payment to Woman-2 to ensure that she did not publicize damaging allegations before the 2016 presidential election and thereby influence that election.

For all the legal trouble his top aides have gotten in, this is the first time (aside from his cameo calling on Russia to find Hillary’s “missing” emails in the GRU indictment) where Trump has been implicated directly.

Thus the headline: His dick [update: Pecker] got him in trouble before his conspiring with Russia did.

There was reportedly not cooperation agreement attached to this plea. I suspect he will be or already has cooperated, however.

Contrary to what some of NYT’s hacks say, this doesn’t mean his dick got him in more trouble than he’ll face in the Russian inquiry: just that that will take a bit longer.

Update: As bmaz noted to me, once he pleads on the Stormy Daniels charge, he loses his Fifth Amendment rights, so the Daniels suit against him can go forward — and with it the deposition of Trump.

Like Cohen, Paul Manafort is a tax cheat

Literally at the same time Cohen was pleading guilty, the jury in the Manafort case declared themselves hopelessly at odds on 10 charges, but found Manafort guilty of 8. Like Cohen, he is guilty of 5 counts of tax fraud. He was found guilty on one FBAR charge for not identifying foreign holdings (my suspicion in the other FBAR charges were hung because it was unclear whether the corporations that held the money faced the same liability). And Manafort was found guilty on two of the bank fraud charges. Per Politico, he was not found guilty on the charges involving payoffs related to the Trump campaign.

Manafort’s next trial starts in 27 days, and if Mueller wants a retrial on the remaining 10 charges here he could get that. Though he has bigger fish to fry.

Mueller thinks Mike Flynn will be done cooperating in the near future

While it’s far less sexy than the trouble Trump’s dick got him in, I’m most fascinated by the status report in the Mike Flynn case. While they’re continuing the sentencing process again (meaning he’s still cooperating), they’re asking for a status report on September 17, the same 27 days away as Manafort’s next trial.

That suggests they may be done with whatever they need Flynn to do in the near future.

Things are picking up steam.

Should Trump Run: Don McGahn Has Been Covering for Roger Stone’s Pro-Trump Rat-Fucking for Seven Years

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It has become clear to me that today’s big puff piece in the NYT about Don McGahn was designed to hide that Mueller is challenging the White House Counsel, former FEC Commissioner, and Trump campaign finance advisor on past work he has done for Trump.

One of those things must be McGahn’s effort, while at FEC in 2011, to stymie any investigation into a PAC involving Roger Stone and Michael Cohen, called Should Trump Run.

As I’ve noted, in 2011, one of the people closely involved in Stone’s 2016 rat-fucking, Pamela Jensen, was involved in a 527 called ShouldTrumpRun that listed Michael Cohen as President.

The organization was apparently laundering Trump corporate cash into campaign spending. But when the issue came before the FEC, Commissioner Don McGahn helped kill an investigation into it.

During McGahn’s FEC tenure, one of those he helped save from enforcement action was Trump himself. In 2011, when the future president-elect was engaged in a high-profile process of considering whether to enter the 2012 race for the Republican presidential nomination, Trump was formally accused in an FEC complaint of violating agency regulations. The case was dismissed on a deadlocked vote of the FEC commissioners.

A four-page complaint filed by Shawn Thompson of Tampa, Fla., accused Trump of illegally funneling corporate money from his Trump Organization into an organization called ShouldTrumpRun.com. McGahn and fellow FEC Republicans Caroline Hunter and Matthew Petersen voted to block FEC staff recommendations that Trump be investigated in the matter—designated Matter Under Review (MUR) 6462.

Ultimately, Trump opted not to run for president in 2012. Nonetheless, FEC staff attorneys concluded his activities before that decision may have violated campaign finance rules regarding money raised to “test the waters” for a candidacy. A staff report from the FEC Office of General Counsel, based largely on news articles and other documents about Trump’s flirtation with running for president—including Trump’s own quoted statements— recommended that the commissioners authorize a full FEC investigation backed by subpoena power.

FEC Democrats voted to pursue the recommended probe, but the votes of McGahn and the other FEC Republicans precluded the required four-vote majority needed for the commission to act.

McGahn and Hunter issued a “ statement of reasons” explaining their votes in the Trump matter in 2013. The 11-page statement blasted FEC staff attorneys in the Office of General Counsel for reviewing volumes of published information regarding Trump’s potential 2012 candidacy in order to determine whether to recommend that the FEC commissioners vote to authorize a full investigation. McGahn and Hunter argued that the FEC counsel’s office was prohibited from examining information other than what was contained in the formal complaint submitted in the case.

The Office of General Counsel shouldn’t be allowed to pursue an “unwritten, standardless process whereby OGC can review whatever articles and other documents not contained in the complaint that they wish, and send whatever they wish to the respondent for comment,” the Republican commissioners wrote.

Jensen, her family, and Stone teamed up on a number of equally dubious efforts in 2016, including a 527 called Stop the Steal, which McGahn provided legal protection for in both its early (convention focused) and its late (Democratic voter suppression) incarnations. The latter effort at least paralleled Russian voter suppression efforts.

In other words, White House Counsel Don McGahn — the subject of a Maggie and Mike puff piece suggesting he would only be of interest on the obstruction investigation — has for at least seven years been right in the thick of defending Roger Stone’s legally dubious rat-fucking on behalf of Donald Trump.

And Roger Stone has been the focus of Mueller investigation for six months.

Those are the same six months during which Maggie and Mike have been pushing an increasingly absurd claim that Trump and his associates are only at risk in an obstruction investigation, not the conspiracy investigation McGahn has surely been questioned in.

The Dossier as Disinformation: Why It Would Matter

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

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

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

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

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

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

How accomplished were the Russians at hacking

Steele claim, July 26, 2016:

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

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

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

The operation presents several interesting aspects

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

[snip]

Recent CozyDuke APT activity attracted significant attention in the news:

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

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

Actions Democrats might have taken

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

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

Steele claim, December 13, 2016:

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

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

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

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

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

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

[snip]

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

Actions Democrats might have taken

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

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

What kompromat did Russia plan to leak on Hillary

Steele claim, June 20, 2016:

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

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

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

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

[snip]

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

Actions Democrats might have taken

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

Who managed outreach to Russia

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

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

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

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

[snip]

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

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

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

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

If he needs private briefings we can accommodate.

Actions Democrats might have taken

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

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

Whether both sides were comfortable with ongoing operations

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

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

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

July 27, 2016, Donald Trump:

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

July 27, 2016:

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

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

Actions Democrats might have taken

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

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

Steele claim, October 19, 2016:

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

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

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

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

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

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

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

[snip]

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

Actions Democrats might have taken

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

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

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

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

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

The Non-EDVA Manafort Thread: Paulie Continues to Work for His Pardon

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Today, a bunch of stalwart journalists are fighting the back-asswards conditions in Alexandria’s courthouse to bring breaking news from the first day of Paul Manafort’s tax evasion trial. In this post, I’m going to look at a few details that have happened outside of the courthouse

Yesterday, The Daily Beast provided some kind of an explanation for Rudy Giuliani’s weird TV meltdown yesterday. It turns out Rudy was (successfully) pre-empting a NYT story.

The day began with a morning interview with Fox & Friends, during which Giuliani insisted that “collusion [with Russian election-meddlers] is not a crime” in the first place. He then headed to CNN where he proceeded to, ostensibly, break a bit of news about the infamous Trump Tower meeting that the president’s son took with a Russian lawyer reportedly tied to Kremlin officials.

Two days before that meeting, Giuliani relayed, former Trump attorney and fixer Michael Cohen claimed that there was a separate meeting; this one, involving five people, including Cohen himself. According to Giuliani, three of the five people in that supposed meeting told him “it didn’t take place.” Not only that, they had done so “under oath on it and the other two couldn’t possibly reveal it because [Special Counsel Robert] Mueller never asked us about it.”

“You get to the other meeting he says he was at, that the president wasn’t at…with Donald [Trump] Jr., Jared [Kushner], [Paul] Manafort…[Rick] Gates and one other person. Cohen also now says that—he says too much—that two days before he was participating in a meeting with roughly the same group of people—but not the president, definitely not the president—in which they were talking about the strategy of the meeting with the Russians,” Giuliani continued. “The people in that meeting deny it, the people who we’ve been able to interview. The people we’ve not been able to interview have never said that about that meeting.”

[snip]

In subsequent interviews on Monday, the president’s lawyer claimed that, in fact, he was only speaking off of as-yet unverified details from reporters who had contacted Team Trump to ask about the planning meeting.

Giuliani told The Daily Beast that this included reporters from The New York Times, such as the paper’s star Trump reporter Maggie Haberman, who had reached out about the alleged pre-meeting meeting. So, he added, “Jay [Sekulow] and I spent a great deal of [Sunday] trying to run it down.”

Giuliani said that he believes they managed to “shut it down” and help kill the story, and speculated the journalists had also found other reasons not to run the item. Giuliani and Sekulow—according to Giuliani—had to “go to [alleged participants’] lawyers, and they had to go back to their notes, because nowadays no one wants to be inaccurate”—a rather ironic statement.

As others have noted, this explanation may be most interesting for the glimpse it offers on the Joint Defense Agreement, in which Rudy can call up other potential defendants’ lawyers and agree on a story. And, after consulting with these other lawyers, Rudy appears to claim the following:

  • At a June 7 meeting attended by Jr, Jared, Manafort, Gates, one other person, and Cohen, strategizing the Russian meeting did not come up.
  • At another meeting, reportedly including the President and four of the six who attended the June 7 meeting, he was not told about the Russian meeting.

Also, collusion is not a crime because only hacking is.

Rudy provides us some clues here. Rudy’s says that three of five people in the meeting including Trump told Mueller it didn’t happen and the other two weren’t asked about it by Mueller. Those other two must be Don and his spawn, because they haven’t been interviewed by Mueller. But if that’s the case, the math actually works out to just two people telling Mueller it didn’t happen, because Cohen also hasn’t been interviewed. There’s a 66% chance that Manafort and Gates are the ones who told Mueller it didn’t happen.

Then there’s the June 7 meeting — a meeting on the same day that Manafort also had a meeting with Trump, and the day that Trump promised a report on Hillary in the upcoming days (so a day when the campaign would have been strategizing a Hillary attack of one sort or another). Rudy suggests that meeting was attended by someone or someones who they haven’t been able to interview, but who nevertheless have never said anything about strategizing the Russia meeting. Perhaps this is just a reference to Cohen, a way of claiming he never said this before. Or perhaps there’s someone else who’s not part of the JDA.

Notice how this story, thus far, relies on Junior (who has not been interviewed and clearly is a target) and Gates (who has subsequently flipped) and Manafort (whose first trial just started)?

Given the centrality of Manafort in this story — and Trump’s prior admission that Manafort could incriminate him — I’m particularly interested in this other bit from Rudy, suggesting the possibility that Manafort has flipped and “lied.” (h/t CH)

They’re putting Manafort in solitary confinement — which sounds more like Russian than the US — in order to get him to break. And maybe they’ve succeeded in cracking this guy, and getting him to lie. I don’t know. I’m not sure of that.

So Cohen may (or may not) be blabbing about stories that greatly incriminate Trump. To rebut them, his lawyer is taking to the cable shows to reveal multiple previously undisclosed meetings, and assuring the public that those who either were or maybe just the people who remain in a JDA with the President say it didn’t happen. Which leaves Gates, who has flipped, and Manafort, whom Rudy is obviously worried might flip.

Meanwhile, as he was heading into his client’s trial this morning, Manafort lawyer Kevin Downing apparently said there was “no chance” his client would flip to avoid trial. From whence Downing proceeded to go spend much of his opening argument blaming Gates for Manafort’s epic corruption. Here’s HuffPo.

An attorney for former Trump campaign manager Paul Manafort told jurors during opening arguments in his tax and bank fraud trial on Tuesday that Manafort’s longtime aide Rick Gates ― now a witness for special counsel Robert Mueller ― is a liar who can’t be trusted.

Manafort, attorney Tom Zehnle told jurors, made a mistake in “placing his trust in the wrong person” who was now willing to say anything to keep himself out of trouble. Zehnle told jurors that Manafort “rendered a valuable service to our system of government” because of his involvement in multiple presidential campaigns.

And here’s Reuters.

“Rick Gates had his hand in the cookie jar,” defense attorney Thomas Zehnle said in opening statements at Manafort’s trial in federal court in Virginia. “Little did Paul know that Rick was lining his own pockets.”

Meanwhile, several developments in Manafort’s cases happened outside the courtroom. First, he dropped his challenge to Mueller’s authority in the DC Circuit. The DC Circuit denied his bid to get out of jail during this and while awaiting his DC trial, based primarily on the additional witness tampering charges that followed Amy Berman Jackson’s warnings about violating her gag order.

Most interesting however, was this exchange. Last night, Manafort asked for a 25-day delay in a pre-trial report he has to submit jointly with the prosecution in his DC case, citing his ongoing EDVA trial. But as the scathing response made clear, he brought that on himself when he refused to waive venue for these tax charges and instead took his chances with two trials.

[T]he Court’s August 1, 2018, deadline is no surprise; it has been in place for five months, when this Court entered its Scheduling Order on March 1, 2018. (Doc. 217). Nor was it a surprise that Manafort (like the government) would need to prepare for two trials when Manafort elected to have two trials. Indeed, this Court advised the defense that the defendant’s choice to have two trials might well result in “a trial in the Eastern District of Virginia before this one. So you may want to keep that in mind.”

More interesting, the Mueller team described how Manafort has spent the last two weeks accepting details of the government’s plan in the DC case, without reciprocating or warning them he was going to ask for a delay.

[T]he government spent the last two weeks making disclosures to Manafort of all of the different components required by the joint pretrial statement. The government furnished to the defense: (a) a proposed joint statement of the case; (b) an estimate of the length of the government’s case-in-chief; (c) proposed jury instructions; (d) a notice of intended expert witnesses; (e) an exhibit list; (f) all proposed stipulations; (g) a proposed special jury instruction (in lieu of a list of matters for the Court to take judicial notice); and (h) a proposed verdict form.1 Notably, the government identified a list of hundreds of exhibits—with Bates numbers and descriptions—it intends to use at trial, giving the defense a roadmap of its case. With each submission to the defense, the government asked the defense to alert it to its position, so the government could inform the Court in the joint statement due on August 1, 2018. Not once did Manafort respond, in any way, to any of the government’s disclosures. Similarly, the defense produced no reciprocal materials to the government.

When Manafort dropped his challenge to Mueller’s authority, some wondered whether that was a sign he’s about to flip. But this ploy with the DC schedule makes it clear he continues to do what he has been doing from the start: using his trials as an effort to discredit Mueller as much as possible, while obtaining as much information about the case in chief — the conspiracy with Russia.

As I’ve said repeatedly, that seems to be the terms of his pardon deal with Trump: he spends his time discrediting the Russian conspiracy case, and in the future, Trump may reward him in kind.

Given that Gates may actually have already told Mueller about the meetings Rudy is trying to deny, I expect more attacks in Rick Gates in the coming weeks, then.