In a press conference after Defendant-1’s arraignment yesterday, Alvin Bragg explained that he reconsidered bringing this case because new information — both newly available witness(es) and evidence — had come to him that change the way he thought of the case.
The witnesses may be one or both of Kellyanne Conway or Hope Hicks, both of whom testified to the grand jury, both of whom will have backed Michael Cohen’s claims about what went down in 2016.
The new evidence may be something from Trump’s taxes (the statement of facts briefly notes that “the participants
also took steps that mischaracterized, for tax purposes” the hush money payments) or something that came out of the Trump Organization trial last year.
But I can’t help but wonder whether, in his attempt to stave off a Trump indictment last month, Robert Costello provided new information to Bragg.
I say that because one of the only new details in the statement of facts is that, after writing Cohen on April 20, 2018 to reassure him that he had “friends in high places” (which made the Mueller Report and was also included in the SOF), Costello emailed Cohen again on June 14, 2018, urging him not to plead again. This email is not included in the Mueller Report.
On or about June 14, 2018, Lawyer C emailed Lawyer A a news clip discussing the possibility of Lawyer A cooperating, and continued to urge him not to cooperate with law enforcement, writing, “The whole objective of this exercise by the [federal prosecutors] is to drain you, emotionally and financially, until you reach a point that you see them as your only means to salvation.” In the same email , Lawyer C, wrote, “You are making a very big mistake if you believe the stories these ‘journalists’ are writing about you. They want you to cave. They want you to fail. They do not want you to persevere and succeed.”
In hubristic interviews after his testimony to the grand jury — which he claimed to be sure would stave off an indictment — Costello described that prosecutors were narrowly focused on six emails he provided them, rather than a whole binder of emails that, Costello claimed, would totally discredit Cohen as a witness (but not Kellyanne, Hope Hicks, or David Pecker, which is a testament to the limits of his understanding of the case).
Presumably, this email is one of the ones they focused on.
If Costello’s attempt to stave off the indictment actually hastened it, it wouldn’t be the first time. Costello had two exchanges with federal prosecutors (and FBI agents) in a November 2021 attempt to stave off Steve Bannon’s indictment for contempt. Prosecutors treated him as a witness. Among the other damning things he told them is that he advised Bannon to BEWARE because he could be referred for prosecution if he totally blew off the subpoena from the January 6 Committee. He also made it clear that Bannon did not have an explicit executive privilege invocation.
It would be especially remarkable if Costello provided Bragg with emails that he previously didn’t have, because that might mean that Cohen didn’t have everything accessible himself. It might mean DOJ didn’t consider all the evidence about Costello’s attempt to influence Cohen’s testimony.
And in this case, there can be no misunderstanding that he will be treated as a witness. Trump sent Costello as a witness, his witness. His testimony is now locked in.
That testimony necessarily covers one of the only previously unpublished details in the entire narrative. Costello himself may be one of the new witnesses.
https://www.emptywheel.net/wp-content/uploads/2023/04/Screenshot-2023-04-05-at-09.32.29.png10862070emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2023-04-05 04:51:072023-04-05 04:58:16Did Robert Costello Inadvertently Provide New Evidence against Defendant-1?
Among the things Trump said in his tweet yesterday complaining that he had been “indicated” is that his criminal prosecution was “a continuing attack on our once free and fair elections.”
Thanks to the former President for reminding us what the charges against him, in part, are about: That he cheated to win.
Whether it would have made a difference or not, Donald Trump believed it sufficiently important to lie to American voters about fucking two women– both Karen McDougal and Stormy Daniels — that both were paid in the last months of his 2016 campaign to prevent voters from finding out.
Paying his former sex partners to hide from voters that he cheated on Melania is not, itself, illegal.
Having corporations pay sex workers for the purpose of benefitting a political campaign is. The company that owned the National Enquirer paid for the first payment, to McDougal; Trump Organization, by reimbursing the payment that Michael Cohen made, eventually paid for the second payment, to Daniels.
The charges brought against Trump in NY reportedly relate, at least in part, to the second payment — to the treatment of the reimbursement to Cohen as a legal retainer rather than a reimbursement for a political donation. That is, the cheapskate billionaire, who could have legally paid off the women himself, allegedly covered up his cover-up.
Trump’s eponymous corporate persons have already been found guilty of serving as personal slush funds. In 2019, he admitted the Trump Foundation had engaged in self-dealing. And last year, a jury convicted Trump Organization of compensating employees via untaxed benefits rather than salary.
The new charges against Trump aren’t so much unprecedented, as they simply charge Trump’s biological person with the same crimes for which his corporate persons have already been convicted.
But there’s more history here, too. On multiple occasions, agents of Donald Trump reportedly engaged in further attempts to cover-up this cover-up.
Trump Organization withheld multiple documents from investigators. Most known documents that were withheld — such as the email showing Cohen had a substantive conversation with a Dmitri Peskov aide during the election — pertain to Russia, but it’s certainly possible they withheld others.
In 2018, in the days after SDNY seized phones that included recordings of conversations about the hush payments, Trump is suspected of floating a pardon to Cohen to keep him quiet, about this and about the impossibly lucrative Trump Tower deal both had lied to hide from voters in 2016.
In an email that day to Cohen, [Robert] Costello wrote that he had spoken with Giuliani.1026 Costello told Cohen the conversation was “Very Very Positive[.] You are ‘loved’. . . they are in our corner. . . . Sleep well tonight[], you have friends in high places.”1027
Cohen said that following these messages he believed he had the support of the White House if he continued to toe the party line, and he determined to stay on message and be part of the team.1028 At the time, Cohen’s understood that his legal fees were still being paid by the Trump Organization, which he said was important to him.1029 Cohen believed he needed the power of the President to take care of him, so he needed to defend the President and stay on message.1030
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
Note that the payments for Cohen’s legal fees — which stopped after he pled guilty — are another expense that Trump Organization may not have accounted for properly.
Later in 2018, during the period where he was feigning cooperation with Mueller’s prosecutors but really just stalling past the midterm elections, Paul Manafort attempted to lie about some aspect of a different investigation
Manafort gave different versions of events surrounding an incident in the summer 2016 that was potentially relevant to the investigation: one version that was more incriminating was given prior to signing the plea agreement (on September 13, 2018), and another that was more benign was made after on October 5, 2018, after his plea. When confronted with the inconsistency by the government and his own counsel, Manafort largely retracted the second version.
A footnote in that discussion cites the Cohen plea, suggesting the 2016 conversations that Manafort lied to prosecutors in an attempt to spin pertained to these hush payments.
83 See United States v. Cohen, 18-cr-602 (S.D.N.Y. 2018); Information, United States v. Cohen, 18-cr602 (S.D.N.Y Aug. 21, 2018) (Doc. 2).
Unlike Cohen, of course, Manafort did get a pardon.
In the months after Cohen’s plea, Main DOJ attempted to interfere in the Cohen investigation repeatedly, as laid out in Geoffrey Berman’s book. They did so first on Rod Rosenstein’s orders, by demanding the SDNY rewrite Cohen’s statement of offense to hide the degree to which Trump ordered the hush payments (Rosenstein’s deputy, Ed O’Callaghan tried to eliminate all reference to Individual-1).
We then sent a copy to Rod Rosenstein, informing him that a plea was imminent. The next day, Khuzami, who was overseeing the case, received a call from O’Callaghan, Rosenstein’s principal deputy.
O’Callaghan was aggressive.
Why the length, he wanted to know. He argued that now that Cohen is pleading guilty we don’t need all this description.
[Robert] Khuzami responded, What exactly are you concerned about? O’Callaghan proceeded to identify specific allegations that he wanted removed, almost all referencing Individual-1.
It quickly became apparent to Khuzami that, contrary to what O’Callaghan professed, it wasn’t the overall length or detail of the document that concerned him; it was any mention of Individual-1.
[snip]
The team was tasked with the rewrite and stayed up most of the night. The revised information, now twenty-one pages, kept all of the charges but removed certain allegations, including allegations that Individual-1 acted “in concert with” and “coordinated with” Cohen on the illegal campaign contributions. The information now alleged that Cohen acted in concert and coordinated with “one or more members of the campaign.” But in the end, everything that truly needed to be in the information was still there.
Then, after Bill Barr came in, he amazingly tried to order SDNY to dismiss the charges against Cohen entirely, the functional equivalent of what he tried with Mike Flynn, undoing a successful criminal prosecution after the fact.
When Barr took over in February 2019, he not only tried to kill the ongoing investigations but—incredibly—suggested that Cohen’s conviction on campaign finance charges be reversed.
Barr summoned Rob Khuzami in late February to challenge the basis of Cohen’s plea as well as the reasoning behind pursuing similar campaign finance charges against other individuals. Khuzami was told to cease all investigative work on the campaign finance allegations until the Office of Legal Counsel, an important part of Main Justice, determined there was a legal basis for the campaign finance charges to which Cohen pleaded guilty—and until Barr determined there was a sufficient federal interest in pursuing charges against others.
Barr had Steven Engel write up an OLC opinion about the charges (which is likely one of the reasons SDNY didn’t charge Trump).
About six weeks later, Khuzami returned to DC for another meeting about Cohen. He was accompanied by Audrey Strauss, Russ Capone, and Edward “Ted” Diskant, Capone’s co-chief. Barr was in the room, along with Steven Engel, the head of the Office of Legal Counsel, and others from Main Justice. A fifteen-page memo, drafted by Engel’s office, had been provided to our team the day before, which they were still analyzing. I learned later that it was an intense meeting.
When SDNY refused to dismiss the case against Cohen, Barr tried to transfer the case to EDNY, under Richard Donoghue, so he could kill it.
About a week after our office tussled with Barr and Engel, Barr attempted to do just that. Word was passed to me from one of Barr’s deputies that he wanted Richard Donoghue, the US Attorney for the Eastern District of New York (who would later transfer to Main Justice to work under Barr), to take over supervision of anything I was recused from.
At the same time that Barr was trying to cover up that Trump cheated to win in 2016, Republicans on the FEC were joining in the cover-up. After FEC’s General Counsel recommended acting on several complaints about the payments, Republican Commissioners Sean Cooksey and Trey Trainor refused to do so because, they said, Michael Cohen had already been prosecuted for it and, thanks to Trump’s own actions, there was a backlog of other complaints.
Before the Commission could consider the Office of General Counsel’s (“OGC”) recommendations in these matters, Mr. Cohen pleaded guilty to an eight-count criminal information,2 and in connection thereto admitted, among other things, to making an excessive contribution in violation of the Act by making the Clifford payment from his personal funds. 3 The plea hearing transcript includes a step by step review of how U.S. District Judge William Pauley verified the plea, confirming that a federal judge was sufficiently satisfied with the circumstances surrounding the plea deal and the responses given by Cohen at the hearing, including the explanations given by Cohen, count by count, during his allocution.4 Ultimately Mr. Cohen was sentenced to three years in prison and ordered to pay $1.39 million in restitution, $500,000 in forfeiture, and $100,000 in fines for two campaign finance violations (including the payment at issue in these matters) and other charges. In sum, the public record is complete with respect to the conduct at issue in these complaints, and Mr. Cohen has been punished by the government of the United States for the conduct at issue in these matters.
Thus, we concluded that pursuing these matters further was not the best use of agency resources.5 The Commission regularly dismisses matters where other government agencies have already adequately enforced and vindicated the Commission’s interests.6 Furthermore, by the time OGC’s recommendations came before us, the Commission was facing an extensive enforcement docket backlog resulting from a prolonged lack of a quorum, 7 and these matters were already statute-of-limitations imperiled.
This was one of 22 credible campaign finance allegations against Trump that Republicans refused to consider, nothing less than a partisan effort to make the leader of their party immune from all campaign finance rules.
There’s a lot of shite being written about how the indictment of a former President — for actions that stem from cheating to win — will test democracy.
But Trump’s serial cover-ups of his own actions in this and other matters already threaten democracy.
Trump is right: This is about free and fair elections. This is, like most of his allegedly criminal behavior, about his refusal to contest elections fairly. It’s about his corruption of the entire Republican Party, from top to bottom. And it’s about one of at least six times that Trump and his agents have tried to cover up that he cheated to win in 2016.
https://www.emptywheel.net/wp-content/uploads/2023/03/Trump-Indicated.png4521156emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2023-03-31 06:59:572023-03-31 13:25:15Trump’s People Have Attempted to Cover Up That He Cheated to Cover Up Cheating in 2016 at Least Six Times
Today marks the calendar start of celebration season for Mr. EW and I; all our big dates are squished into a short period that, this year, might well culminate in the first of several indictments for the former President.
For the US political world, though, today marks crime-fraud exception day, the day that at least one of Trump’s attorneys will be obliged to testify about how Trump lied to his lawyers to try to get away with hoarding stolen classified documents.
Because Evan Corcoran (and possibly Georgia attorney Jennifer Little) will testify today, I thought it a good day to update the list of attorneys who were or have been witnesses or who may be subjects in one or more investigations into Trump.
Since the Stormy Daniels payment may lead to Trump’s first indictment, Michael Cohen gets pride of place at number one on this list, a reminder that for seven years, Trump lawyers have been exposing themselves to legal jeopardy to help him cover things up.
The following lawyers have all — at a minimum — appeared in subpoenas pertinent to one or another of the investigations into Donald Trump, and a surprising number have testified before grand juries, including at least three with (Executive Privilege) waivers. To be clear: Many have no legal exposure themselves, but are instead simply witnesses to the efforts made to keep Trump in line before they were replaced with lawyers who were willing to let Trump do whatever he wanted, legal or no. But some of these lawyers have had legal process served against them, and so may themselves be subjects of one or multiple investigations.
Michael Cohen (hush payment): convicted felon whose phones were seized April 9, 2018
Rudolph Giuliani (Ukraine, hush payment, Georgia, coup attempt): phones seized in Ukraine investigation April 28, 2021, received subpoena for billing records in fundraising investigation around December 2022
John Eastman (Georgia, coup attempt): communications deemed crime-fraud excepted March 28, 2022; phone seized June 22, 2022
Boris Epshteyn (stolen documents, coup attempt, Georgia): testified in Georgia grand jury; phone seized in September after which he retroactively claimed to have been doing lawyer stuff
Sidney Powell (fraud, coup attempt, Georgia): Subpoenas sent in fraud investigation starting in September 2021; testified before Georgia grand jury; appeared in November subpoena
Jenna Ellis (coup attempt and Georgia): Rudy’s sidekick, censured by CO Bar for lying serial misrepresentations, on June and November subpoenas
Kenneth Cheesbro (fake elector, Georgia): included in June and November subpoenas
Evan Corcoran (stolen documents): testified before grand jury in January, testifies under crime-fraud exception on March 24
Christina Bobb (coup attempt, Georgia, stolen documents): interviewed in October 2022 and appeared before grand jury in January, belatedly asked for testimony in Georgia
Stefan Passantino (coup attempt obstruction and financial): included in November subpoenas, alleged to have discouraged full testimony from Cassidy Hutchinson
Tim Parlatore (stolen documents): appeared before grand jury in December 2022
Jennifer Little (Georgia and stolen documents): ordered to testify under crime-fraud exception
Alina Habba (stolen documents, NYS tax fraud): testified before grand jury in January
Bruce Marks (coup attempt): included in November subpoena
Cleta Mitchell (coup attempt and Georgia): included in November subpoenas
Joshua Findlay (coup attempt): included in June subpoenas
Kurt Olsen (coup attempt): included in November subpoenas
William Olson (coup attempt): included in November subpoenas
Lin Wood (coup attempt): included in November subpoenas
Alex Cannon (coup attempt, financial, stolen documents)
Eric Herschmann (coup attempt, Georgia, financial, stolen documents)
Justin Clark (coup attempt and financial): included June and November subpoenas
Joe DiGenova (coup attempt): included in June and November subpoenas
Greg Jacob (coup attempt): grand jury appearances, including with Executive Privilege waiver
Pat Cipollone (coup attempt): grand jury appearances in summer and — with Executive Privilege waiver — December 2
Pat Philbin (coup attempt and stolen documents): grand jury appearances in summer and — with Executive Privilege waiver — December 2
Matthew Morgan (coup attempt): included in November subpoenas
Tim Parlatore is the latest addition to this list, based off someone’s decision to reveal Parlatore’s testimony to the stolen documents grand jury in December. As ABC reported, Beryl Howell ordered him to testify after he belatedly revealed that investigators he hired had found four documents with classification marks in a box brought back to Mar-a-Lago after the August 2022 search (he emphasizes that he did so without a subpoena, but this was an effort to stave off a finding of contempt).
The Dec. 22 testimony from attorney Timothy Parlatore was ordered after months of wrangling between Trump’s attorneys and officials in the Justice Department, who had grown increasingly concerned that Trump still continued to hold onto classified documents after more than 100 were discovered in the August 8 search, sources said.
In fact, just days before his testimony, Parlatore revealed to the DOJ and D.C. district court Judge Beryl Howell that a search of Mar-a-Lago conducted by Trump’s legal team on Dec. 15 and 16 had discovered four additional documents with classification markings, according to sources.
[snip]
While Judge Howell declined to hold Trump or his legal team in contempt at a Dec. 9 hearing, sources said, she did order Parlatore to testify on issues surrounding a signed certification he had provided that outlined the results of his team’s searches of locations where records responsive to the DOJ’s original subpoena could be located.
Howell also suggested at the hearing that Trump’s legal team include Mar-a-Lago in their list of locations to be searched again, despite the FBI’s previous court-authorized search of the property months earlier, sources said.
On Dec. 16, following a two-day search of Mar-a-Lago, Parlatore submitted a revised certification that acknowledged the discovery of the four additional documents in a closet near Trump’s office, sources said.
This explanation makes no mention of the classified folder found — presumably during the same search of Mar-a-Lago done at Howell’s suggestion — in Trump’s bedroom. Parlatore, who was brought in to do searches to give the patina of reliability to the earlier subpoena non-compliance, did not voluntarily hand over that folder; instead, DOJ subpoenaed it. In the wake of disclosures about that, Parlatore went on TV and made the ridiculous claim that the former President has nothing better to use to cover up a light on his bedside phone than random folders that once contained classified records, random folders that were not found during the FBI’s August 8 search.
Perhaps the most important detail this Parlatore-friendly story left out, however, is the way Trump’s team fought unsuccessfully to keep the names of the people who did the searches secret. After Howell ordered them to share those names in January, they testified before the grand jury, after Parlatore had already done so.
In this story, seeded the day before Corcoran testifies before the grand jury, that belatedly reveals Parlatore’s testimony before the grand jury, he makes claims of prosecutorial misconduct.
Parlatore, when reached for comment by ABC News, said, “I voluntarily and happily chose to go into the grand jury so that I could present my client’s case to them in the context of our search efforts. During my testimony, it was clear that the government was not acting appropriately and made several improper attempts to pierce privilege and, in my opinion, made several significant misstatements to the jury which I believe constitutes prosecutorial misconduct.”
Had Parlatore really believed something amounted to prosecutorial misconduct, we would have heard about it in December — though that would have required revealing how documents marked as classified got moved back to Mar-a-Lago after the August search. Had Parlatore really believed something amounted to prosecutorial misconduct, he would have said that on TV instead of sharing his bullshit story about covering up the light on a phone.
He didn’t. He didn’t make this claim until the night before Corcoran is set to testify about the adequacy of Mar-a-Lago searches Corcoran did six months before the one Parlatore did.
In between the time Parlatore testified to the grand jury in December and today, though, Parlatore made this bizarre claim about the possibility that Boris Epshteyn, described here as the gatekeeper between Trump and the lawyers, could be a subject of the investigation. (This story, dated March 14, followed the February 12 bullshit claim about the light by the side of the bed by just over a month.)
Mr. Epshteyn’s legal role with Mr. Trump, while less often focused on gritty legal details, has been to try to serve as a gatekeeper between the lawyers on the front lines and the former president, who is said to sometimes roll his eyes at the frequency of Mr. Epshteyn’s calls but picks up the phone.
“Boris has access to information and a network that is useful to us,” said one of the team’s lawyers, Timothy Parlatore, whom Mr. Epshteyn hired. “It’s good to have someone who’s a lawyer who is also inside the palace gates.”
Mr. Parlatore suggested that he was not worried that Mr. Epshteyn, like a substantial number of other Trump lawyers, had become at least tangentially embroiled in some of the same investigations on which he was helping to defend Mr. Trump.
“Absent any solid indication that Boris is a target here, I don’t think it affects us,” Mr. Parlatore said.
As I’ve noted, DOJ almost certainly believes that Trump still has classified documents. DOJ almost certainly believes that the searches Parlatore did in November and December not only weren’t adequate, but were proven to be inadequate when his investigators found classified documents that had been moved back to Mar-a-Lago after the initial search.
They tried to obtain those documents by holding lawyers who had attested to searches in contempt back in December. Instead, Beryl Howell made them do more investigation first, culminating in what may be the last order she issued as Chief Judge ordering Corcoran to testify.
One possible outcome of today’s testimony is that someone finally gets held in contempt, someone finally risks jail time until such time as an adequate search of all of Trump’s properties is conducted. And that may be why Tim Parlatore chose this moment to announce his inclusion on the ever-growing lists of Trump lawyers who may be witnesses or may be subjects of his investigations.
Update: Going through old posts and thought I’d link this one from August 23, 2022, where I noted that two of Trump’s lawyers were either witnesses or co-conspirators in the stolen document case. It seemed prescient then, but jeebus, the number turns out to be at least 11 by now.
https://www.emptywheel.net/wp-content/uploads/2018/04/Screen-Shot-2018-04-15-at-2.41.39-PM.png296447emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2023-03-24 07:17:042023-03-26 08:58:08Happy Crime-Fraud Exception Day, for Those Who Celebrate
When we left the mainstream Trump press corps on Friday afternoon, they were all focused on the decision by Beryl Howell to rule that some of Evan Corcoran’s testimony in the stolen document case was crime-fraud excepted. Sure, there were journalists using wildly exaggerated descriptions for the uniqueness or surprise of the development. But, on Friday, reporters covering Trump’s legal woes were providing factual descriptions of actual newsworthy developments.
At the time, there was a general awareness that an indictment from Alvin Bragg may come next week, but the focus was the stolen documents investigation, in part because some journalists appear to believe that the crime-fraud ruling was some new sign that Jack Smith believed a crime had been committed.
Then, on Saturday morning, on his failing social media platform, the former President tweeted out incitement that included the following, in all caps:
An unsubstantiated claim about illegal leaks probably based on Fox News reporting about efforts to prepare for potential violence as a response to a Trump indictment next week
An attack on Alvin Bragg’s record on crime
A claim Bragg is funded by George Soros, the kind of coded antisemitism Trump is including in virtually all his communications these days
An assertion that he would be charged on something that “numerous other prosecutors!” had debunked as a fairy tale
An overstatement of the degree to which he is leading in polls and an admission that he is the “former” President
A day, Tuesday, when he would be “arrested”
A call to “protest,” invoking one of the same cries used to incite a coup attempt on January 6, “take our country back”
The response was almost instantaneous, with one after another journalist screen-capping the tweet in its entirety, some like Kyle Cheney adding no other commentary other than, “🚨 Trumps says he expects to be arrested Tuesday,” with the siren adding to its inflammatory nature. Jonathan Lemire repeated select newsworthy bits — while still including the full screen cap — without mentioning the coded slur on Soros or labeling the entire tweet as obvious incitement; Lemire parroted Trump’s all caps for the purported timing and quoted the incendiary line also associated with January 6.
NEW: Trump is suggesting that he will be ARRESTED ON TUESDAY due to Manhattan DA probe
This is historic: he would be the first former president to be indicted
He urges his supporters to “Protest, take our nation back!”
The absolutely most hysterical tweet magnifying Trump’s words unfiltered came from Jared Holt, a supposed expert on radicalization online, who introduced Trump’s full tweet onto Twitter (where Trump has not tweeted under his own ID since being permitted back on) with the following:
It will be hard to think of a bigger tech moderation failure than if Trump uses the platforms he’s been allowed back onto (FB, YouTube, Twitter) to incite protests again.
As of this morning, Holt’s tweet, along with the screen cap of Trump’s tweet unfiltered, had garnered 230,000 views on Twitter, over 300 RTs and almost 1,700 likes. Lemire’s had garnered 300 quote tweets, almost 600 RTs, over 2,000 likes, and 1.3M views. Cheney’s had garnered 770 quote tweets, 1,200 RTs, 7,400 likes, and 2.6M views.
By publishing such an inflammatory tweet on Truth Social, Trump was rightly calculating that even people like Holt would help to make his unfiltered words go viral on Twitter, as Trump has consistently done during the period when he still remained banned on Twitter.
It’s like Pavlov’s dogs, pure reflexive behavior at this point: The more incendiary Trump’s tweets, the more quickly journalists rush to disseminate them unfiltered on Twitter.
Remarkably, neither Lemire nor Cheney noted the import of the fact that a habitual liar like Trump was only claiming that he expected to be arrested Tuesday, not that he knew he would be.
In its report on the tweet, NYT noted, even in the subhead, that the timing was unclear, but given that at least one more witness is expected to testify on Monday, a Tuesday arrest is unlikely. It further described that Trump’s team was already in discussions about how to minimize the kind of showy arrest Trump was promising on Truth Social. NYT went on to report how Trump’s team simply guessed the date of his arrest.
His indictment by a Manhattan grand jury is expected, but its timing is unclear.
[snip]
Two hours later, a spokesman issued a statement saying that Mr. Trump had not written his post with direct knowledge of the timing of any arrest,
[snip]
Prosecutors working for Mr. Bragg have signaled that an indictment of Mr. Trump could be imminent. But they have not told Mr. Trump’s lawyers when the charges — expected to stem from a 2016 hush money payment to a porn star — would be sought or an arrest made, people with knowledge of the matter said. At least one more witness is expected to testify in front of the grand jury, which could delay an indictment, the people said.
One of the people said that even if the grand jury were to vote to indict the former president on Monday, a Tuesday surrender was unlikely, given the need to arrange timing, travel and other logistics.
The statement from Mr. Trump’s spokesman did not explain how he had landed on Tuesday as an arrest date. One person with knowledge of the matter said that Mr. Trump’s advisers had guessed that it could happen around then, and that someone might have relayed that to the former president.
A lawyer for Mr. Trump, Susan R. Necheles, said that his post had been based on news reports,
Trump’s defense team is expected to be notified following any possible indictment and then they would engage in negotiations for surrender and an initial appearance.
Another witness is expected to testify Monday before the grand jury investigating the hush money payments, according to a source familiar with the investigation. It is not clear whether this would be the final witness before it votes on a possible indictment.
Trump’s team has said repeatedly that he will not accept an invitation to testify before the grand jury. But multiple sources familiar with his legal team’s thinking says that if there is an indictment, he would negotiate an agreed upon surrender date with the district attorney’s office.
Trump’s team has been huddled all week planning for various scenarios, including Trump traveling to New York as well as having a remote hearing where he stays at Mar-a-Lago, according to sources familiar with the meetings.
Some members of his legal team are advising Trump to ask for a remote appearance for security reasons should an indictment occur but it is unclear if he would agree to that as he has also discussed with his team wanting to give a statement at the courthouse, sources said.
But before it got to those details, CNN described that the tweet was just a political ploy based off a guess about timing.
The former president has been agitating for his team to get his base riled up and believes that an indictment would help him politically, multiple people briefed on the matter told CNN.
[snip]
Joe Tacopina, an attorney for Trump, later said the former president had based his claims on press reports.
“No one tells us anything which is very frustrating. President Trump is basing his response on press reports,” Tacopina said in a statement to CNN.
In other words, the most newsworthy detail in Trump’s tweet (beyond the incitement) — the day he would be charged — was just made up, a guess based off the same information all the rest of us have. It was nevertheless treated as newsworthy by a slew of journalists needing an excuse to disseminate unfiltered incendiary speech on Twitter. And no one has since gone back to amend their original tweets to note that Trump’s claims to know the date of his arrest were a lie.
Trump’s team simply guessed what day he’ll be charged so as to make a call to fight newsworthy enough for kneejerk journalists to help it go viral for him.
It worked.
It works every single fucking time Trump does this.
Every. Single. Time.
And it’s not just the fact that a bunch of journalists served as willing data mules for Trump’s incendiary tweet, bringing it onto Twitter for him and helping it to go viral in unfiltered form.
It’s the other effect the tweet had on reporting about Trump.
First, everyone completely dropped the significant development in a case that even a number of diehard Republicans think has real gravity, Trump’s refusal to return all the classified documents he stole. That story — a burning story late into Friday — utterly disappeared by Saturday morning. Trump is so good at playing the media that he can effectively just dictate what even CNN and MSNBC will cover. And his tweet managed to make that more damaging investigation — an investigation led by a white man rather than a Black one, and so harder to use to mobilize Trump’s most racist followers — completely disappear from coverage. Journalists who had broken key details about the crime-fraud ruling Friday were instead asked to cover Trump’s tweet on the cable shows on Saturday.
And it wasn’t just cable coverage that Trump’s incendiary tweet managed to dictate. One after another politician — Kevin McCarthy, Mike Pence, Elise Stefanik (who released then deleted multiple drafts before hers was sufficiently dripping in obsequious propaganda) — was forced to comment on the made up news that Trump has a date when he’ll be indicted. Even poor Asa Hutchinson, who was trying hard to launch a Presidential run that didn’t define itself entirely in terms of Trump, was forced to answer multiple questions about Trump’s tweet.
In other words, by releasing the tweet, Trump not only made it the sole focus of cable programming, but made it the leading political question of the day. He made the presidential race about him again, exclusively about him. And in the case of McCarthy and Stefanik — both of whom cling to power by ceaselessly performing their obeisance to Trump — made it a matter of loyalty, a political litmus test that Trump supporters and opponents alike would be required to publicly adhere to.
Finally, all this was done without any mention of the actual facts of the case. All this was done in a way guaranteed to short-circuit rational thought — that’s the point.
To be clear, I don’t know all that many people who are sure this is going to be a substantive indictment, and there are real questions about how it is not time-barred. Perhaps Bragg will surprise us, but even many lefties are skeptical about the legal soundness and wisdom of this indictment.
But the substance of it stems from Trump fucking a sex worker.
He fucked a sex worker then paid her to cover it up. And then, in his efforts to cover that up, Trump engaged in some dodgy corporate accounting. There may be other exacerbating factors, like witness intimidation. But this is about trying to cover up the fact that he fucked a sex worker so it wouldn’t harm his chances of becoming President.
This case involves a crime for which, under Jeff Sessions, SDNY prosecuted Trump’s personal lawyer, Michael Cohen. One reason Trump wasn’t prosecuted as a result is that Bill Barr interfered; Barr even tried to force SDNY to reverse Cohen’s prosecution. And when Cohen went to jail because he refused to cover up Trump’s efforts to cover up fucking a sex worker, Trump cut him off, making him a pariah. Trump’s tweet falsely claimed that multiple prosecutors had deemed this case bullshit when instead he means his own Attorney General engaged in breathtaking corruption to protect him from it.
We don’t know what the indictment includes. But we know it involves fucking a sex worker. And all the journalists repeating Kevin McCarthy’s bullshit comments about investigating this investigation, or Mike Pence’s comments about how measly an indictment this would be, are not making them go on the record about whether they think voters should know if someone is spending significant money — several times what most Trump supporters make in a year — to cover up that they fucked a sex worker. Does Mike Pence, that god-fearing Christian, think a man who paid six figures then engaged in financial fraud to cover up that he fucked a sex worker should be President? Let’s ask him.
That’s not happening, in significant part because Trump has gotten journalists to shed all rationality when reporting on this story. The point is to make this about emotion, not facts, and journalists’ immediate instincts accommodated that.
Because Trump went on offensive, the substance of the indictment — however flimsy or not — has been largely absent from any reporting on the case.
Trump has these journalists trained to act reactively, without taking the time first to figure out whether he was again making shit up (as he was in this tweet). He has these journalists trained to mindlessly help him disseminate antisemitic incitement on platforms he’s not a part of, usually without commentary identifying that’s what he’s doing. Trump is so good at exploiting journalists who know better that he has made them participants in his incitement.
And it could well get people killed.
Updated: Added the circulation numbers for the three tweets disseminating Trump’s incitement.
https://www.emptywheel.net/wp-content/uploads/2020/10/COVID-Don.png369304emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2023-03-19 08:08:462023-03-19 09:52:17Pavlov’s Press Corps: Trump Once Again Got Journalists to Willingly Serve as His Incitement Mules
As I noted, Judge Beryl Howell ended her tenure as DC’s Chief Judge yesterday decisively, ruling that Evan Corcoran must testify about topics she has found to be crime-fraud excepted.
By dint of age and tenure, Howell was appointed Chief Judge just in time to preside over the most remarkable set of investigations against a sitting and former President: the Mueller investigation and certain follow-on investigations, the January 6 investigation, and the stolen documents investigation.
And now Jeb Boasberg gets to pick up her work. Like Howell, he’s an Obama appointee; he already did a stint presiding over the FISA Court.
Howell’s decision requiring Corcoran to testify elicited all sorts of superlative language about the import of the decision. I’ll return to the number of other Trump lawyers against whom Howell has already approved legal process. The Corcoran decision really is not that unusual in the twin Jack Smith investigations. Or even in the other grand juries over which Howell has presided.
Indeed, the fruits of a warrant Howell approved on August 1, 2017 as part of an investigation into suspicious payments (especially those from Viktor Vekelselberg) to Michael Cohen’s Essential Consultants’ bank account, will likely yield Donald Trump’s first criminal indictment next week. Referrals of part of the resulting investigation to SDNY led to Cohen’s 2018 prosecution, including on the hush payments scheme. NYC has started making security preparations for Trump’s arrest on the same campaign finance scheme next week.
To repeat: a fairly uncontroversial decision Howell made six years ago — to approve the first of a series of warrants targeting Trump’s personal lawyer, Michael Cohen — will have played a part if and when Alvin Bragg indicts Trump next week.
Howell’s colleagues razzed her yesterday about all the secrets she may keep from the past seven years.
Howell seemed to freeze in her seat as the most senior jurist on the court, Judge Paul Friedman, publicly described her still-secret rulings in grand jury-related matters, pointing to press accounts of Howell ruling in favor of Trump in a contempt dispute over his office’s response to a grand jury subpoena for classified records and against Trump on an effort to assert attorney-client privilege in the same probe.
“What fascinating issues!” Friedman declared wryly as Howell remained stone-faced on the dais. “We’d all love to read her opinions, but we can’t,” he said to laughter.
Friedman did note, however, that Howell had issued 100 secret grand jury opinions during her seven-year term.
Another colleague, Judge Tanya Chutkan, also alluded to Howell’s work resolving disputes related to the court’s grand juries over the past seven years.
“There’s so much work Chief Judge Howell has done that we may never know about,” Chutkan said.
In an interview with Zoe Tillman, though, Howell suggested she expects some of it will be unsealed.
Howell said she was still processing the past seven years.
“A lot of my work in the grand jury arena remains under seal, so it is going to be very hard to say what my legacy will be until after some of that work gets unsealed and people are able to evaluate it,” she said.
I expect a good deal of her recent work will be unsealed, in fairly short order.
It bears reminding, though, that Judge Howell attempted to share information about what she had been overseeing in a grand jury with the House Judiciary Committee in 2019. In a 75-page opinion invoking the Federalist papers and defending separation of powers, Howell issued a ruling that should have been uncontroversial: that the House could have grand jury materials in contemplation of impeachment.
In her opinion, Howell cited a number of the things the House might get with grand jury testimony. They included Paul Manafort’s description of how Trump ordered him to chase the documents stolen from Hillary.
Again, the Mueller Report recounts an incident when then-candidate Trump spoke to associates indicating that he may have had advance knowledge of damaging leaks of documents illegally obtained through hacks by the Russians, stating “shortly after WikiLeaks’s July 22, 2016 release of hacked documents, [Manafort] spoke to Trump [redacted]; Manafort recalled that Trump responded that Manafort should [redacted] keep Trump updated. Deputy campaign manager Rick Gates said that . . . Manafort instructed Gates [redacted] status updates on upcoming releases. Around the same time, Gates was with Trump on a trip to an airport [redacted], and shortly after the call ended, Trump told Gates that more releases of damaging information would be coming.” Id. at II-18 (footnotes omitted) (redactions in original, with citation in footnote 27 redacted due to grand jury secrecy).
They included Don Jr’s refusal to testify to the grand jury about the June 9 meeting.
[A] discussion related to the Trump Tower Meeting contains two grand jury redactions: “On July 12, 2017, the Special Counsel’s Office [redacted] Trump Jr. [redacted] related to the June 9 meeting and those who attended the June 9 meeting.” Id. at II-105 (redactions in original).
They included Manafort’s details of his discussions with Konstantin Kilimnik.
The Mueller Report further recounts evidence suggesting that then-candidate Trump may have received advance information about Russia’s interference activities, stating:
Manafort, for his part, told the Office that, shortly after WikiLeaks’s July 22 release, Manafort also spoke with candidate Trump [redacted]. Manafort also [redacted] wanted to be kept apprised of any developments with WikiLeaks and separately told Gates to keep in touch [redacted] about future WikiLeaks releases. According to Gates, by the late summer of 2016, the Trump campaign was planning a press strategy, a communications campaign, and messaging based on the possible release of Clinton emails by WikiLeaks. [Redacted] while Trump and Gates were driving to LaGuardia Airport. [Redacted], shortly after the call candidate Trump told Gates that more releases of damaging information would be coming.
Id. at I-53–54 (footnotes omitted) (redactions in original, with citation in referenced footnote 206 redacted due to grand jury secrecy).
But Bill Barr’s DOJ, after having challenged the uncontroversial notion that the House should be permitted to receive what was obviously an impeachment referral, appealed to the DC Circuit, lost, and then stalled long enough to outlast Congress. Bill Barr effectively refused to let Congress receive and act on an impeachment referral. But Howell did her constitutionally mandated part.
It’s an action DOJ took during precisely the period when Barr was stalling long enough to outlast Congress that, in my mind, is the biggest secret Howell takes from her tenure: What happened with an investigation into a suspected $10 million donation in September 2016 from an Egyptian-owned bank that allowed Trump to stay in the race when he was running out of funds. Though aspects of the investigation were dribbled out in grand jury unsealings from Howell along the way, CNN first confirmed the Egyptian bank angle in 2020.
For more than three years, federal prosecutors investigated whether money flowing through an Egyptian state-owned bank could have backed millions of dollars Donald Trump donated to his own campaign days before he won the 2016 election, multiple sources familiar with the investigation told CNN.
The investigation, which both predated and outlasted special counsel Robert Mueller’s probe, examined whether there was an illegal foreign campaign contribution. It represents one of the most prolonged efforts by federal investigators to understand the President’s foreign financial ties, and became a significant but hidden part of the special counsel’s pursuits.
The investigation was kept so secret that at one point investigators locked down an entire floor of a federal courthouse in Washington, DC, so Mueller’s team could fight for the Egyptian bank’s records in closed-door court proceedings following a grand jury subpoena. The probe, which closed this summer with no charges filed, has never before been described publicly.
Prosecutors suspected there could be a link between the Egyptian bank and Trump’s campaign contribution, according to several of the sources, but they could never prove a connection.
Shortly after the investigation was killed, Barr went up to Hillsdale College and ranted about prosecuting corruption.
This criminalization of politics is not healthy. The criminal law is supposed to be reserved for the most egregious misconduct — conduct so bad that our society has decided it requires serious punishment, up to and including being locked away in a cage. These tools are not built to resolve political disputes and it would be a decidedly bad development for us to go the way of third world nations where new administrations routinely prosecute their predecessors for various ill-defined crimes against the state. The political winners ritually prosecuting the political losers is not the stuff of a mature democracy.
The Justice Department abets this culture of criminalization when we are not disciplined about what charges we will bring and what legal theories we will bless. Rather than root out true crimes — while leaving ethically dubious conduct to the voters — our prosecutors have all too often inserted themselves into the political process based on the flimsiest of legal theories. We have seen this time and again, with prosecutors bringing ill-conceived charges against prominent political figures, or launching debilitating investigations that thrust the Justice Department into the middle of the political process and preempt the ability of the people to decide.
This criminalization of politics will only worsen until we change the culture of concocting new legal theories to criminalize all manner of questionable conduct. Smart, ambitious lawyers have sought to amass glory by prosecuting prominent public figures since the Roman Republic. It is utterly unsurprising that prosecutors continue to do so today to the extent the Justice Department’s leaders will permit it.
Even at the time — with the Mike Flynn, Roger Stone, and Paul Manafort cases — it was clear that Barr was engaged in fairly unprecedented corruption of DOJ to protect Trump. Since then, we’ve learned of more. Most notably, as we await a potential Bragg indictment, Geoffrey Berman described how, after Cohen pled guilty in the hush payment case, Barr not only shut down any investigation of Trump on the charge, but attempted to reverse Cohen’s own prosecution.
While Cohen had pleaded guilty, our office continued to pursue investigations related to other possible campaign finance violations. When Barr took over in February 2019, he not only tried to kill the ongoing investigations but—incredibly—suggested that Cohen’s conviction on campaign finance charges be reversed.
Barr summoned Rob Khuzami in late February to challenge the basis of Cohen’s plea as well as the reasoning behind pursuing similar campaign finance charges against other individuals. Khuzami was told to cease all investigative work on the campaign finance allegations until the Office of Legal Counsel, an important part of Main Justice, determined there was a legal basis for the campaign finance charges to which Cohen pleaded guilty—and until Barr determined there was a sufficient federal interest in pursuing charges against others.
Barr even attempted to put supervision of the case in the hands of Richard Donoghue, as he did do with the Rudy Giuliani case.
Given that Barr didn’t think Trump should be prosecuted for the Cohen illegal contribution case, there’s no telling what he thought of the suspected Egyptian bank donation. Certainly, he was in complete control of DC USAO at the time, if he wanted to shut down an otherwise viable investigation.
We are, as Howell herself said, likely to know much of what she has been doing for the last two years. But her biggest secret is whether Bill Barr prevented DOJ from fully attempting to learn whether Donald Trump was beholden to Egypt or some other foreign country for the entirety of the time he served as President.
https://www.emptywheel.net/wp-content/uploads/2023/03/Screen-Shot-2023-03-18-at-10.30.18-AM.png758694emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2023-03-18 12:41:472023-03-18 13:18:19Beryl Howell’s Biggest Secret: Whether Bill Barr Killed the Egyptian Bank Investigation
On July 28, 2017, Robert Mueller’s investigators served two warrants on the company (probably Rackspace) that hosted Paul Manafort’s DMP emails to obtain Manafort, Rick Gates, and Konstantin Kilimnik’s company emails.
Mueller obtained several things with that warrant that remain unresolved. Those are just some of the many things about the Russian investigation — the one Jeff Gerth claims had no there, there — that remain unanswered, four years after Mueller closed up shop.
Manafort’s lies about the plan to carve up Ukraine
One thing Mueller obtained with that warrant would have been an email Manafort sent Konstantin Kilimnik on April 11, 2016, “How do we get whole” with Oleg Deripaska, Manafort asked. The email showed that Manafort was using his position as the “free” campaign manager for Donald Trump to fix his legal and financial woes.
Another was an email Kilimnik wrote, but did not send, on December 8, 2016, but which Manafort knew to and did read, a “foldering” technique to prevent interception also used by terrorists. The email referenced a plan to carve up Ukraine that Kilimnik had first pitched to Manafort on August 2, 2016.
Russians at the very top level are in principle not against this plan and will work with the BG to start the process of uniting DNR and LNR into one entity, with security issues resolved (i.e. Russian troops withdrawn, radical criminal elements eliminated). The rest will be done by the BG and his people.
[snip]
All that is required to start the process is a very minor ‘wink’ (or slight push) from DT saying ‘he wants peace in Ukraine and Donbass [sic] back in Ukraine’ and a decision to be a ‘special representative’ and manage this process.
The email — and a text Kilimnik sent around the same time — talked about “recreating old friendship” with Deripaska at an in-person meeting. Less than a month later, Manafort flew to Madrid and met with a different Deripaska associate.
Six years later, we don’t know the fate of Manafort’s efforts to “get whole” with Deripaska, to recreate that old friendship.
It’s something that Manafort promised to tell Mueller’s prosecutors on September 13, 2018, when he entered into a plea agreement that averted a damaging trial during the election season. But it’s something that, Judge Amy Berman Jackson found, Manafort lied to hide from prosecutors in the ensuing weeks. We know that the last thing on Manafort’s schedule before he met with Kilimnik on August 2, 2016 was a meeting with Trump and Rudy Giuliani. We know that during the period when Manafort was lying to hide what happened with this plan to carve up Ukraine, his lawyer was speaking regularly with Trump’s lawyer, Rudy Giuliani. We know that during the period when Rudy Giuliani was seeking campaign assistance from Ukraine, he was consulting with Manafort. We know that Trump tried to coerce Volodymyr Zelenskyy to enter into a quid pro quo on July 25, 2019, but was caught by a whistleblower. We know that Bill Barr went to extraordinary lengths to protect Rudy Giuliani from any consequences for his dalliance with Russian agents in Ukraine.
We know that on December 24, 2020, Donald Trump pardoned Manafort, rewarding him for his lies. Yesterday, a judge in Florida approved a $3 million fine to settle Manafort’s failure to reveal the money he earned from working in Ukraine, money Manafort got to keep as a result of Trump’s pardon.
SDNY alleges that even as Manafort was lying about his plans with Kilimnik in September 2018, a different Deripaska associate was cultivating recently retired FBI Special Agent in Charge Charles McGonigal, someone who could tell him about what DOJ was learning (or not learning) from Manafort. We know that Seth DuCharme, who played a key role in Barr’s efforts to protect Rudy, now represents McGonigal.
We know that after Trump’s efforts to exploit dirt from Ukraine failed and Joe Biden became President, Russia expanded its invasion of Ukraine, trying to achieve by force what it attempted to achieve by coercing Trump’s “free” campaign manager and his personal attorney.
When I wrote the last installment of my series demonstrating the false claims about “Russiagate” made by Jeff Gerth, I wrote a long passage (included below) that showed what Mueller was discovering in August 2017, a period when Gerth falsely claimed prosecutors had determined there was “no there, there” to Trump’s ties to Russia.
There was not only a lot there, where Gerth never bothered to look. In fact, the “there, there” remains unresolved and raw, six years later.
The investment in Michael Cohen
Take the investigation into Michael Cohen. One thing Mueller would discover in August 2017 is that Trump Organization was not fully complying with subpoenas, at least not subpoenas from Congress. As I noted in my piece, Mueller almost certainly obtained an email with an August 1, 2017 warrant that showed Michael Cohen had direct contact with the Kremlin during the campaign. The email also showed, Mueller would learn once Felix Sater and Cohen began to explain this to investigators, that Cohen and Trump were willing to do business with a former GRU officer and sanctioned banks in pursuit of an impossibly lucrative real estate deal in Moscow. The email obtained in August 2017 was proof that Trump was publicly lying about his ongoing pursuit of business in Russia. And for two more years, Trump kept that secret from the American public. That entire time, Russia knew he was lying to the American people. Russia knew, the American public did not.
Mueller got that email by asking Microsoft, not Trump Organization, for the email. But shortly after Mueller did so, Microsoft made it far harder to obtained enterprise emails without notifying Microsoft’s client. There are other questions about missing records — such as a letter Trump sent to then Deputy Prime Minister Sergei Prikhodko — that might have been answered with more records from Trump Organization.
There’s also the matter of the big infusion of money — more than $400,000 over the course of a few months — that Cohen got from a Columbus Nova, in investment fund controlled by Russian oligarch Viktor Vekselberg. Mueller investigated whether the money had some tie to the different Ukrainian peace deal that Felix Sater got Cohen to bring to the White House.
It didn’t. As Cohen explained to Mueller in 2018, he got the money to explain how Trump worked to Andrew Intrater, who claimed to be looking to spend money on an infrastructure project in the US.
The pitch was to assist in Columbus Nova’s infrastructure fund. [redacted] invests in several different areas. At the time, there were discussions of significant foreign investment interest dedicated to U.S. infrastructure.
[snip]
In Cohen’s discussions with [Intrater] Cohen did not provide any non-public information. Cohen was not selling non-public information. Cohen could assist [Intrater] because Cohen understood Trump and what Trump was looking for.
But the payment, while legal, remains dodgy as hell.
Republicans, certainly, don’t want to talk about it. When Mark Meadows accused Cohen of omitting his contracts with foreign companies at his 2019 testimony before the Oversight Committee, Trump’s future Chief of Staff made no mention of Columbus Nova.
Mr. MEADOWS. Mr. Cohen, I’m going to come back to the question I asked before, with regards to your false statement that you submitted to Congress. On here, it was very clear, that it asked for contracts with foreign entities over the last two years. Have you had any foreign contract with foreign entities, whether it’s Novartis or the Korean airline or Kazakhstan BTA Bank? Your testimony earlier said that you had contracts with them. In fact, you went into detail——
Mr. COHEN. I believe it talks about lobbying. I did no lobbying. On top of that they are not government——
Mr. MEADOWS. In your testimony — I’m not asking about lobbying, Mr. Cohen.
Mr. COHEN. They are not government agencies. They are privately and——
Mr. MEADOWS. Do you have—do you have foreign contracts——
Mr. COHEN [continuing]. publicly traded companies.
Nor did Republicans include Nova in the FARA referral they sent to DOJ.
But Viktor Vekselberg was among the oligarchs Treasury would sanction in in 2018, along with Deripaska and Alexandr Torshin, and he was among the first people hit with expanded sanctions last year, after the invasion.
A December 2018 article about those payments to Cohen and the sanctions against Vekselberg was likely the article that Vekselberg associate Vladimir Voronchenko was sharing in 2018, which was cited as proof he knew of the sanctions, in his indictment for maintaining Vekselberg’s US properties in his own name after Vekselberg was sanctioned. Today, the government started the process of seizing Vekselberg’s US properties.
Then there’s the matter of Julian Assange, whose extradition remains hung up at the final approval stage.
When Candace Owens confronted Trump about why he didn’t pardon Assange last year, he got really defensive, folding his arms. He explained, seemingly referring to Assange and probably referencing the Vault 7 and Vault 8 releases of stolen CIA hacking tools, “in one case, you have sort of a spy deal going on … there were some spying things, and there were some bad things released that really set us back and really hurt us with what they did.”
But Twitter DMs Mueller obtained with the first August 2017 warrant targeting Roger Stone showed that, in the wake of Mike Pompeo’s designation of WikiLeaks as a non-state intelligence service in the wake of that release, Stone and Assange discussed a pardon. On June 4, 2017, Stone said, “I don’t know of any crime you need to be pardoned for.” On June 10, Stone told Assange, “I am doing everything possible to address the issues at the highest level of government.”
Nine days later, on June 19, 2017, Trump ordered Corey Lewandowski to order Jeff Sessions to limit the investigation to prospective meddling from Russian, an order that — had Lewandowski obeyed — would have had the effect of shutting down the entire investigation, including that into Assange’s role in the hack-and-leak.
Texts obtained from Stone much later would show that he and Randy Credico discussed asylum for Assange on October 3, 2016 — before WikiLeaks started releasing the John Podesta emails.
Stone claimed to be pursuing a pardon for Assange at least through early 2018. It was only after Mueller asked Trump about such pardon discussions in September 2018 that Don Jr’s close friend Arthur Schwartz told Cassandra Fairbanks the pardon wouldn’t happen.
Those pardon discussions are just one of the things that Stone held over Trump’s head to ensure he’d never do prison time.
After the win, STONE tried a full court press in order to get a meeting with TRUMP. [redacted] eventually set up a meeting with TRUMP and STONE in early December 2016 on the 26th floor of Trump Tower. TRUMP didn’t want to take the meeting with STONE. TRUMP told BANNON to be in the meeting and that after 5 minutes, if the meeting hadn’t concluded, to throw STONE out. STONE came in with a book he wrote and possibly had a folder and notes. [full sentence redacted] TRUMP didn’t say much to STONE beyond “Thanks, thanks a lot.”. To BANNON, this reinforced STONE [redacted] After five to six minutes, the meeting was over and STONE was out. STONE was [redacted] due to the fact that during the meeting TRUMP just stared.
After Stone was convicted of lying to cover up the real nature of his contacts with Russia during the election, he lobbied for a pardon by claiming, repeatedly and publicly, that prosecutors offered him a deal if he would reveal the content of the phone conversations he had with Trump during the election.
On December 23, 2020, Stone got that pardon. Four days later, Stone and Trump spoke about January 6 at Mar-a-Lago. That same day, also at Mar-a-Lago, Kimberly Guilfoyle, started the planning for Trump to speak (at that point, the plan included a march to the Capitol).
Earlier this month, DOJ included Stone’s contacts with Proud Boy Dan Scott at a January 3 Florida rally in Scott’s statement of offense for attempting to obstruct the January 6 vote certification. It included Stone’s ties to various Oath Keepers as part of the proof DOJ used to prosecute Stewart Rhodes of sedition.
“The boss is aware”
It took an extra week for prosecutors in the Mike Flynn case to get approval for his sentencing memo in early 2020. So senior officials at DOJ had to have approved of the explanation of why Flynn’s lies about calling the Russian Ambassador to undermine Obama’s sanctions on Russia were serious. “Any effort to undermine the recently imposed sanctions, which were enacted to punish the Russian government for interfering in the 2016 election,” the memo explained, “could have been evidence of links or coordination between the Trump Campaign and Russia.”
From the time that Mueller’s team obtained KT McFarland’s transition device and email on August 25, 2017, they had reason to believe Flynn’s calls with the Russian Ambassador were a group affair, not (as Trump had claimed) simply Flynn’s doing. McFarland’s emails showed that before Flynn called Kislyak, he had received an email from Tom Bossert reporting on what Lisa Monaco told him about Russia’s response to the sanctions, immediately after which he spoke to McFarland from his hotel phone for 11 minutes.
Mueller came pretty close to concluding that was why Flynn intervened with the Russian Ambassador, too. “Some evidence suggests that the President knew about the existence and content of Flynn’s calls when they occurred,” the Mueller Report explained in laying out reasons why Trump might have wanted to fire Jim Comey. “[B]ut the evidence is inconclusive and could not be relied upon to establish the President’s knowledge.” That’s because, after first denying that such calls happened at all, KT McFarland ultimately claimed not to remember telling Trump about the calls and Steve Bannon claimed not to remember discussing it with Flynn.
That was the conclusion Mueller reached in early 2019, a conclusion that already didn’t account for the fact that Flynn called the Russian Ambassador from a hotel phone, not his cell, or that he admitted that he and McFarland had deliberately written a text to cover up the contact. But the following year, in his effort to protect Trump, Bill Barr and other Republicans made available multiple pieces of evidence that make Trump’s knowledge of Flynn’s contacts more clear.
For example, after the House Intelligence Committee transcripts came out in 2020, it became clear that the White House had used Steve Bannon’s two appearances, with the assistance of Devin Nunes, to script certain answers. One of those answers denied continuing to discuss how to end sanctions against Russia after the inauguration. That scripting process happened between the time Flynn pled guilty and the time Bannon first denied remembering knowing of the sanctions discussion. Effectively, the White House scripted Bannon to deny knowledge of those sanction discussions in December 2016.
Then, in September 2020, as part of his efforts to justify overturning the prosecution of Flynn, Barr released the interview report from FBI agent Bill Barnett, who reportedly sent pro Trump texts on his FBI issued phone. It described how, after refusing to take part in that part of the Flynn investigation four different times, he nevertheless, “decided to work at the SCO hoping his perspective would keep them from ‘group think.'” He described being told that “was the only person who believed MCFARLAND was not holding back the information about TRUMP’s knowledge of [the sanction discussions].” He then asked a series of questions that would provide space for a denial: “BARNETT asked questions such as ‘Do you know that as a fact or are you speculating?’ and ‘Did you pass information from TRUMP to FLYNN?'”
Importantly, Barnett claimed it was “astro projection” that Trump directed Flynn’s contacts with the Ambassador.
He said that even after John Ratcliffe declassified the evidence that Mueller could never have used in the investigation, but which proved it wasn’t projection at all: the transcripts of Flynn’s calls with then-Ambassador Kislyak. They reveal that in the call on December 31, 2016, which Kislyak made to tell Flynn that “our conversation was also taken into account in Moscow” when Putin decided not to retaliate against the US for its sanctions, Flynn told Kislyak that “the boss is aware” of a plan to speak the day after Trump would be inaugurated. That would only be possible had Flynn either told Trump directly or had McFarland passed it along.
Once Barr came in, Flynn attempted to unwind all the things he had said to Mueller, directly contradicting multiple sworn statements. Just weeks after DOJ noted the centrality of Flynn’s lies to the question of whether Trump attempted to reverse sanctions just after Russia helped get him elected, Barr, too, joined the process of attempting to reverse the impact of the things Flynn had admitted to under oath. That effort extended to introducing notes with added, incorrect dates that Trump used in an effort to blame Biden for the investigation into Flynn. “We caught you,” Trump claimed to Biden in a prepared debate attack about the investigation that showed how his team first contacted Obama’s team to learn what they knew of the Russian response to sanctions, minutes before they called Russia to undermine those sanctions.
On November 25, Trump pardoned Flynn not just for his lies about the calls to the Russian Ambassador and working for Türkiye, but for any lies he told during the period he was reneging on his plea agreement. That same week, Flynn and Sidney Powell were in South Carolina together plotting ways to undermine Joe Biden’s election. Three weeks later, they would pitch Trump on a plan to seize the voting machines so he could stay in office.
When Bill Barr wrote his corrupt memo claiming there was no evidence that Trump obstructed the Mueller investigation, he was silent about the topic he had admitted, three times, would amount to obstruction: those pardon dangles. Those pardons aren’t just proof that Trump obstructed the investigation, stripping prosecutors of the leverage they might use to get Paul Manafort, Roger Stone, and Mike Flynn to tell the truth. But they’re also some of the most compelling proof that the secrets Stone and Manafort kept would have confirmed the suspicions that Trump coordinated with Russia in an attack on US democracy.
Update, 3/14: Corrected that Mueller closed up shop four years ago, not three. Time flies!
Just days earlier, on July 28, 2017, DOJ had already established probable cause to arrest George Papadopoulos for false statements and obstructing the investigation. His FBI interviews in the days after August 2 would go to the core questions of the campaign’s knowledge and encouragement of Russia’s interference. On August 11, Papadopoulos described, but then backed off certainty about, a memory of Sam Clovis getting upset when Papadopoulos told Clovis “they,” the Russians, have Hillary’s emails. On August 19, Papadopoulos professed to be unable to explain what his own notes planning a September 2016 meeting in London with the “Office of Putin” meant.
The investigation into Paul Manafort, too, was only beginning to take steps that would reveal suspect ties to Russia. Also on July 28, for example, DOJ obtained the first known warrant including conspiracy among the charges under investigation, and the first known warrant listing the June 9 meeting within the scope of the investigation. On August 17, DOJ would show probable cause to obtain emails from Manafort’s business involving Manafort, Gates, and Konstantin Kilimnik that would (among other things) show damning messages sent between Manafort and Kilimnik using the foldering technique, likely including Manafort’s sustained involvement in a plan to carve up Ukraine that started on August 2, 2016 (which Gerth omits from his description of that meeting).
Similarly, Mueller was still collecting evidence explaining why Flynn might have lied about his calls with Sergey Kislyak. On August 25, Mueller obtained a probable cause warrant to access devices owned by the GSA showing that Flynn had coordinated his calls with other transition officials, including those with Trump at Mar-a-Lago, when he called Kislyak to undermine Obama’s sanctions against Russia.
Plus, Mueller was just beginning to investigate at least two Trump associates that Rosenstein would include in an expanded scope in October 2017. On July 18, Mueller would obtain a probable cause warrant that built off Suspicious Activity Reports submitted to Treasury. That first known warrant targeting Michael Cohen never mentioned the long-debunked allegations about Cohen in the Steele dossier. Instead, the warrant affidavit would cite five deposits in the first five months of 2017 from Viktor Vekselberg’s Renova Group, totaling over $400K, $300K in payments from Korean Aerospace Industries, and almost $200K from Novartis, all of which conflicted with Cohen’s claim that the bank account in question would focus on domestic clients. On August 1, Mueller would obtain a probable cause warrant for Cohen’s Trump Organization emails from Microsoft. Mueller did so using a loophole that Microsoft would sue to close shortly afterwards, a move which likely stymied the investigation into a suspected $10 million donation to Trump, via an Egyptian bank, that kept him in the race in September 2016. That warrant for Trump Organization emails likely obtained Cohen’s January 2016 contact with the Kremlin – the one not turned over, to Congress at least, in response to a subpoena – a contact that Cohen would lie to Congress about four week later.
On August 7, Mueller used a probable cause warrant to obtain Roger Stone’s Twitter content, which revealed a mid-October 2016 exchange with WikiLeaks that disproved the rat-fucker’s public claims that he had never communicated with WikiLeaks during the campaign (a fact that Gerth gets wrong in the less than 1% of his series he dedicates to Stone). It also revealed that the day after the election, WikiLeaks assured Stone via DM that “we are now more free to communicate.” Those communications would, in one week (the subsequent investigation showed), turn into pardon discussions, which provides important background to the June 2017 Twitter DMs Stone had with Julian Assange, obtained with that August warrant, about “doing everything possible to address [Assange’s] issues at the highest level of Government.”
https://www.emptywheel.net/wp-content/uploads/2023/02/Screen-Shot-2023-02-24-at-12.29.40-PM.png13941084emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2023-02-24 13:19:532023-03-15 11:31:17“Wink:” Where Jeff Gerth’s “No There, There” in the Russian Investigation Went
DOJ rolled out another sanctions-related action targeting those who allegedly managed sanctioned Russian oligarchs’ real estate the other day. It charged Vladimir Voronchenko with making payments to maintain four properties, amounting to $75 million in value, owned by Viktor Vekselsberg. The properties include a big home in Southhampton, a condo on Park Avenue, a Penthouse on Miami’s Fisher Island, and a smaller apartment just around the corner from the Penthouse.
The story told in the indictment is simple. Between 2008 and 2017, Vekselberg purchased the properties via some shell companies. Voronchenko managed the properties through an IOLTA account funded by Vekselberg. Then, after Vekselberg was first sanctioned in April 2018, Voronchenko started making the payments into the IOLTA fund himself. Both those payments, and attempts to sell the Southampton House in 2020 and the Park Avenue condo in 2021, required an OFAC license, the indictment alleges.
Two days after DOJ subpoenaed Voronchenko on May 13, 2022, he fled, first to Dubai and, from there, to Russia.
I’m interested in how and whom the indictment charges, as compared to two earlier actions against Russian oligarchs. The indictment against Oleg Deripaska, his girlfriend, and two women who managed his US-based properties charges only conspiracy to violate IEEPA (plus some obstruction-related charges). The EDNY indictment against Andrii Derkach charges conspiracy to violate IEEPA and conspiracy to commit money laundering, as well as bank fraud and some other financial crimes. Both of those were charged last September (though Derkach’s indictment wasn’t unsealed until they took action to secure the LA properties they’re attempting to seize).
Like those earlier indictments, this one also charges a conspiracy to violate IEEPA. Like the Derkach indictment, it also charges conspiracy to commit money laundering. But it also charges Voronchenko with those crimes individually, violation of IEEPA and money laundering, along with contempt for fleeing after receiving the subpoena.
I’m interested in the timing — the charges against Deripaska (which was actually a superseding indictment) and Derkach were September. For some reason, DOJ waited to charge this one (perhaps they were waiting to see if Voronchenko would return to the scene of his alleged crime).
More curiously, they charge Vorochenko alone.
Admittedly, that’s how DOJ initially charged Derkach, too. They superseded the indictment in January to include his spouse, Oksana Terkhova.
Which is why I’m interested in some other people described in his indictment.
Obviously, there’s Vekselberg himself, who unlike Deripaska and Derkach, was not charged for dodging sanctions to sustain his properties.
There are three Voronchenko family members, each treated a bit differently. Family member-1 applied, with Voronchenko, for membership in the club at Fisher Island.
Family member-2 lived in Russia, where he or she was helping to transfer funds for the upkeep of the properties.
A third family member, Family member-3, was involved in efforts to sell the Park Avenue property starting in December 2021.
A different Vorochenko relative in Russia, described as Individual-2, controlled a bank account in Russia from which the IOLTA was funded after Vekselberg was sanctioned. As described, Individual-2 seems to have more legal liability than Vorochenko’s other family members (because he or she would have been involved in any alleged money laundering).
The fact that Individual-2, who would seem to be implicated in money laundering, is described differently than the other family members is of interest because there is an Individual-1. As described, that person is only in the indictment to substantiate that Voronchenko was aware of the sanctions against Vekselberg.
[O]n or about May 9, 2018, approximately one month after Vekselberg’s designation, VORONCHENKO sent a WhatsApp message to an associate (“Individual-1”) with a link to the website of a law firm in Washington, D.C. that specialized only in OFAC sanctions. On or about December 8, 2018, VORONCHENKO sent a WhatsApp message to Individual-1 containing a link to an article that discussed Vekselberg’s designation as an SDN.
It’s not criminal at all for Individual-1 to receive texts about sanctions against Vekselberg. This person may only be in the indictment, described as such, for that substantiation of Voronchenko’s knowledge of the sanctions.
But I’m interested in that second WhatsApp text.
The day before Voronchenko sent the text, Bloomberg published a long story about Vekselberg. It’s not exclusively about sanctions.
Rather, it’s the story about how Vekselberg’s effort to cultivate Michael Cohen — his payment of vast sums starting in 2017 to, basically, do nothing — ultimately led to his questioning by Mueller and then, a month later, his sanctioning.
Not long after Michael Cohen stopped pursuing a Trump-branded property project in Moscow, another Russian connection to the future U.S. president’s entourage started to form.
Like the real estate plan, it didn’t end well—particularly for Russian tycoon Viktor Vekselberg. His effort to engage in statecraft at the highest level unraveled spectacularly, costing him billions, cleaving his family and severing the extensive ties to the U.S. elite that turned him into what one Moscow newspaper called the “most American” of Vladimir Putin’s plutocrats.
This saga, much of it previously unreported, began with a chance encounter between Cohen, Trump’s now-disgraced former lawyer, and Vekselberg’s American cousin, Andrew Intrater, in the fall of 2016. Soon, Trump would be in the White House and Vekselberg would be privately boasting of having the pull needed to help achieve the sanctions relief the Kremlin was craving, people familiar with the matter said. Instead, he became the richest victim of the most dangerous standoff between the U.S. and Russia since the Cold War.
[snip]
Through much of 2017, as the nascent Trump administration navigated controversies of its own making, Vekselberg was giving Russian officials and fellow businessmen vague yet certain assurances about his influence in the White House, according to six people who interacted with him at the time. He’d attended Trump’s swearing-in ceremony in Washington as a guest of Intrater, who’d donated $250,000 to the inaugural committee, and come back with a newfound sense of clout, they said.
As the story describes, Mueller was quite interested in whether Intrater was serving as a front for donations from Vekselberg.
In March, during one of his last trips to the U.S., he was stopped and questioned by Mueller’s team at an airport in the New York area. They asked about his ties to Cohen, who faces sentencing on Dec. 12 for confessed crimes that include violating campaign-finance rules. Investigators also asked why he attended Trump’s inauguration and if Intrater’s $250,000 gift was actually his money.
[snip]
Mueller’s interest in Intrater, who’s been questioned twice, is telling. One area his team is known to be exploring is whether wealthy Russians funneled cash into Trump’s campaign or inauguration through U.S. citizens to bypass rules barring foreign donations. Federal Elections Commission data show Intrater had never made a political donation of more than $2,600 prior to Trump.
I was reviewing all this just the other day (I link the affidavit showing how the payments from Renova to Cohen led to the investigation against him in my last post on Jeff Gerth, which I’ll post later today or tomorrow). Remarkably, Mueller never did anything with the Vekselberg’s outreach to Cohen. Neither Vekselberg nor Andrew Intrater show up in the Mueller Report.
Of course, the question of whether Intrater is laundering donations for Vekselberg has become urgently important again. As the WaPo and NYT have both covered, Intrater claims he was duped by Santos to invest in the Ponzi scheme for which he was working.
A month after the Securities and Exchange Commission filed a lawsuit in 2021 accusing a Florida-based company of operating a Ponzi scheme, one of the firm’s account managers assured an anxious client that his money was safe.
The client, a wealthy investor named Andrew Intrater, had been lured by annual returns of 16 percent and had invested $625,000 in a fund offered by the company, Harbor City Capital — in part because he trusted and admired the account manager, an aspiring politician named George Santos.
Admiration aside, Mr. Intrater wanted to know about his investment and a promised letter of credit that secured it. Mr. Santos said that it was already on the way.
“All issued and sent over,” Mr. Santos assured him in a text message sent in May 2021.
The letter of credit did not exist, the S.E.C. would later tell a court. The $100 million that Mr. Santos told Mr. Intrater that he had personally raised for Harbor City did not exist either, the commission said. Nor, seemingly, did the close to $4 million that Mr. Santos claimed he and his family had invested in Harbor City.
Mr. Santos’s representations form the basis of a sworn declaration that Mr. Intrater gave the S.E.C. in May 2022, as part of its Harbor City investigation. Mr. Intrater’s interactions with the S.E.C. are the first indication the commission might be interested in Mr. Santos.
Mr. Intrater told the S.E.C. that the representations influenced his decision to invest in Mr. Santos’s business and political endeavors — an allegation that could leave Mr. Santos vulnerable to criminal charges.
Intrater’s claim to have been duped makes it all the more curious that he donated heavily to Santos, including after he was purportedly duped.
Santos received contributions in multiple installments from Intrater between 2020 and 2022. The financier made two donations to Santos’ joint fundraising committees in 2022; $12,200 to the Devolder Santos Nassau Victory Committee and $10,800 to the DeVolder Santos Victory Committee. These, along with additional donations from Intrater, were bucketed into Santos’ leadership PAC, Gads PAC, which received a total of $12,100 between 2021 and 2022, the Nassau County Republican Committee received $10,000 in 2022, and to Santos’ campaign directly, who received a total of $12,200 in four installments between 2020 and 2022.
So I’m sure DOJ has an acute, renewed interest in the propriety of Intrater’s political donations.
Vorochenko got indicted, in a conspiracy, all by himself.
But he was speaking to someone about matters covered by the conspiracy that quickly lead into far more suspicious matters.
Update: I’m down so many different rabbit holes I forgot to link the Vekselberg action charged last month against the guys maintaining Vekselberg’s yacht in Mallorca. It describes the front companies Vekselberg used for the yacht, which may be the same shown above in the graphic.
As I noted there, one interesting aspect of the charge was venue: DC instead of one of the places where foreigners would be flown into (like EDNY, for JFK, or EDVA, for any of the VA airports), which is how venue is often assigned. The venue is all the weirder now that we see this indictment charged in SDNY. The SDNY press release thanks the FBI, but doesn’t say whether this case was (like the yacht charges) investigated by MN FBI agents.
Update, February 23: SDNY is now moving to seize the properties.
https://www.emptywheel.net/wp-content/uploads/2023/02/Screen-Shot-2023-02-09-at-11.42.53-AM.png8041386emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2023-02-09 09:52:392023-02-24 17:36:30On emptywheel’s Continued Obsession with Oligarch Real Estate Seizures
Even before the Igor Danchenko trial, Billy Barr declared victory in defeat — arguing that if John Durham could just “fill in a lot of the blanks as to what was really happening,” the inevitable acquittal would still give Durham an opportunity to spin fairy tales about what Durham imagines happened.
“What these cases show is that these are difficult cases to win,” Barr said. “There’s a reason it takes so long, and you have to build up the evidence because at the end of the day, you’re going before these juries that aren’t going to be disposed to side with the people they view as supporting Trump.”
Danchenko is slated to go on trial next month on charges of lying to the FBI about the Steele dossier, for which he was the main source. The dossier claimed that Trump and members of his campaign and company had established extensive ties to the Russian government and had colluded during the 2016 election.
The trial is widely expected to be the final criminal prosecution from Durham’s investigation before he submits a report of his findings to Attorney General Merrick Garland.
But despite Durham’s limited success in the courtroom, Barr defended the investigation he ordered, saying the courtroom was allowing Durham to establish a record of what had occurred with the so-called Russiagate investigation.
“I think Durham got out a lot of important facts that fill in a lot of the blanks as to what was really happening,” Barr said. “My expectation is … the Danchenko trial will also allow for a lot of this story to be told, whether or not he’s ultimately convicted. I hope he’s convicted, but if he isn’t, I still think it provides an avenue to tell the story of what happened.”
Like an obedient puppy, Durham did use the trial as an opportunity to get extraneous details into the public record. On top of the $1 million dollar offer that Brian Auten said, vaguely, Christopher Steele might have gotten if he had corroborated the dosser — which has been treated like an FBI attempt to bribe a source for dirt on Trump and as the most exonerating possible detail, rather than an effort to investigate a real threat to the country — Durham went out of his way to give the full names of people at various meetings so Carter Page and Donald Trump can add them to lawsuits.
Mind you, along the way, the trial also revealed the FBI’s own assessment of Danchenko’s cooperation, which contributed to 25 investigations and which Barr burned to a crisp by exposing him, with Lindsey Graham’s help, as a source in 2020.
Q. And you were concerned, in July of 2020, when you became aware that Attorney General Barr was going to release a redacted version of Mr. Danchenko’s interview in January of 2017?
A. Yes.
Q. You were upset about that?
A. I was.
Q. You found out about that during a telephone conference, right?
A. I did.
Q. And you disagreed with that decision?
A. I did.
Q. The OIG had already completed a report on that investigation, correct?
A. Yes.
Q. And you thought that the release of that document was dangerous?
A. Yes.
Q. You even wrote up a memo of that phone call you were on in July of 2020 where you learned that they were going to publish a redacted version of his interview, correct?
A. I did.
[snip]
Q. And within an hour of Mr. Danchenko’s January interview being released to the senate judiciary committee, the senate judiciary committee, I won’t say who, released it to the public?
A. They did.
[snip]
Q. So, Agent Helson, you wrote in October of 2020 that from 2017 until present day, Mr. Danchenko had provided information on at least 25 FBI investigations assigned to at least six field offices?
A. Correct.
Q. In addition, he aided the United States Government by introducing the United States Government to a sub-source who had provided additional information separate to his report, correct?
A. Correct.
[snip]
Q. And it’s noted that he — his reporting contributed to at least 25 active FBI investigations.
[snip]
Q. In July of 2020 his identity became public after the release of the redacted version of his interview in January of 2017. Since that public disclosure, he has received threatening messages via social media and email. It’s resulted in significant damage to his reputation from false and baseless claims aimed to undermine his credibility. Those are your words, correct?
A. Correct.
Q. The Washington Field Office had assessed that this will have negative ramifications with respect to his ability to provide for his family via personal income for the foreseeable future, correct?
A. Correct.
Q. And while the FBI cannot promise complete anonymity to anyone who provides information, his identity became public only after the decision was made to release the redacted version of his interview, correct?
A. Correct.
Q. As a result of that act, his ability to continue to provide information viable to the FBI is diminished as is his ability to provide financial support to his family.
After the trial, Barr has been spending time on Fox News declaring — as much of the frothy right has — that this record, of how he deliberately harmed national security for revenge, exposed the corruption of what Barr calls “Russiagate,” the moniker frothers use to distract from the real substance of the Russian investigation.
I was disappointed, obviously. I think they did a good job prosecuting the case. Their ability to put evidence on, in a very difficult case, was limited by some rulings, and they weren’t able to get access to some witnesses overseas. So it was a tough — it was a tough case, so this should show people that it’s hard to win these cases, and sometimes it takes time to … to achieve justice. But as people say — I think Andy McCarthy said — the real public interest being served here was exposing the full extent of the corruption that was involved in Russiagate [sic] and the abuse by the FBI in that whole episode. And I think Durham is going to get a report out that’s gonna lay out all the facts.
Barr and everyone else are pointing to the exposures they and Durham made to justify their actions because they didn’t have evidence to support their claims.
Barr is whining that getting false statements convictions is hard. But Robert Mueller was able to prove that:
Alex Van der Zwaan lied to cover up his efforts, in conjunction with Konstantin Kilimnik and Rick Gates, to cover up Manafort’s effort to spin Ukraine’s politicized Yulia Tymoshenko prosecution during the 2016 election
George Papadopoulos lied to cover up his advance knowledge of the Russian effort to help Trump
Mike Flynn lied to cover up his back channel calls with Sergei Kislyak to undermine Obama Administration policy (and also that he was a paid agent of Turkey during the campaign)
Paul Manafort conspired to cover up a front organization he set up with Konstantin Kilimnik and (at a preponderance of the evidence standard) lied to cover up his August 2016 meeting with Kilimnik
I mean, Robert Mueller had no problem getting convictions, whether from guilty pleas, jury verdicts, or (in the case of Manafort’s lies about the August 2, 2016 meeting) a judge’s ruling.
One reason he had no problem was that these defendants were generally guilty of a lot more than just lying. It’s a lot easier to get Flynn to admit he lied about his back channel discussions with the Russian Ambassador, after all, when he was also on the hook for secretly being an agent of Turkey. It’s lot easier to get Papadopoulos to admit he lied about his advance warning of the Russian operation when he’s trying to stave off foreign agent charges tied to Israel. It’s a lot easier to get a jury verdict against Stone when he spent months plotting out his lies with multiple people on emails.
Mueller wasn’t able to get false statement verdicts from everyone, mind you. For example, because Steve Bannon and Erik Prince deleted their texts from early January 2017, Mueller did not charge them for false statements made to cover up meetings to set up a back channel with UAE and Russia. That’s one lesson that Durham should have taken to heart: Absent the mobile app records from Sergei Millian and Igor Danchenko, he had no way of knowing whether Millian called Danchenko on July 26, 2016.
That’s not the only evidentiary complaint Barr makes here. He’s complaining that Durham was unable to get hearsay admitted against Danchenko. He’s angry that Durham was not permitted to introduce Millian’s wild Twitter boasts as evidence without requiring Millian to show up and make those claims under oath. And he’s complaining that Durham wasn’t able to introduce his pee tape conspiracies without charging it.
But the most alarming of the former Attorney General’s statements — before and after the trial — embrace the notion that it is a proper goal of failed prosecutions to expose information that does not rise to the level of criminality.
As I’ll show in a follow-up, the Durham fiasco is part of a piece of Barr’s larger actions, both his other failed prosecutions — most notably, that of Greg Craig — but also his efforts to undo the convictions for which there was no reasonable doubt of guilt.
It’s not enough to talk about Durham’s unprecedented failure … it’s not enough to note that Durham and his prosecutors repeatedly failed to take basic investigative steps before embracing and charging conspiracy theories that juries didn’t buy … it’s not enough to note how, in an attempt to prove those conspiracy theories, Durham and his prosecutors and abused the prosecutorial system.
Durham’s entire project is a continuation of Barr’s unprecedented politicization of DOJ, one that not only places Republicans attempting to secretly work for hostile nations above the law, but that has made the country far less safe in many other ways.
It’s not just Durham prosecuted two men without any real hope of winning conviction, all to expose things that aren’t crimes. It’s that Billy Barr hired him to do just that.
https://www.emptywheel.net/wp-content/uploads/2020/07/Screen-Shot-2020-07-28-at-4.35.21-PM.png11782014emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2022-10-21 11:38:502022-10-21 16:25:46Bill Barr Complains that His Special Counsel Was Unable to Match Robert Mueller’s Record of Success
Last night, Trump and DOJ submitted their competing plans for a Special Master to Judge Aileen Cannon. As I laid out, Trump’s plan is a transparent effort to stall the entire investigation for at least three months, and after that to bottle up documents he stole — those with classified markings and those without — at NARA, where he’ll launch new legal fights in DC to prevent further access.
Judge Cannon has ordered Trump to weigh in on the government’s motion for a partial stay of her order, asking her to permit the investigative team access to any documents marked as classified, by 10AM on Monday. Trump will object for the same insane logic he gave in his Special Master proposal: That if he can get a private citizen Special Master to override the government’s classification determination, then he can declare the documents — even Agency documents that would be government, not Presidential Records — part of his own records at NARA.
Because Trump didn’t share his choices until after close of business day on Friday, both sides also have to inform her what they think of the other’s Special Master suggestions — Barbara Jones (who was Special Master for the review of both Rudy Giuliani’s and Michael Cohen’s devices) and retired George W. Bush appellate judge Thomas Griffith for the government, and retired EDNY and FISC judge Raymond Dearie and GOP partisan lawyer Paul Huck Jr for Trump — on Monday.
Then, if Cannon has not relented on the investigative side for documents marked as classified by Thursday, DOJ will ask for a stay of that part of her decision from the 11th Circuit, pending the rest of their appeal (the scope of which remains unknown and may depend on her other decisions this week).
Cannon’s decision on whether to permit investigators to access the documents marked as classified may provide the government leverage over the Special Master choice, which could create new bases for appeal. None of the choices for Special Master are known to be cleared, much less at the TS/SCI levels that would be needed to review the documents Trump stole, though Dearie, who was on FISC as recently as 2019, surely would be easily cleared as such.
That doesn’t matter for the government’s preferred approach. The Special Master won’t get any known classified document under their approach.
They would, however, under Trump’s approach (which more closely matches Cannon’s current order). And so DOJ will have to agree to give clearance to whatever person ends up as Special Master under the Trump plan.
The same Supreme Court precedent that undergirds all these arguments about classification authority, Navy v. Egan, is specifically a ruling about the Executive’s authority to grant or deny clearances. The government could deny any of the proposed Special Masters clearance — and might well do so, to deny Huck access. Likewise, the government might well deny Trump’s lawyers (at least Evan Corcoran, who is likely either a witness or subject of the obstruction side of the investigation) clearance for such a review as well.
So if Cannon doesn’t grant the government’s motion for a stay, then she effectively gives the government several more levers over her control of the Special Master process.
She probably doesn’t give a damn.
There are two other developments we might expect this week, though.
First, last Wednesday, DOJ asked and Chief Judge Beryl Howell granted permission to unseal the parts of the search warrant affidavit mentioning the same two grand jury subpoenas that she unsealed for mention in DOJ’s response to Trump’s Special Master motion. (I’m looking for the person I owe a hat-tip to this for.) Since receiving that permission, DOJ has not yet gone back to Magistrate Judge Bruce Reinhart to request further unsealing of the affidavit; there’s not even the tell-tale sealed filings in the docket that ended up being prior such requests.
If and when DOJ does ask for further unsealing, it might reveal more information about Trump’s actions — and, importantly for the question of who can be cleared for the Special Master review, Evan Corcoran’s. There are several entirely redacted paragraphs that likely tell what happened in response to the May 11 subpoena. There’s also a likely detailed discussion of the probable cause that Trump — and others — obstructed the investigation, some of which could be unsealed with mention of the surveillance video.
The government response before Cannon didn’t address the evidence of obstruction (or the June 24 subpoena) in much detail. Simply unsealing references of that subpoena in the affidavit might provide more damning information about Trump’s efforts to hide classified documents from DOJ.
More importantly, on Tuesday, the House returns from August recess. It’ll be the first time since the search that both houses of Congress are in town. And in their Motion for a Stay, the government noted (and Judge Cannon did not object) that it did not understand Cannon’s order to prohibit a briefing to “Congressional leaders with intelligence oversight responsibilities.”
5 The government also does not understand the Court’s Order to bar DOJ, FBI, and ODNI from briefing Congressional leaders with intelligence oversight responsibilities regarding the classified records that were recovered. The government similarly does not understand the Order to restrict senior DOJ and FBI officials, who have supervisory responsibilities regarding the criminal investigation, from reviewing those records in preparation for such a briefing.
This seems to telegraph that DOJ plans to brief the Gang of Eight — which includes Nancy Pelosi, Adam Schiff, Kevin McCarthy, Mike Turner, Chuck Schumer, Mark Warner, Mitch McConnell, and Marco Rubio — about what documents Trump stole, possibly this week. Turner and to a lesser degree Rubio have been demanding such a briefing.
And at a minimum, after such a briefing you’d see everyone run to the press and express their opinions about the gravity of Trump’s actions. Because neither DOJ nor Aileen Cannon can prevent these members of Congress from sharing details about these briefings (especially if they’re not classified), you should be unsurprised everyone to provide details of what Trump stole.
That might devolve into a matter of partisan bickering. But two things might moderate such bickering. First, Marco Rubio is on the ballot in November, and Val Demings has already criticized his knee-jerk defense of Trump.
Just as importantly, Mitch McConnell, who badly would like to prevent Democrats from expanding their majority in the Senate and just as badly would like the MAGA Republicans to go away, really doesn’t want to spend the next two months dodging questions about Trump’s crimes.
If not for Trump’s demand for a Special Master, DOJ likely would have put its head down and mentioned nothing of this investigation until after the election. But by demanding one — and by making such unreasonable requests — Trump has ensured that the investigation into his suspected violations of the Espionage Act and obstruction will dominate the news for at least a few more weeks.
Even if DOJ doesn’t brief the Gang of Eight, even if that doesn’t lead to damning new details and recriminations from being made public, the public nature of the Special Master fight will suck all the oxygen out of the next few weeks of campaign season, at least, just as it contributed to Joe Biden enjoying one of the most positive mid-term Augusts for any President in the last half-century.
But if new specifics about Trump’s negligence and efforts to obstruct the investigation are made public, then November’s election will be precisely what Republicans are trying to avoid it being: not just a response to the Dobbs ruling overturning protection for abortion access, but a referendum on the way Republicans have sacrificed American security in their fealty to Donald Trump.
https://www.emptywheel.net/wp-content/uploads/2020/10/COVID-Don.png369304emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2022-09-10 11:30:292022-09-10 17:52:35DOJ Has at Least One Card Left to Play: Congress’ Instinct for Self-Preservation
This is a minor point, but one that deserves more attention. Plus, I plan to use it in future posts about the unlawful assault on property rights that Judge Aileen Cannon has mounted in her opinion appointing a Special Master to stall the investigation into Donald Trump’s suspected theft of classified documents.
In a footnote of her opinion, Judge Cannon pointed to the Special Master appointed in the Project Veritas case as a precedent of a judge (Analisa Torres, in this case), appointing a Special Master “in politicized circumstances.”
Moreover, at least one other court has authorized additional independent review for attorney-client privilege outside of the law firm context, in politicized circumstances. See In re Search Warrant dated November 5, 2021, No. 21-Misc-813, 2021 WL 5845146, at *1 (S.D.N.Y. Dec. 8, 2021) (appointing a special master to conduct review of materials seized from the homes of employees of Project Veritas for potentially attorney-client privileged materials).
To be fair, I kept waiting for Trump’s lawyers to raise this precedent (though not for the principle Cannon did).
But they didn’t.
Not in the original complaint (in which they relied heavily on the Lynne Stewart and Michael Cohen precedent). Not in their supplement (in which they added the Rudy precedent to those they relied on). Similarly, it didn’t come up in the hearing (in which Rudy featured prominently).
This was Judge Cannon going out of her way to find what she believed was a precedent on her own, one that she said supported an, “independent review for attorney-client privilege outside of the law firm context, in politicized circumstances.” But the opinion isn’t about attorney-client privilege. It was, explicitly, about press privileges.
In light of the potential First Amendment concerns that may be implicated by the review of the materials seized from Petitioners, the Court finds that the appointment of a special master will “help[] to protect the public’s confidence in the administration of justice.”
The opinion further holds there is no basis of law to do what Cannon did–intervene because of leaks (more on the leaks Cannon made up later).
Project Veritas and O’Keefe request that the Court order the Government to conduct a search for alleged leaks related to the Government’s investigation. O’Keefe Mot. II at 1. Petitioners do not provide a legal basis for their request or allege that the Government violated any specific rule, law, or policy
Crazier still, there’s no mention in the opinion, at all, about politics.
Nor should there be. This is a case about theft. We know it’s about theft because the two people who’ve already pled guilty in the case acknowledged it in real time (and pled guilty to transporting stolen goods across state lines).
They are in a sketchy business and here they are taking what’s literally a stolen diary and info . . . and trying to make a story that will ruin [the Victim’s] life and try and effect the election. [The Victim] can easily be thinking all her stuff is there and not concerned about it. . . we have to tread even more carefully and that stuff needs to be gone through by us and if anything worthwhile it needs to be turned over and MUST be out of that house.
We know, too, that it’s not just about a stolen diary. In addition to the diary (which by the way included Ms. Biden’s extensive accounts of her own addiction treatment, the most personal kind of medical record), the thieves stole,
tax records, a digital camera, a digital storage card containing private family photographs, a cellphone, books, clothing, and luggage.
Aileen Cannon believes that the investigation of this theft — the culprits have admitted it!! — is politicized.
Presumably Aileen Cannon believes an investigation into stolen property must be about politics because she believes James O’Keefe’s claim that this was an investigation started under Joe Biden. Had she done as much work to fact-check O’Keefe as she did to find precedents for Trump, though, she would know that this investigation was not started under Joe Biden.
It was started under Donald Trump.
The first call records in this investigation were obtained in November 2020, while Bill Barr was Attorney General (under Merrick Garland, such a step might have required the AG’s approval, but Barr was less interested in such protections). The first warrant targeting people purporting to play the role of journalists was obtained on January 14, 2021. That one, I imagine, did require Main DOJ approval, hopefully even from then-Acting Attorney General Jeffrey Rosen.
Aileen Cannon argues that the investigation started under Bill Barr and Jeffrey Rosen into the theft — this is not contested! — of things including medical and tax records is politicized, mostly because the victim is the current President’s daughter.
Effectively, then, Judge Cannon is arguing that private citizen Ashley Biden can have no recourse for when someone literally steals her medical and tax records, but Trump must have special judicial interference to prevent the FBI taking medical and tax records in the process of investigating 11,000 stolen records.
https://www.emptywheel.net/wp-content/uploads/2021/11/Screen-Shot-2021-11-24-at-2.06.52-PM.png516604emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2022-09-05 16:42:142022-09-05 19:40:52Aileen Cannon Calls an Investigation into “What’s Literally a Stolen Diary” … “Politicized”
