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Leaks on Top of Leaks Related to Roger Stone

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In February, when I wrote up the latest performance art from serial hoaxsters Jacob Wohl and Jack Burkman, I suggested that their failure to hide the hand-written notes on one of the juror questionnaires they leaked from the Roger Stone jury might lead to quick discovery of the culprit.

But the poor execution may be the downfall. The released documents don’t actually reveal anything beyond what had already been identified during the initial frenzy against he foreperson (and since the foreperson gave credible responses in the hearing, backed by the testimony of two other jurors who said she was one of the last jurors to vote to convict). But Wohl and Burkman failed to redact the handwritten notes about a potential juror on one of the questionnaires.

This is going to make it easier to identify the potential sources for this document, something that ABJ was already trying to do in the hearing earlier this week.

There is a concerted effort on the part of the frothy right to violate every single norm of jury service, all to discredit a slam-dunk case against Roger Stone that even Bill Barr said was righteous. And for once these shithole hoaxsters may have done some good — in the form of helping the FBI figure out who’s behind it all.

Apparently, I was wrong.

Seven months later, as Will Sommer reported, the FBI continues to investigate Wohl and Burkman for potential witness intimidation.

The FBI is investigating blundering conservative operatives Jacob Wohl and Jack Burkman for a series of possible crimes, according to a document filed by federal prosecutors.

Ironically, the document revealing the investigation was filed just days after Wohl and Burkman staged a fake FBI raid on Burkman’s home in a bid for media attention.

The FBI investigation centers on Wohl and Burkman’s February release of confidential juror questionnaires from the trial of Trump associate Roger Stone. The FBI is investigating the pair for potential witness harassment, criminal contempt, and obstruction of justice, according to the filing.

[snip]

The HD Carrier subpoena relates to a series of phone numbers that Burkman contacted prior to the publication of the questionnaires, according to the filing. HD Carrier provides phone numbers for teleconferencing companies and other businesses that use temporary phone numbers, suggesting that the phone numbers were used only briefly by whoever Burkman was in contact with. The court filing notes that Burkman contacted the phone numbers around the time of the questionnaire release, according to a law enforcement review of his call records.

There are a number of interesting things about the request for call records, but not content.

First, as Sommer noted, this is a DC District order, but it was signed by the US Attorney and two AUSAs from Philadelphia. That’s not that surprising. The Stone prosecutors got the list of jurors that was part of this leak and passed it onto Stone’s team. They are potential (if highly unlikely) culprits for the leak. By asking outsiders to investigate it, DOJ avoids a conflict. This may be (though I always get proven wrong when I say this) the rare example where Bill Barr has appointed one of his favored US Attorneys to investigate something pertaining to Trump that doesn’t reek of interference.

It’s almost certain Wohl and Burkman are not the primary targets. The application notes that they, “may have been engaged in an attempt to influence or injure the jurors, as well as tampering with potential witnesses before the court,” which covers two of the three crimes under investigation, obstruction and witness tampering. And they did do that.

But the third, criminal contempt, probably wouldn’t apply to them. How could Amy Berman Jackson hold them in contempt, after all, when they were not party to her authority?

Another detail that supports that is the time frame — from last year during the pre-trial period. As explained in a hearing exchange after Wohl and Burkman had released the questionnaires, Jonathan Kravis went and got the list from the court on October 31 and sent it to the Stone team sometime thereafter.

In the hearing, Stone’s lawyer Seth Ginsberg tried to suggest that Stone’s team might not have had the list until closer to September 5, to which Michael Marando responded it was likely that it got sent out on November 1, which was a Friday.

THE COURT: Okay. Do you have any questions for this witness about any of these issues?

MR. GINSBERG: Just one. It may have been answered. I may have been distracted, Your Honor.

THE COURT: Just for the record, I don’t know that you’ve talked yet today. Can you put your name on the record.

MR. GINSBERG: Seth Ginsberg, appearing for Roger Stone.

THE COURT: Okay.

MR. GINSBERG: Do you recall the date on which it was transmitted to the defense?

MR. MARANDO: No, but it would have been close in time. My feeling, just going back and remembering, it was very close in time.

MR. GINSBERG: And the date that you said that Mr. Kravis went and created the list was what date?

MR. MARANDO: I don’t know the exact date, but it would have been shortened time to after we were invited to go and copy it down, and then we would have gotten the list and sent it over.

MR. GINSBERG: And you were notified on or about October 31st, 2019, that the list was available?

MR. MARANDO: That’s what the e-mail says.

COURT: Yes, it says they were notified at 5:24 p.m. on October 31st. So it would be my guess that you did not come on October 31st. I don’t know that we would have kept chambers open for that, but that you could come at any point between — the next day was a Friday, and then Monday was the return of the pretrial conference; is that correct?

MR. MARANDO: Exactly; that’s right.

MR. GINSBERG: And jury selection was on the 5th?

MR. MARANDO: Yes.

THE COURT: It began on the 5th, correct.

MR. GINSBERG: So it was somewhere between November 1st and November 5th?

MR. MARANDO: Yes, but more likely it would have been November 1st. It would have been right after that. We wouldn’t have — because then November 2nd would have been a Saturday. November 3rd would have been a Sunday. We wouldn’t have waited until November 4th to get this. I’m assuming we would have just hopped on it the next day.

In the interim 7 months, the FBI may have narrowed when the questionnaires got sent out. Which makes Ginsberg’s attempt to muddy that timeline rather curious (he is a very thorough lawyer, but I also find it interesting that the one lawyer not on the trial team posed these questions).

At the time, Amy Berman Jackson seemed to suspect two lawyers who had not filed an appearance in the case might have been the culprits. One of them, Tyler Nixon, was also interviewed to be a witness against Randy Credico.

THE COURT: So you worked electronically on them until you came for trial and then had a paper set?

MR. BUSCHEL: Yes. We were able to — as you can see, each .pdf is broken down juror by juror. So if you’re looking for 12345, you could just pull up 12345 .pdf.

THE COURT: So who had access to the .pdfs?

MR. BUSCHEL: Everyone on the defense team, lawyers, Mr. Stone. And do we — and there are a couple of lawyers that did not file appearances in this case. Do you want to know their names?

THE COURT: Well, yes. I seem to remember they were seated here at the beginning of trial, and then we didn’t have space for them inside the well of the court, and they had to step out.

MR. BUSCHEL: Right. THE COURT: But yes, if there were additional attorneys
who had electronic access to the information —

MR. BUSCHEL: For a period of time electronically, Bryan Lloyd, Tyler Nixon.

But certainly Robert Buschel did admit that his client the rat-fucker had the files and could have sent them.

Ultimately, though, the real reason for this gag would seem to keep the information from Stone, who presumably expects a full pardon before Trump leaves office. If Stone were the culprit here, the charges would replace those he got commuted.

But magically this sealed application ended up on PACER, if that’s really how it happened, with people pitching the seemingly obscure site it got posted on to make it into a bigger story.

And I’m not sure it’s just the jury questionnaires at issue. As the application notes, Wohl and Burkman also claimed to have gotten Steve Bannon’s grand jury transcript. In it, he told some truths about the 2016 operation that he didn’t otherwise share with the FBI. Not all of it pertains to Stone (they had to redact it for trial). That suggests there may be more interesting details that would interest very powerful people.

As Sommer notes, this order was submitted just three days after the hoaxsters staged a fake FBI raid. It’s possible that they did know about the investigation, and the fake raid (for which they paid $400 per fake FBI officer) was just an attempt to alert co-conspirators.

And now a purportedly sealed call records order wasn’t properly sealed after all.

The Maryland US Attorney’s Office Included Erik Prince in a FOIA Response on the Stone Sentencing

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Jason Leopold once again did more for overseeing DOJ than the House Judiciary Committee managed — this time beginning the process of liberating documents held by the US Attorney’s Office pertaining to Roger Stone’s sentencing. As Leopold notes in his story on the documents, this was the first of several installments, so more interesting documents may come out later.

This installment clearly all came from the Maryland US Attorney’s office, reflecting the mailbox of Aaron Zelinsky, who has always been and remains employed there; he returned there full time after he resigned as a Special AUSA assigned to the Mueller team. The remaining installments — at least those from the EOUSA — will likely mirror this production, but also include emails involving Timothy Shea’s Chief of Staff, David Metcalf, JP Cooney, John Crabb, and Alessio Evangelista, who were also involved in the events of February 10 and 11.

Maryland may have responded quickly to this FOIA because it is more sympathetic to Zelinsky’s efforts. Indeed, the most interesting exchanges in these emails show Zelinsky discussing these matters with people in that office. On February 10, he kept Jonathan Lanzner in the loop, letting him know when, “looks like they are blinking.” The following day, just after DOJ disavowed the sentencing memo approved just the night before (which the prosecutors appear to have found out about via media reports), Zelinsky made an urgent request of three others in MD USAO. There was some discussion of precedent and a drafting of a document. But after Zelinsky withdrew from the case, he alerted them that “we will not have the opportunity to do” whatever they were trying to do.

As discussed, I have filed the withdrawal motion and emailed the public corruption chief JP Cooney. I withdrew just after I sent the email below notifying him. As we discussed, I do not believe he has the power to compel  me to stay in the case. There are currently three attorneys on the docket for the United States. In addition, JP has indicated that Main Justice will file a motion of somekind in the case later today and we will not have the opportunity to do this.

Nevertheless, there’s a follow-up with Lenzner later in the day. In it, Zelinsky makes it clear that his Memorandum of Understanding (presumably pertaining to his SAUSA role tied to Mueller) only pertains to Roger Stone.

The suggestion that these events may have affected other cases, to which Zelinsky’s MOU did not apply, is particularly interesting given that DOJ deemed an email to Zelinsky from Erik Prince’s lawyer attaching a story about that investigation, sent after everything started blowing up, to be responsive to this FOIA.

I see no reason why that email would be included in this FOIA response (the attached WSJ story, for example, does not mention the Stone). But for some reason, Maryland’s US Attorney’s office considers it responsive to the Leopold FOIA.

I’ll have more to say about this FOIA response in a bit.

I have included all the emails, save some inquiries from journalists, in the timeline below. Note that it is difficult to distinguish between b5 (deliberative) and b6 (privacy) in these redactions, so I may have gotten a few of those wrong.

February 10

7:49: Zelinsky sends his US Attorney email, “Zelinsky Withdrawal Motion Draft 2.docx.”

7:52: Zelinsky forwards his draft withdrawal motion, still titled, “Zelinsky Withdrawal Motion Draft 2.docx,” to Adam Jed and Jonathan Kravis (but not Michael Marando), stating, “A much slimmer version — let me know what you think.” Note that the email he attached the draft to has a time stamp of 7:46, preceding the one above. This appears to be substantially the motion he submitted the following day.

9:01: A Maryland US Attorney employee, Paul Budlow, responds to Zelinksy regarding a “Presentations Skills for Training and Trial” course in March, saying only “Thanks.” The email was likely responsive because of what Zelinsky said to Budlow on Friday, February 7, which is redacted under b6.

9:40: Email from John Kruzel at The Hill.

1:25: Zelinsky sends Marando his withdrawal letter, now titled, “Zelinsky Withdrawal Motion Draft Final.docx.”

2:04: Zelinsky writes Jonathan Lenzner at Maryland’s US Attorney’s office with the subject line, “Looks like they are blinking.” It is redacted under b5.

2:05: Timothy Shea’s Chief of Staff David Metcalf emails Zelinsky, “If you actually want to talk, let me know.” The rest is redacted under b6.

2:07: Zelinsky responds to Metcalf. The first line is redacted under b6. The email then says, “What would you like to discuss? I am a bit busy because of Stone sentencing memo (as I’m sure you’re aware) and I [redacted, b6].

2:08: Lenzner responds. It is redacted under b5.

2:11: Zelinsky responds. It is redacted under b5.

3:25: Michael Marando emails the other three prosecutors, attaching a “Joint Submission re Redactions.docx,” with the subject link, “Can you let me know if this is OK?”

3:58: Zelinsky responds again to Metcalf, “I’m headed out now. Happy to talk by phone.” The rest of the email is redacted under b6.

4:22: Marando forwards email reading, “Counsel, the attached documents were filed with the Court under seal today.” Marando’s email that forwarded the PACER entry to Stone’s lawyers cc’ing the other prosecutors, which is (still sealed) docket number 278, is included in this FOIA production as well, but the time is not legible.

4:22: Kravis emails Zelinsky, “Final draft attached. Let me know when we have the ok to file.” He attaches, “stone sentencing memo 2-10-20.docx.”

4:22: Kravis emails Cooney, John Crabb, Alessio Evangelista, cc’ing the Stone prosecutors. “Final draft attached. Let me know when we have the ok to file.” Attached is “stone sentencing memo 2-10-20.”

4:28: Zelinsky responds to Kravis, “This says [redacted] got thirteen months. I thought it was 14?

4:30: Zelinsky responds again to Kravis, “Never mind. Looks like thirteen in all news stories.”

4:32: Zelinsky responds to Marando, “Thanks for doing this.”

6:02: Zelinsky receives ECF notice of the prosecutors’ sentencing memo, which was filed at 6:01.

6:07: Cooney emails “Team,” stating, “I just let Jonathan know that you have the green light to file the pleading.” The rest of the email is redacted under a b6.

7:04: Zelinsky responds to Cooney thanking him. The rest of the email is redacted under b6.

10:57: Zelinsky receives notice of Stone’s sentencing memo, which was filed at 10:55.

February 11

7:03 AM: Zelinsky forwards the sentencing memo from Stone’s attorneys, including the leniency letters, to the other prosecutors in the case, making some comment that was redacted for b5 and b6 reasons.

7:04 AM: Zelinsky responds to the Cooney email from the evening stating, “Thanks JP,” with the balance redacted for b6.

8:32: Adam Jed writes the other Stone prosecutors with the subject line, “Stone’s sentencing memo.” The content is redacted under b5.

9:50: Zelinsky responds to the other prosecutors regarding an email all four plus Timothy Shea got sent, calling them “Corrupt Whores” and “Are Poor FuckingEvil,” complaining they called for “7 to 9 years for Rodger [sic] Stone?” and calling them, “COCKROACHES.” Apparently this email merited a response, because he said,

I’ll draft a response. Good news– we know the U.S. Attorney won’t get this threat because he doesn’t use email.

12:02: Marando forwards an inquiry from The Hill’s John Kruzel, asking about the Fox story that DOJ is changing Stone’s sentencing recommendation, to Cooney, saying only “FYI.”

12:07:11: Cooney responds to Marando’s question, False.

12:07:32 PM: Marando forwards the 12:07:11 email from JP Cooney to Zelinsky.

12:13: Zelinsky responds to Marando and Kravis in the Cooney “False” thread, linking CNN journalist Shimon Prokupecz’s tweet quoting DOJ disavowing of the sentencing memo:

DOJ on Roger Stone: “This is not what had been briefed to the department,” the official told CNN. “The department believes the recommendation is extreme and excessive and is grossly disproportionate to Stone’s offenses.”

12:50: Zelinsky sends “Zelinsky Withdrawal Motion Draft February 11.pdf” to Neil White and John Sippel at Maryland’s US Attorney’s office, stating,

Dear Neil and John,

Sorry to buy you with an urgent request.

Quick background:

[long paragraph redacted under b5]

1:00: White responds. The first line is redacted under b5. The rest reads,

Jon briefed me about this earlier today. I tried calling you and I am happy to chat this afternoon. I can be reached at [redacted].

1:04: Zelinsky responds to White, cc’ing Roann Nichols, “Neil — on phone with DC now. Will call in a moment.”

1:13: Zelinsky emails Neil White cc’ing Roann Nichols, “Just tried you again. Thanks,”

1:55: Cooney sends an email, with only two periods, to Kravis, with the subject “memo.”

2:02: Kravis forwards the email from Cooney to the other prosecutors.

2:34: Zelinsky receives ECF notice of a letter in support of sentencing.

2:55: Kravis sends Zelinsky an email with the subject line, “Send me your notice?”

2:55:18: Zelinsky responds to Kravis. The first sentence is redacted under b5. The rest says, “JP approved this yesterday. If you see any typos, let me know!” He attaches, “Zelinsky Withdrawal Motion Draft February 11.docx.”

2:59: Zelinsky receives ECF notice of his withdrawal motion, which was filed at 2:58.

2:59:23: Zelinsky emails Cooney, cc’ing the other prosecutors, Withdrawal, attaching, “Zelinsky Withdrawal Final Signed FINAL.pdf”:

Dear JP,

Pursuant to our conversation yesterday and your approval of this filing yesterday, I am now filing the attached withdrawal from the Stone case and resigning as a SAUSA in DC.

2:59: Zelinsky again responds to Kravis with the file, “Zelinsky Withdrawal Motion Draft February 11.docx.”

3:00: Cooney responds to Zelinsky, “I am not approving of you withdrawing from this case right now.”

3:02: Zelinsky forwards Nichols and White the Cooney response, adding:

Dear Roann and Neil,

As discussed, I have filed the withdrawal motion and emailed the public corruption chief JP Cooney. I withdrew just after I sent the email below notifying him. As we discussed, I do not believe he has the power to compel  me to stay in the case. There are currently three attorneys on the docket for the United States. In addition, JP has indicated that Main Justice will file a motion of somekind in the case later today and we will not have the opportunity to do this.

Thanks for all yoru [sic] help.

3:04: Leo Wise responds to Zelinsky, explaining, Attached is a rough redlined draft. Also attached is the case [redacted] is also attached. The subject of the email and the names of the attachment are also redacted.

3:30: News Alerts from Law360 that includes reference to the sentencing memo filed the day before.

3:41: Steven Brill writes the Stone prosecutors urging them to “speak out against improper internal pressure.”

3:55: Zelinsky receives Kravis’ withdrawal motion from ECF; it was filed at 3:54.

4:04: Zelinsky forwards an email from NBC’s Kevin Breuninger asking for a statement on his withdrawal to the press people in Maryland’s US Attorney’s office, telling them, “I’m just going to forward these to you. THanks! Sorry!” Other standard emails he forwarding included one from The Hill, CNN (Katelyn Polantz), CBS, CNN (Wolf Blitzer).

4:04: Zelinsky forwards an email from Reuters’ Brad Heath, with the subject line 44.5, asking if the notice of withdrawal was his own decision; Zelinsky forwarded it to the press people in Maryland’s US Attorney’s office

4:38: Zelinsky receives ECF notice that John Crabb filed an appearance in the case

4:46: Zelinsky receives ECF notice of the revised sentencing memo, which was filed at 4:44

5:01: Marcia Murphy, one of the press people in MD USA, responds Zelinsky regarding an email he forwarded from CNN explaining,

Aaron,

I have responded to all the inquiries you forwarded with something similar to the below statement. I tried to make it clear that I was responding on your behalf, so they wouldn’t think the office was preventing you from making a statement. If you get anymore, I will be happy to respond. Have a good evening. Hope you get some rest! Marcy

5:32: Zelinsky receives Marando’s notice of withdrawal from ECF; it was filed at 5:30.

7:08: Michael Cunningham, in the Maryland US Attorney’s Office, emails the NYT story on the Stone prosecutors withdrawing to Zelinsky, saying, “Very proud of you!”

9:10: Zelinsky responds to Cunningham: “Thanks! Just doing what any of us would have done in the circumstance.”

10:03: Lenzner responds to the Nichols and White email. His response is redacted under b5.

10:21: Zelinsky responds to Lenzner, starting, “Thanks. My MOU is certainly only for the Stone case.” The rest is redacted under b5.

10:36: Zelinsky responds to a thread involving Stuart Sears about a panel on Political Prosecutions involving, among others, Jeannie Rhee (the panel would later get delayed until September). The first part is redacted under b5. It finishes, “Thanks for the kind invitation.”

11:26: Zelinsky forwards an email from Erik Prince’s lawyer, Boies Schiller’s Matthew Schwartz to Michael Marando, explaining, FYI I don’t plan to respond. The email itself reads:

Aaron —

I hope all is well. I couldn’t help but notice the article just published in the Wall Street Journal, which suggests that the Department is on the verge of charging Mr. Prince. What’s going on?

 

The President’s Conspiracy Theories Get More Whacko than George Papadopoulos’

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Perhaps because the entire legal establishment is pushing back against Bill Barr’s wholesale politicization of DOJ, the President is disturbed on Twitter. After launching a 3-tweet tirade against juror Tameka Hart and Judge Amy Berman Jackson based off a Judge Andrew Napolitano appearance on Fox on Friends (that perhaps unsurprisingly neglects to remind his followers that Napolitano made a case in favor of Trump’s removal by the Senate). he then launched a 3-tweet tirade against the Stone prosecution more generally.

I’m interested in it because of the way Trump attempts to deploy all the other conspiracy theories he has against the Russian investigation to the Stone prosecution, to which they simply don’t apply.

Start with the way Trump claims that 1) the Mueller investigation was “illegally set up” based on the Steele dossier and 2) “forging documents to the FISA Court.”

This is a conceit that has worked well since Paul Manafort, fresh off a meeting with an Oleg Deripaska deputy, suggested Trump could use attacks on the dossier to attack the Mueller Report.

Except one glaring fault of the dossier is that Roger Stone, who had already made comments that suggested he had a direct role in the operation by the time FBI opened investigations on the four initial subjects of it, doesn’t appear in the Steele dossier.

Moreover, whatever else the DOJ IG Report on the Carter Page FISA applications showed, it also showed that the predication of the investigation had nothing to do with the Steele dossier; in fact, Steele’s reports didn’t make it to the investigative team until about six weeks after opening the investigation.

Further, the suggestion that Kevin Clinesmith’s alteration of an email in June 2017 to claim that Page was “not a source” for CIA had anything to do with Roger Stone’s investigation falls flat given that Mueller’s team obtained the first warrant targeting Roger Stone on August 4, 2017, and there’s no insinuation anywhere that Stone ever spoke with Carter Page. (Indeed, in spring 2016, Stone was bitching to Rick Gates that he was not in the loop of foreign policy discussions.) In fact, had Roger Stone been more closely associated with Trump’s freebie foreign policy team, than both Page and George Papadopoulos’ claims to know nothing of campaign efforts to optimize WikiLeaks’ releases would be anything but exculpatory, as DOJ IG treated them, since Stone was doing just that in the time period when they were asked by informants.

Plus, Robert Mueller testified under oath that his team didn’t have anything to do with the Carter Page FISA order. And the investigative record shows that the investigation into Page was largely done by the time Mueller took over.

There’s simply no tie between either the Steele dossier or the Page FISA warrants and Roger Stone’s prosecution.

Trump continues to claim that Mueller interviewed to be FBI Director, even after evidence showing that Steve Bannon, Reince Priebus, and Don McGahn debunked this in real time, not to mention Rod Rosenstein’s 302 that shows that Mueller specifically said he did not want to be interviewed before he met with Trump about Jim Comey’s replacement. That is, a bunch of witnesses — all Republicans — say Trump is wrong.

The most interesting accusation is that the prosecutors who won a conviction against Stone “were Mueller prosecutors.”

Two were: Aaron Zelinsky and Adam Jed.

But two weren’t. Jonathan Kravis (the sole prosecutor who quit DOJ entirely) and Michael Marando were career DC prosecutors brought in to prosecute the case after Mueller shut down. These were, pointedly, not Mueller prosecutors, and the case still went off without a hitch.

In fact, in his interview the other day, Bill Barr made quite clear that this prosecution happened on his watch, and he believes it’s a righteous prosecution.

BARR: Well, as you know, the Stone case was prosecuted while I was attorney general. And I supported it. I think it was established, he was convicted of obstructing Congress and witness tampering. And I thought that was a righteous prosecution. And I was happy that he was convicted.

If Trump has a problem with the guy who prosecuted the case against Roger Stone, he has a problem with his Attorney General Bill Barr.

Which may be why Trump — who shouldn’t be affected by mere lies by Roger Stone to Congress — is threatening to “sue everyone all over the place.” Of course, he is affected by Stone — Stone is going to prison to protect the President, to avoid describing the multiple conversations they had about optimizing the WikiLeaks releases. And suing (whom?!?!) won’t help Trump suppress that.

The President sounds crazier than George Papadopoulos in this rant, and his conspiracy theories are just as unhinged. Which is, I guess, what happens when all the conspiracy theories you’ve been using to undermine the prosecution implicating you turn out to be utterly irrelevant to the most important firewall to protect.

The Timeline Suggests Bill Barr Removed Jesse Liu to Intervene for Trump’s Rat-Fucker

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Far be it for me to doubt Bill Barr’s ability to manufacture a cover-up. He’s damn good at it, that’s why he was hired, and he’s got a lot of power to use to execute one.

But it’ll be harder this time around than it was for Poppy Bush, in part because Barr’s principal has the propensity to go off half-cocked, the frothy right doesn’t think rationally, and Barr himself may believe what he sees on Fox News more than what he sees in court dockets, to the extent he even reviews court dockets.

That’s particularly true given the timeline leading up to the Tuesday Night Massacre, because it appears to show that Bill Barr removed Jessie Liu — and then Trump withdrew her nomination excusing that removal — mostly (at least as far as what is visible thus far) to intervene for Trump’s rat-fucker, Roger Stone.

At least as the timing of the DOJ filings reflect, Barr intervened with the strategy he claimed to Pierre Thomas to apply with Roger Stone with Mike Flynn, providing reasons for Judge Emmet Sullivan to sentence lightly, but leaving it up him. Importantly, Jessie Liu proved willing to do that on January 29; she signed the softened Flynn sentencing memo (though it’s possible Trump submitted her nomination on January 6 in response to the discussions around the initial, harsher memo).

The next day, per dates included in the Roger Stone sentencing memo, DOJ submitted an objection to the January 16 Presentence Investigation Report.

Probation and the Government, however, incorrectly maintain that the following offense level increases are applicable:

Specific Offense Characteristics U.S.S.G. §2J1.2(b)(1)(B) 8 level increase ¶76 1

Specific Offense Characteristics U.S.S.G. §2J1.2(b)(1)(2) 3 level increase ¶77

Obstruction of Justice U.S.S.G. §3C1.1 2 level increase ¶80

Obstruction of Justice 2 U.S.S.G. §2J1.2(b)(3)(C) 2 level increase ¶77

1 Paragraph references are to the Presentence Investigation Report, dated January 16, 2020, (“PSR”). [Dkt. #272].

2 Government’s Objection to Presentence Investigation Report, dated January 30, 2020.

Possibly, given footnote 2, they added language to substantiate the extent to which Stone went to sustain his cover-up.

Pursuant to U.S.S.G. § 2B1.2(b)(3)(C), two levels are added because the offense was otherwise extensive in scope, planning, or preparation. Stone engaged in a multi-year scheme involving (1) false statements in sworn testimony; (2) the concealment of important documentary evidence; (3) further lies in a written submission to Congress; and (4) a relentless and elaborate campaign to silence Credico that involved cajoling, flattering, crafting forged documents, badgering, and threatening Credico’s reputation, friend, life, and dog. Stone’s efforts were as extensive, if not more extensive, than those of other defendants who received this two-level enhancement at sentencing.

That’s when Barr appointed Timothy Shea as interim US Attorney, effective just two business days later, the one way to take Jessie Liu out of the command structure immediately.

According to Barr’s interview, Shea started asking questions about Stone’s sentencing a week before the memo got submitted. That means Shea spent his first day focused on the Stone sentencing. That makes it hard to believe he was installed for any other reason but to help Stone out.

The first Trump-related motions — basically to remove Flynn’s attorney-client privilege so Covington’s lawyers can expound on how many lies Flynn told them about Russia and his work for Turkey — showed no discernible Barr influence (though Flynn’s reversal on continuing these discussions may have).

Barr provided several somewhat contradictory explanations for what happened on February 10 to Thomas. He claims that Shea “came by” DOJ and alerted Barr that line prosecutors still wanted to recommend the 7-9 year sentence calculated by the Probation Office. Then Barr suggested that he got involved here because line prosecutors who have decades of experience are too junior to make “life or death” decisions.

What other industry allows life or death decisions to be made by the most junior level of the business.

Not long later, however, Barr denied intervening in a case.

Most cases don’t come up to the Attorney General because people are doing a good job.

Some people saying AG intervening in a case. That’s preposterous! We have an escalation system that tries to get the difficult issues that are, you know, people are arguing about, to get them up for resolution and it’s the Attorney General’s decision to decide it.

But here’s the key: Barr claims he only got involved in Stone’s sentencing memo because “difficult issues” got escalated.

Except they only got escalated because he had just installed his hand-picked flunky to oversee this. This wouldn’t have been escalated if Liu were still in place.

All the evidence suggests that Bill Barr replaced Jessie Liu to give himself an excuse to intervene personally in Stone’s sentencing.

And what will it get him? I suspect Judge Amy Berman Jackson would never have sentenced Stone to 7 to 9 years —  the harsher sentence — in any case (especially given that she only gave Paul Manafort 7.5 years). She probably would have given Stone 4-5 years and might still, a slight enhancement for the threat against Randy Credico, but not much. But this drama about sentencing is likely not the big question, given that Stone is likely to have his sentence commuted, one way or another, on November 4, the day after election day. So the real question is how much of the next nine months he serves in prison, which ABJ has some control over, especially given Stone’s propensity to make threats when he’s not in prison or gagged. If ABJ sentences Stone to 4-5 years — close to what Barr has now signed off on in very public and intrusive fashion — but sends him to prison right away, it’s less likely Trump will do something immediate, like pardon him. Whereas, had Barr not intervened, it would have had the same effect but without Barr’s tacit approval for a 3-4 year sentence.

I can’t decide whether the plan here is to make judges look unreasonable — which could happen when Sullivan sentences Flynn to prison, except for the really atrocious details about how Flynn was secretly working for a frenemy government while purportedly advising Trump on national security issues. Or whether it’s to minimize sentence time — which Barr hasn’t done by endorsing a sentence just a year or so less than what ABJ might be inclined to give anyway.

Meanwhile, after inventing a way to remove Jessie Liu immediately, Lou Dobbs and a bunch of other frothers convinced the President to withdraw her nomination, possibly encouraged by the threat of questions about all this in her confirmation hearing, which was scheduled for yesterday. She resigned yesterday from whatever desk Trump parked her at to make way for Shea. She’s a pretty loyal Trumpster, so it’s unclear whether she’ll go quietly. But if she chooses, as a private citizen she’s now entitled to respond to subpoenas from Congress, and between her and Jonathan Kravis (who also resigned entirely from DOJ), she can explain what is really going on.

Meanwhile, Shea is now on the clock: he has until June 2 to complete shutting down any investigations into Trump. Unless the Senate confirms a successor that has not yet been confirmed, then Chief Judge Beryl Howell will be able to pick his replacement. And she was none too happy about this week’s drama.

December 10, 2019: Trump announces intent to nominate Jessie Liu to Treasury

January 4: DOJ asks for one more day to submit Flynn supplemental sentencing memorandum; signed by Liu

January 6: Trump nominates Liu to Treasury

January 7: DOJ submits harsh sentencing memo that nevertheless asks for guidelines sentence; signed by Liu

January 16: Probation Office completes Stone PSI recommending 7-9 years

January 22: DOJ notices court that they’ve provided the last of the Flynn 302s; signed by Liu

January 29: DOJ submits reply sentencing memo, with probation recommendation; signed by Liu

January 30: DOJ submits objection to Stone PSI; Barr appoints Timothy Shea DC US Attorney, effective February 3

February 3: Shea starts; per ABC interview, starts asking questions about the sentencing

February 5: Senate acquits Trump

February 9: DOJ files motion to continue briefing schedule and motion to confirm waiver of attorney-client privilege; signed by Jocelyn Ballentine; Brandon Van Grack not on motions, but probably in preparation for hearing

February 10: Shea “comes by” DOJ and tells Barr the team wanted to recommend 7-9 recommendation; Barr “under the impression” that “what was going to happen was what I had suggested;” DOJ files sentencing memo recommending 7-9 years; Barr claims he decided at night to amend recommendation

February 11:

3:07: Aaron Zelinsky withdrawal

3:56: Jonathan Kravis withdrawal

4:34: John Crabb Jr. files appearance

4:40: Supplemental sentencing memo created, signed by John Crabb Jr

5:27: Adam Jed withdrawal

5:39: Michael Marando withdrawal

6:10: Supplemental sentencing memo finalized

February 12: Trump withdraws Liu’s nomination; DOJ submits response to motion to dismiss; signed by Brandon Van Grack; Jessie Liu resigns from Treasury desk she was parked at to make way for Shea

February 13: Bill Barr does staged interview where he dodges any real explanation for his interference

June 2: Timothy Shea’s interim appointment expires

Steve Bannon’s Grand Jury Secrets

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In preparation for several other posts, I want to follow up on this post — Steve Bannon’s 302 of Laughter and Forgetting — and lay out what we know of Bannon’s other testimony to Mueller.

I said in that post there are four known Bannon interviews.

  • February 12, 2018 (26 pages)
  • February 14, 2018 (37 pages)
  • October 26, 2018 (16 pages; the interview list lists three different interviews, but they are likely just copies of the same one)
  • January 18, 2019 (4 pages)

But that’s not right. Bannon was asked by Stone lawyer Robert Buschel in cross-examination at the Roger Stone trial whether he had “sat down with” prosecutors recently.

Q. You just gave an interview in preparation for your testimony today, right, with the government, with the Department of Justice?

A. What do you mean, an interview?

Q. Did you sit down with them recently?

A. Yes.

So one of the six 302s that post-date the end of the Mueller investigation must be from Bannon (at least two are presumably Randy Credico, there were two other non-governmental witnesses who testified, Rick Gates and Margaret Kunstler, and Andrew Miller was flown into DC to testify but did not ultimately do so).

The government got Amy Berman Jackson to approve the partial redaction of the grand jury transcript of one witness on August 26, 2019. That may well be Bannon (in which case his interview must have been on July 26, 2019), because as I’ll explain, prosecutors had to use his grand jury testimony to get him to adhere to his previously sworn testimony.

Before I get there, consider that the government is still withholding Bannon’s first interview report, from February 12, 2018 (I suspect, based on the unredacted content of the February 14, 2018 one, that that first one focuses on Trump’s obstruction). As I laid out in my “Laughter and Forgetting” post, Bannon clearly shaded the truth significantly in his February 14 one.

On October 26, 2018, we know Bannon admitted to details about the WikiLeaks dump that he hadn’t before, most notably an October 4, 2016 email from his non-campaign “arc-ent” email (which he described in his February 14 testimony) asking Stone why Assange hadn’t released emails as promised that day, because in the week after his testimony he and Stone floated competing half-truths and lies on the pages of the WaPo, NYT, and DailyCaller.

But Bannon likely still didn’t tell the full truth on October 26, because on his next known interview, January 18, 2019 (so just days before Stone’s arrest), he signed a proffer with Mueller covering that day’s interview and an appearance the same day before the grand jury. The government has released the proffer but not the actual interview. That means that, apparently for the first time in hours and hours of testimony, Bannon’s competent lawyers either expressed concern about his legal exposure or that he had lied in a past interview and Mueller was using that to finally get the truth out of him.

There were two topics in Bannon’s testimony that prosecutor Michael Marando used to get Bannon to adhere to the sworn testimony he was willing to give in a secret grand jury. First (though it came second in his testimony), that he regarded Stone as the campaign’s access point to WikiLeaks.

Q. While you were CEO of the Trump campaign, who, if anyone, was the campaign’s access point to WikiLeaks?

A. The campaign’s access point?

Q. Yes.

A. I don’t think we had one.

Q. I want to refer back to Government’s Exhibit 209 that’s in front of you. This is the same grand jury transcript that I showed you before, correct? Am I correct?

A. Yes.

Q. Okay, this is your testimony in the grand jury. This was the Robert Mueller grand jury, correct?

A. Yes.

Q. Now, I want you to turn to page 14, line 4. I’m going to read line 4 through 8 on page 14. And you’re asked, “And just within the campaign, who was the access point to WikiLeaks?”

And you responded, “I think it was generally believed that the access point or potential access point to WikiLeaks and to Julian Assange would be Roger Stone.”

Did I read that correctly?

A. That’s correct.

Q. And did you, at that time, did you personally believe or you personally view Roger Stone as the access point between Trump campaign and WikiLeaks?

A. Yes.

This what the testimony where Buschel described Bannon reversing his prior testimony in his more recent interview.

Q. And did they ask you that precise question, whether you thought Roger Stone was an access point to WikiLeaks?

A. I think they asked me the exact question they just asked me a few minutes ago.

Q. And you gave a different answer than you just gave right now, didn’t you? You said that Roger Stone — you and the Trump campaign did not view Mr. Stone as an access point between the Trump campaign and WikiLeaks.

A. The campaign had no — had no official access to WikiLeaks or to Julian Assange, but Roger would be considered, if we needed an access point, an access point because he had implied or told me that he had a relationship with WikiLeaks and Julian Assange.

In addition, Bannon had to be forced to adhere to his grand jury testimony describing that Stone had boasted of his relationship with Julian Assange going back months before Bannon joined the campaign on August 14, 2016.

Q. Does that date sound like the time that — I’m sorry. January 18th, 2019. My apologies. Did you testify on January 18th, 2019?

A. I have no idea.

Q. Does that sound correct?

A. Yes.

Q. Now, there were prosecutors that were present there, correct?

A. They were, yes.

Q. Andrew Goldstein, does that sound correct?

A. Yes.

Q. And you were the witness that was there, correct?

A. Yes.

Q. There was a court reporter that was taking down everything you said, correct?

A. That’s correct.

Q. And there were grand jurors there; isn’t that right?

A. That’s correct.

Q. You took an oath — the defendant, Mr. Stone, was not there; is that right?

A. That’s correct.

Q. You took an oath to tell the truth; isn’t that right?

A. That’s correct.

Q. And the prosecutor asked you a number of questions; isn’t that right?

A. That’s correct.

Q. But before he asked you any questions, he advised you of your rights as a witness; is that correct?

A. That’s correct.

Q. All right. And he told you that if you failed to tell the truth before the grand jury, you could be charged with perjury; isn’t that right?

A. That’s correct.

Q. And you told the grand jury that you understood that right; isn’t that correct?

A. That’s correct.

Q. I want to turn to page 7, if you can. Let me know when you’re on page 7.

A. I’m at page 7.

Q. Line 15?

A. Yes.

Q. So you were asked at page 7, line 15, “And when you had private conversations with him about his connection to Julian Assange, approximately how far in advance of your joining the campaign did that conversation take place?”

And you responded, “Oh, I think the first time it was months before, but I think it all the way led up to right before I joined the campaign. It was something he would, I think, frequently mention or talk about when we talked about other things.”

Did I read that correctly?

A. That’s correct.

Q. All right. Now, in any of your conversations with Mr. Stone, did he ever brag to you about his connections to Assange?

A. I wouldn’t call it bragging, but maybe boasting, I guess the difference between bragging and boasting, but he would mention it.

Q. What do you mean by “boast”?

A. That he had a relationship with WikiLeaks and Julian Assange.

As noted, one witness — and Bannon is the only witness who had to be steered using a grand jury transcript — had selected bits of his grand jury released to Stone (though Amy Berman Jackson ultimately did not let prosecutors send the transcript to the grand jury).

That suggests there are other parts of that grand jury transcript in which he admitted to things he has otherwise tried to shade.

Why Roger Stone Threatened to Sue emptywheel!

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Remember when Roger Stone threatened to sue me? It was in response to this post, in which I noted that Don McGahn had been helping Stone rat-fuck for Trump for years.

Well, it turns out that that’s the topic of something the government would like to introduce as evidence about why he lied to HPSCI.

As I noted, a debate over whether the government can introduce 404(b) evidence at trial — often used to show motive — has been going on under seal. But a snippet of the topic got aired in yesterday’s hearing on such issues. And one of the things the government wants to introduce under 404(b) is that, in addition to all the lies Stone told HPSCI laid out in his indictment, he also told further lies about his coordination with the Trump campaign.

Separately, Jackson also held off in ruling on Stone’s bid to block DOJ from talking about other alleged false statements he made before the House committee during the September 2017 testimony that led Mueller to press charges.

During Wednesday’s hearing she fretted that raising Stone’s statements could prolong the trial and confuse jurors over allegations that the government didn’t choose to prosecute.

DOJ attorney Michael Marando argued that the government’s allegations needs to be heard in the context of Stone’s overall motivations.

“He went in with a calculated plan to lie, to separate himself from the campaign in order to shield the lie about his connections to WikiLeaks. He had to create that space,” Marando said.

One of those lies pertains to Stone’s communication with the campaign about the activities of his PAC.

Assistant U.S. Attorney Michael J. Marando argued that Stone falsely denied communicating with Trump’s campaign about his political-action-committee-related activities, and that the lie revealed his calculated plan to cover up his ties to the campaign and obstruct the committee’s work.

Rogow disagreed, calling the allegation more prejudicial than revealing and saying that it would divert jurors into a matter that Stone was not charged with.

Note, this is likely why he wants to call Steve Bannon, which other news outlets are inexplicably quite surprised about; Stone asked Bannon for funding from Rebekah Mercer for this stuff. And, as I noted in the post in question, Don McGahn helped Stone avoid charges for voter intimidation for his PAC activities. So I guess Stone wanted to sue me because I laid out proof that he lied to HPSCI about something that served the larger purpose of distancing his rat-fucking from the campaign.

Amy Berman Jackson ruled on most of the motions in limine as follows:

Government motion to introduce two categories of 404(b) evidence: Under advisement

Government motion to introduce two newspaper articles related to such evidence: Denied, with the opportunity to submit redacted versions if the evidence is submitted

Government motion to exclude claims of prosecutorial misconduct: Granted, but Stone can introduce impeachment information

Government motion to exclude evidence of Russian interference: Granted

Stone motion to introduce evidence challenging claims that WikiLeaks obtained stolen documents from Russia: Denied

Stone motion to subpoena Crowdstrike for its reports to the DNC: Denied

Stone motion for a recording of his HPSCI testimony: Moot

Government motion to introduce upload dates for videos: Granted

Government motion to introduce an excerpt of Godfather II: Deferred

Government motion to partially redacted a grand jury transcript: Granted, along with permission to file a motion in limine to limit the same witnesses’ court testimony

ABJ ordered the two sides to figure out what portion of the HPSCI report they need to submit at trial, as well as what communications between Randy Credico and Stone should be excluded