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Spy Versus Spy: The Two Alleged Agents of Foreign Powers Sitting in the Alexandria Jail, Part One (Paulie)

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The Alexandria jail houses two alleged criminal agents of foreign influence: Paul Manafort and Mariia Butina. In the coming days, both may present interesting questions about the boundaries the US uses to define — and criminalize — foreign influence peddling. Legal questions in their prosecutions will address two questions:

  • What does it take to criminalize a failure to register as an Agent of a Foreign Principal?
  • What are the boundaries between Agent of Foreign Principals and Foreign Governments?

At issue are two laws: the Foreign Agents Registration Act, 22 USC 611 et seq., which requires certain people engaging in politics and propaganda for non-commercial foreign entities to register as their agents and to disclose the propaganda they disseminate. Mostly, FARA is a documentary requirement, but lying in the registration process can carry a five year sentence. That’s what Paul Manafort has been charged with. Butina has been charged with violating 18 USC 951, which basically criminalizes people who don’t register with DOJ (as, for example, diplomats would) when they spy for a foreign power; it carries a ten year sentence.

The problems with FARA … and distinguishing it from spying

As a DOJ Inspector General Audit completed in September 2016 laid out, people stopped complying with FARA in the 1990s, as any commercial lobbyists could register under the Lobbyist Disclosure Act more easily and FARA wasn’t rigorously enforced. The IG Report cited a bunch of reasons why FARA is not better enforced, such as that they aren’t staffed to be effective, nor do they have the investigative authorities DOJ thinks they need to figure out who’s not complying.

During our audit the FARA Unit was comprised of one Unit Chief, who is also an attorney; two staff attorneys; one Supervisory Program Manager; one Intelligence Research Specialist; one Program Specialist; and two Case Management Specialists.5 NSD staff emphasized that this is a limited staff, which is responsible for a considerable range of activities. The unit is responsible for processing and monitoring new and existing FARA registrations on an ongoing basis. This includes receiving, reviewing and processing documentation and payments, and addressing late or inaccurate submissions. The unit also performs periodic formal inspections to assess the adequacy of registrant reporting and disclosure, and conducts open source searches to identify individuals that may be obligated to register.

One of these two staff attorneys joined the FARA Unit during our audit. At the conclusion of our audit we were informed that the FARA Unit was back to one staff attorney, however the unit planned to hire a replacement.

[snip]

NSD officials stated that a major difficulty is a lack of authority to compel the production of information from persons who may be agents. As a result, NSD is currently pursuing civil investigative demand (CID) authority from Congress in order to enhance its ability to assess the need for potential agents to register.

Ultimately, however, DOJ almost never uses the teeth in the provision — prosecution — to ensure compliance.

Between 1966 and 2015 the Department only brought seven criminal FARA cases – one resulted in a conviction at trial for conspiracy to violate FARA and other statutes, two pleaded guilty to violating FARA, two others pleaded guilty to non-FARA charges, and the remaining two cases were dismissed. We were also told by NSD that the Department has not sought civil injunctive relief under FARA since 1991.

The IG Report cites two reasons why there aren’t more prosecutions. First, as the National Security Division explained, because it is so hard to get evidence of 1) willfulness, 2) that the agent is working under the “direction and control” of a foreign principal and 3) that the influence-peddling isn’t for some other (exempted) reason.

FARA contains a criminal penalty provision, and NSD approves criminal prosecution as an enforcement mechanism if there is sufficient admissible evidence of a willful violation of FARA, and the standards applicable to all federal criminal prosecutions set forth in the U.S. Attorney’s Manual are otherwise satisfied. The high burden of proving willfulness, difficulties in proving “direction and control” by a foreign principal, and exemptions available under the statute make criminal prosecution for FARA violations challenging. These challenges are compounded by the government’s current inability to compel the production of records from potential and current registrants, a situation NSD is working to remedy by proposing legislation for consideration by the Department of Justice (Department). Despite these challenges, the Department has brought four F ARA criminal cases since 2007, all of which resulted in convictions (one conviction at trial for conspiracy to violate F ARA and other statutes; two guilty pleas for violating FARA; and one guilty plea to related non-FARA charges).

The other reason why there aren’t more FARA prosecutions, per the IG Report, is because FBI agents confuse FARA (what Manafort is charged with) with 18 USC 951 (what Butin is charged with). Indeed, Agents mix the codes for the two crimes up in their filing system.

[W]hen we discussed FARA with FBI personnel, we found that they considered a “FARA case” to be a case investigated pursuant to either the FARA, 22 U.S.C. § 611, et seq., or 18 U.S.C. § 951 (Section 951), which is the federal statute that provides criminal penalties for certain agents of foreign governments who act in the United States without first notifying the Attorney General.12 Unlike Section 951, FARA requires agents of foreign principals engaged in legal political or quasi-political activities such as lobbying, government and public relations, tourism promotion, and foreign economic development activities in the United States to register and make detailed disclosures of their activities in the United States conducted on behalf of their foreign principals.13

By contrast, Section 951 was described to us by the NSD as “espionage lite” because a Section 951 case generally involves espionage-like or clandestine behavior or an otherwise provable connection to an intelligence service, or information gathering or procurement-type activity on behalf of a foreign government. Although FARA registration can serve as the required notification to the Attorney General under Section 951, NSD officials told us FARA and Section 951 involve different sets of elements and different types of issues. According to NSD officials, only 22 U.S.C. 611 et seq. constitutes a FARA case. Nevertheless, NSD officials acknowledged the differing views on what constitutes a FARA charge and are currently engaged in an ongoing effort to better educate field investigators and prosecutors on the difference.

12 According to NSD, notification under Section 951 may be made by registration under FARA in circumstances where the activity requiring notice is disclosed on the FARA registration form.

13 Political activities are defined by the statute as “any activity that the person engaging in believes will, or that the person intends to, in any way influence any agency or official of the Government of the United States or any section of the public within the United States with reference to formulating, adopting, or changing the domestic or foreign policies of the United States or with reference to the political or public interests, policies, or relations of a government of a foreign country or a foreign political party.”

Here’s how NSD described the difference.

Although OIG’s report reflects some criticism of aspects of NSD’s review of F ARA cases, NSD notes at the outset, as OlG acknowledged in the Report, that personnel interviewed in preparation of the Report frequently confused FARA (22 U.S.c. § 611 el seq) with 18 U.S.C. § 951 (“Section 951 “), a criminal statute entitled “Agents of foreign governments.” Although the two statutes have similar terms, they address different types of conduct. The typical conduct to which Section 951 applies consists of espionage-like behavior, information gathering, and procurement of technology, on behalf of foreign governments or officials. FARA, on the other hand, is designed to provide transparency regarding efforts by foreign principals (a term defined more broadly than foreign governments or officials) to influence the U.S. government or public through public speech, political activities, and lobbying. Accordingly, Section 95 1 is codified in Title 18 of the U.S. Code (designated for “Crimes and Criminal Procedure”), while FARA is codified in Title 22 (designated for “Foreign Relations”). Section 951 is aimed exclusively at criminally punishing individuals who violate its terms, and lacks a formal administrative registration regime. FARA in contrast, is predominantly a disclosure statute, under which there is an administrative registration regime, and while the Act authorizes criminal penalties for willful violations, the primary means of achieving FARA’s main purpose of transparency is through voluntary disclosure in compliance with the Act. The mistaken conflation of the two statutes can lead to undue weight being given to criminal prosecution as the measure of F ARA enforcement and insufficient recognition of the significance of administrative enforcement efforts relating to the FARA registration regime. It is therefore essential to understand the distinctions between FARA and Section 951 for purposes of this audit, the scope of which is expressly limited to the enforcement and administration of FARA.

Mueller’s two FARA pleas

Mueller actually already shifted the balance on FARA enforcement since that 2016 IG Report. Among the false statements Flynn pled guilty to is filing a false FARA filing.

On March 7, 2017, FLYNN filed multiple documents with the Department of Justice pursuant to the Foreign Agents Registration Act (“FARA”) pertaining to a project performed by him and his company, the Flynn Intel Group, Inc. (“FIG”), for the principal benefit of the Republic of Turkey (“Turkey project”). In the FARA filings, FLYNN made materially false statements and omissions, including by falsely stating that (a) FIG did not know whether or the extent to which the Republic of Turkey was involved in the Turkey project, (b) the Turkey project was focused on improving U.S. business organizations’ confidence regarding doing business in Turkey, and (c) an op-ed by FLYNN published in The Hill on November 8, 2016, was written at his own initiative; and by omitting that officials from the Republic of Turkey provided supervision and direction over the Turkey project.

And one of two conspiracy schemes (what I call ConFraudUS) to which Gates pled guilty is violating FARA.

GATES understood that it was illegal to engage in certain activities in the United States as an agent of a foreign pricipal without registering with the United States Government. Specifically, a person who engages in lobbying or public relations work in the United States (hereafter collectively referred to as lobbying) for a foreign principal such as the Government of Ukraine or the Party of Regions is required to register. Manafort, together with GATES’ assistance, engaged in a scheme to avoid this registration requirement for DMI, Manafort, and others.

These efforts — and Manafort’s prosecution — have already led to a significant increase in how many people are registering as foreign influence peddlers.

You can lose your profits if you don’t register

Particularly because Manafort’s case is so high profile, Mueller’s bid to prosecute him for FARA violations comes with high stakes and potentially high payoff — though DC District interpretations of the law. That said, the government has actually backstopped itself by charging Manafort’s sleazy influence peddling under multiple different crimes; the indictment actually uses seven different counts to hold Manafort accountable for hiding that he was an agent of a Russian-backed Ukrainian party, the Party of Regions (and its successor).

  1. ConFraudUs: Claiming Manafort prevented DOJ and Treasury from tracking his foreign influence peddling
  2. Conspiracy to Launder Money: Claiming Manafort and Gates laundered the proceeds of their Ukrainian influence-peddling
  3. FARA Violation: Claiming Manafort hid both his own lobbying for the Party of Regions and that he paid other influence peddlers to engage in
  4. Submitting a False FARA Statement: Claiming Manafort submitted a claim falsely claiming he didn’t need to register as a foreign agent
  5. False statements: Claiming he lied in his FARA filings
  6. Obstruction of justice: Claiming he tampered with witnesses associated with the Hapsburg group in an attempt to get them to lie about his failure to register as a foreign agent
  7. Conspiracy to obstruct justice: Claiming he conspired with former GRU officer Konstantin Kilimnik to tamper with witnesses

Manafort already tried and failed to narrow the application of FARA in two ways: first, by objecting to tying money laundering to FARA (and thereby tying a forfeiture to it). Second, Manafort tried to get either the false FARA statement (count 4) or the false statements (count 5) thrown as as multiplicitous. Amy Berman Jackson ruled against him on both attempts (forfeiture, multiplicitous), though the latter order basically just punted the issue until after trial.

The former is more interesting, in any case, because in her ruling ABJ took Manafort’s bid to distinguish FARA from 18 USC 951 and instead described how similar they are.

Section 951 of Title 18 states that “[w]hoever, other than a diplomatic or consular officer or attaché, acts in the United States as an agent of a foreign government without prior notification to the Attorney General” shall be fined or imprisoned for up to ten years, or both. 18 U.S.C. § 951(a). According to defendant, this statute criminalizes acting as a foreign agent, whereas FARA is merely a “regulatory scheme for foreign agent registration” that criminalizes only the willful failure to register. Def.’s Mot. at 5, quoting United States v. McGoff, 831 F.2d 1071, 1075 (D.C. Cir. 1987).

But the reference to section 951 does not support defendant’s position, since defendant acknowledges that section 951 plainly governs acting as an agent of a foreign government, and the language of the two provisions is quite similar. See Def.’s Mot. at 4–5; compare 18 U.S.C. § 951(a) (“Whoever . . . acts in the United States as an agent of a foreign government without prior notification to the Attorney General . . . shall be fined under this title or imprisoned . . . .”) with 22 U.S.C. § 612(a) (“No person shall act as an agent of a foreign principal unless he has filed with the Attorney General a true and complete registration statement . . . .”) and id. § 618(a) (imposing criminal penalties on any person who “willfully violates any provision of this subchapter or any regulation thereunder” or “willfully makes a false statement of a material fact or willfully omits any material fact” in a FARA statement). These laws are not just about paperwork; their object is to ensure that no person acts to advance the interests of a foreign government or principal within the United States unless the public has been properly notified of his or her allegiance. So both statutes expressly prohibit “acting” as a representative of a foreign entity without submitting the required notification to the Attorney General. For these reasons, the alleged international banking transactions could “promote,” and Manafort could realize “proceeds” from, a FARA violation.3

3 Defendant argues that section 951 does not bear on the issue presented here since it requires an “additional element” that FARA does not, and applies to “activities . . . under the control of a foreign government.” Def.’s Mot. at 4–5. But FARA also applies to agents of foreign governments. 22 U.S.C. § 611(b) (defining “foreign principal” to include “the government of a foreign country”). So the difference between the two provisions is that section 951 covers a narrower subset of foreign agents.

In addition to treating sleazy influence peddlers as akin to spies (albeit less serious ones) if they hide that influence peddling, ABJ’s order means that in DC, where all the sleazy influence peddlers work, a sleazy influence peddler can forfeit the money he makes off sleazy influence peddling if he doesn’t properly register to peddle influence.

Ouch.

The crime-fraud exception in FARA registration

Which brings us to one of the reasons why FARA is so hard to prosecute: the difficulty of proving willfulness. One way Mueller is getting around that is to rely on the testimony of the lawyer Manafort used to file his delayed FARA registration.

After Manafort’s influence-peddling for Ukraine became the focus of attention in 2016, the chief of the FARA unit wrote to Manafort and asked him if maybe he should have registered. Manafort hired Melissa Laurenza. She submitted three filings on Manafort’s behalf, on November 23, 2016, February 10, 2017, and June 27, 2017, all based on the representations made by Gates and Manafort (including that they had no record of communications with Tony Podesta and Vin Webber’s firms, but that they only retained email for 30 days). In the earlier filings, Laurenza claimed Manafort’s Ukrainian consulting didn’t include any outreach to US government officials or media outlets.

Last August, Mueller asked for and obtained Chief Judge Beryl Howell’s permission to compel Laurenza to testify under the crime-fraud exception to attorney-client privilege. Based off five lies for which Mueller provided evidence, Howell authorized Mueller’s team to ask seven questions of Laurenza about preparation of the FARA filings.

Then, earlier this month, a Taint Team lawyer asked for permission to have the taint Team turn over the emails that Laurenza used to write up her FARA filings. Manafort responded by claiming, in part, that he had never even seen the entirety of the litigation before Judge Howell. The Taint Team lawyer then produced the evidence that she had provided that information to Manafort in April.

If this thing goes to trial, we’re going to see a whole slew of evidence that Manafort was working directly for Viktor Yanukovych’s party, even while he hid that fact as he had Tony Podesta and Vin Weber lobby on Yanukovych’s behalf. That will get Mueller to the “direction and control” prong of the statute. By showing the efforts to which Gates and Manafort made to lie to their lawyer when they were finally forced to submit a FARA filing, Mueller will show that Gates and Manafort twice made sure that the FARA filing lied about what they had really been doing for Yanukovych.

One question I’m left with, particularly when we compare Manafort’s actions with Butina’s (which I’ll do in my next post), is why Mueller didn’t just charge Manafort with spying for Yanukovych, rather than just lobbying for him?

Update: Sam Patten, who also worked with Konstantin Kilimnik pitching Yanukovych’s party, is pleading guilty to FARA violations this morning.

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

Don McGahn’s Bullshit Report Covering Up the Flynn Firing

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Murray Waas, who writes about one and only one subject on the Russian investigation, has for the second time written a story claiming that a report Don McGahn wrote on February 15, 2017 — and not Trump’s serial offers to pardon people who are serving as his firewall —  is “the strongest evidence to date implicating the president of the United States in an obstruction of justice” and “the most compelling evidence we yet know of that Donald Trump may have obstructed justice.” Murray then goes on to parrot Rudy Giuliani’s preferred narrative about what would happen next.

Several people who have reviewed a portion of this evidence say that, based on what they know, they believe it is now all but inevitable that the special counsel will complete a confidential report presenting evidence that President Trump violated the law. Deputy Attorney General Rod Rosenstein, who oversees the special counsel’s work, would then decide on turning over that report to Congress for the House of Representatives to consider whether to instigate impeachment proceedings.

Because even people covering the story closely mistake the Flynn firing for an obstruction crime instead evidence of the conspiracy, I’d like to lay out why this story is silly. This will lay out things implicit in this post, which shows that in fact the White House narrative about Flynn is all an effort to treat his firing as obstruction and not “collusion.”

Neither story about Don McGahn’s exoneration of Trump should be credited

Murray claims that because Trump knew that Mike Flynn was under investigation when he asked Jim Comey to let the investigation into Flynn go, it will undercut an explanation offered in January that Trump thought Flynn had been cleared by the FBI.

In arguing in their January 29 letter that Trump did not obstruct justice, the president’s attorneys Dowd and Sekulow quoted selectively from this same memo, relying only on a few small portions of it. They also asserted that even if Trump knew there had been an FBI investigation of Flynn, Trump believed that Flynn had been cleared. Full review of the memo flatly contradicts this story.

The memo’s own statement that Trump was indeed told that Flynn was under FBI investigation was, in turn, based in part on contemporaneous notes written by Reince Priebus after discussing the matter with the president, as well as McGahn’s recollections to his staff about what he personally had told Trump, according to other records I was able to review. Moreover, people familiar with the matter have told me that both Priebus and McGahn have confirmed in separate interviews with the special counsel that they had told Trump that Flynn was under investigation by the FBI before he met with Comey.

Murray repeats a suspect McGahn timeline describing himself, along with Reince Priebus and White House lawyer John Eisenberg, “confronting” Flynn about intercepts showing that he had raised sanctions with Kislyak, contrary to what (they were claiming) he had told them.

On February 8, 2017, The Washington Post contacted the White House to say that it was about to publish a story citing no less than nine sources that Flynn had indeed spoken to Kislyak about sanctions. In attempting to formulate a response, Priebus, McGahn, and Eisenberg questioned Flynn. Confronted with the information that there were intercepts showing exactly what was said between him and Kislyak, Flynn’s story broke down. Instead of denying that he had spoken to Kislyak about sanctions, the timeline said, Flynn’s “recollection was inconclusive.” Flynn “either was not sure whether he discussed sanctions, or did not remember doing so,” the McGahn timeline says.

Priebus then “specifically asked Flynn whether he was interviewed by the FBI,” the timeline says. In response, “Flynn stated that FBI agents met with him to inform him that their investigation was over.” That claim, of course, was a lie. The FBI never told Flynn their investigation of him was over. Shortly thereafter, Vice President Pence, Priebus, and McGahn recommended that Flynn be fired.

According to the story Murray got snookered into repeating, because those three never informed Trump about this confrontation, his understanding of the investigation would remain what Priebus and McGahn had already briefed him — that Flynn was under investigation — and so by asking Comey to back off, he was obstructing justice.

In arguing that the president did nothing wrong, Trump defense attorneys John Dowd and Jay Sekulow, in both informal conversations and later in formal correspondence with the special counsel, relied on the false statements of Flynn to Priebus, McGahn, and Eisenberg that the FBI had closed out their investigation of him. In the attorneys’ reasoning, if Trump had no reason to think that Flynn was under criminal investigation when he allegedly pressured Comey to go easy on Flynn, the president did not obstruct justice. More broadly, Sekulow and Dowd argued in correspondence with the special counsel that the “White House’s understanding” was that “there was no FBI investigation that could conceivably have been impeded” at the time of Trump’s White House meeting with Comey.

But Sekulow and Dowd’s account of these conversations is partial and misleading. In fact, there is no information or evidence that Flynn’s false assertions were ever relayed to the president.

Murray doesn’t ask an obvious question: why, if Priebus and McGahn had already briefed Trump that Flynn was under investigation, they would have to confront Flynn about it. Nor does he mention a lot of other relevant details.

Two narratives

Before I get into the most relevant details, consider what we’re looking at: what Murray claims is his scoop, which provides more details on the original McGahn report, written the day after Trump tried to get Comey to end an investigation into why Mike Flynn lied about his conversation about sanctions on December 29, 2016. As always seemed the case and still appears to be true based on Murray’s claims about the report, the McGahn report misrepresented what Sally Yates said and a bunch of other things, but  in so doing laid out a narrative whereby the firing of Mike Flynn would serve as punishment for something Flynn did wrong.

Murray contrasts that with the letter Trump’s lawyers sent at the end of January but leaked in June in part to feed a narrative — one that had already been debunked — that Mueller was primarily investigating Trump for obstruction. The letter was Jay Sekulow and John Dowd’s attempt, in the wake of Mike Flynn’s cooperation agreement, to use the McGahn narrative to spin the firing of Flynn. In the January 29, 2018 telling, Flynn is not at fault, he’s just confused. And so, in the January letter, is the president. It portrays a story where no one really knew what Flynn said to Kislyak and everything that followed was just a big game of confused telephone for which the participants can’t be held legally liable. If Flynn were confused, of course, then his purported lies to Mike Pence would need to be excused, which is probably why Sekulow and Dowd didn’t address that part of the story.

When this whole process started — before Trump fired Jim Comey and in the process extended the investigation and got Robert Mueller looking into the stories being told — McGahn and Priebus and everyone else probably presumed that firing Flynn would shut everything down. That was the intent, anyway. Fire Flynn, end of investigation about why he lied to the FBI about discussing sanctions with Sergei Kislyak. And if you end the investigation, there would be no further scrutiny into what everyone else knew at the time, nor would anyone ask Comey and Yates their side of the story.

Of course, Trump fucked that all up, and fired Comey, which led to Mueller’s appointment, which led to his convening of a grand jury, which led to all that falling apart.

Bill Burck’s other clients already knew that Flynn had discussed sanctions

Which brings us to the most important of the missing details.

As noted, Trump couldn’t leave well enough alone and so fired Comey which led to Mueller which led to an actual investigation which led, in August, to Mueller obtaining the transition communications of 13 key members of the transition team, unmediated by Trump lawyers, who at the time were just responding to wholly inadequate document requests from Congress and sharing with Mueller.

Specifically, on August 23, 2017, the FBI sent a letter (i.e., not a subpoena) to career GSA staff requesting copies of the emails, laptops, cell phones, and other materials associated with nine PTT members responsible for national security and policy matters. On August 30, 2017, the FBI sent a letter (again, not a subpoena) to career GSA staff requesting such materials for four additional senior PTT members.

Among others, Mueller would have obtained emails that would have revealed that contrary to the story the White House had told in early January 2017 (which Murray repeats in his story), numerous Transition officials were aware of the emails regarding sanctions. Indeed, Reince Priebus, along with Flynn, Steve Bannon, Sean Spicer, and two other people (Kushner’s inclusion is implied elsewhere in the story), got forwarded an email KT McFarland sent Tom Bossert the day that Mike Flynn made his calls with Kislyak, talking about Flynn’s upcoming call with Kislyak and the need to avoid public comment defending Russia. McFarland also relayed what Obama’s Homeland Security Czar, Lisa Monaco, expected from the call, and the expectation Kislyak would respond with threats.

On Dec. 29, a transition adviser to Mr. Trump, K. T. McFarland, wrote in an email to a colleague that sanctions announced hours before by the Obama administration in retaliation for Russian election meddling were aimed at discrediting Mr. Trump’s victory. The sanctions could also make it much harder for Mr. Trump to ease tensions with Russia, “which has just thrown the U.S.A. election to him,” she wrote in the emails obtained by The Times.

[snip]

McFarland wrote, Mr. Flynn would be speaking with the Russian ambassador, Mr. Kislyak, hours after Mr. Obama’s sanctions were announced.

“Key will be Russia’s response over the next few days,” Ms. McFarland wrote in an email to another transition official, Thomas P. Bossert, now the president’s homeland security adviser.

[snip]

Bossert forwarded Ms. McFarland’s Dec. 29 email exchange about the sanctions to six other Trump advisers, including Mr. Flynn; Reince Priebus, who had been named as chief of staff; Stephen K. Bannon, the senior strategist; and Sean Spicer, who would become the press secretary.

[snip]

“If there is a tit-for-tat escalation Trump will have difficulty improving relations with Russia, which has just thrown U.S.A. election to him,” she wrote.

Mr. Bossert replied by urging all the top advisers to “defend election legitimacy now.”

[snip]

Obama administration officials were expecting a “bellicose” response to the expulsions and sanctions, according to the email exchange between Ms. McFarland and Mr. Bossert. Lisa Monaco, Mr. Obama’s homeland security adviser, had told Mr. Bossert that “the Russians have already responded with strong threats, promising to retaliate,” according to the emails.

Flynn took orders on and relayed his results to McFarland, who was in Mar-a-Lago with Trump. And the transition team, when it complained that Mueller obtained these emails, suggested that they would have — perhaps did, in their compliance with congressional requests — treat this one as privileged. The day after Flynn’s calls, Trump hailed the outcome his National Security Advisor appointee had accomplished on the calls the day before.

In other words, a great deal of evidence suggests that Trump not only knew what went on in those calls, but directed Flynn through McFarland to placate the Russians.

Within days after the call, Flynn briefed other members of the transition team on the call. It is highly unlikely that he lied to people who had been informed in advance of his call that he would be discussing sanctions.

FBI may have believed, in January 2017 and even February 2017, when McGahn wrote his memo, that Flynn lied on his own, to hide the contents of his calls from others in the Administration. But by November 2017, they knew that the most important people in the transition — including Bill Burck’s other clients, Steve Bannon and Reince Priebus — knew well what had transpired in the calls with Kislyak.

None of this, of course, shows up in the tale White House sources are telling Murray. As a result, he tells a story that presents the McGahn narrative as more closely matching the “truth” than the later Sekulow and Dowd letter.

The problems with the McGahn narrative

But neither are true, and so while it’s nifty for Murray to claim this is the biggest yet proof of obstruction (it’s not, compared to the pardons promised), that’s not actually what happened, and Mueller would know that.

For example, the entire story about Flynn lying to Pence — which is something Sekulow and Dowd simply ignored in their January letter — is probably not true; and if it is, key White House staffers, including at least two of Burck’s clients, were lying to the nominal Transition head and were parties to Flynn’s lie.

On January 12, 2017, Washington Post columnist David Ignatius disclosed that US intelligence agencies had intercepted the phone calls, although Ignatius’s sources did not disclose the specifics of what either Flynn or Kislyak said. Vice President Mike Pence was immediately enlisted to defend Flynn. Flynn assured Pence that he never spoke to Kislyak about sanctions, whereupon Pence repeated those denials on Fox News and CBS’s Face the Nation. Flynn was then also questioned by the FBI about the phone calls, but once again denied that he had ever spoken to Kislyak about sanctions.

Similarly, the notion that Priebus would have to ask Flynn what he said to Kislyak on February 8 (when he had known it would include sanctions before Flynn made the call) is nonsense.

 On February 8, 2017, The Washington Post contacted the White House to say that it was about to publish a story citing no less than nine sources that Flynn had indeed spoken to Kislyak about sanctions. In attempting to formulate a response, Priebus, McGahn, and Eisenberg questioned Flynn. Confronted with the information that there were intercepts showing exactly what was said between him and Kislyak, Flynn’s story broke down. Instead of denying that he had spoken to Kislyak about sanctions, the timeline said, Flynn’s “recollection was inconclusive.” Flynn “either was not sure whether he discussed sanctions, or did not remember doing so,” the McGahn timeline says.

Both Priebus and Flynn would know better. It’s possible Flynn and Priebus were putting on a show for the lawyers (but if so, that show would likely be just for John Eisenberg, because otherwise Burck would have a major conflict). It’s more likely the McGahn narrative was an attempt to make the internal story consistent with the public claims that only Flynn knew of the content of the calls.

One of the other key pieces of bullshit in the McGahn narrative is the claim that there was any doubt whether Flynn could be fired when Yates first presented her concerns to McGahn.

The McGahn timeline recounts: “Part of [our] concern was a recognition by McGahn that it was unclear from the meeting with Yates whether or not an action could be taken without jeopardizing an ongoing investigation.”

She clearly suggested (and would be backed by Mary McCord) that’s what they should do.

Finally, there’s something else missing from this narrative: that Flynn had spent the weekend between this alleged grilling from Priebus and McGahn in Mar-a-Lago with the President, sitting in on yet more sensitive meetings (in that case, with Shinzo Abe).

McGahn’s narrative may offer an explanation for why Trump fired Flynn, even if it doesn’t accord with known facts. But the entire narrative fails to explain why, if all the players knew and did what they said, Trump didn’t fire Flynn as soon as Yates suggested he should, or after they reviewed the intercepts (showing what they knew the conversation entailed), or after Priebus and McGahn grilled Flynn.

Which is not to say that McGahn’s letter isn’t proof of obstruction (albeit far less damning than Trump’s offers of pardons). It’s just an entirely different model of obstruction, and Murray’s story may be yet more PR from Don McGahn to make sure he’s on the right side of any obstruction charges.

The Mueller Investigation: What Happens on September 7?

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I hesitate to write this post, partly because I think it’s a good idea to dismiss every single thing that Rudy Giuliani says, and partly because we’ve all learned that it is sheer folly to pretend anyone can anticipate what Mueller will do, much less when.

Nevertheless, I wanted to address questions about what might happen in the next two weeks, as we approach the 60-day mark before midterm elections.

Rudy G is wrong about everything

The aforementioned Rudy G, who has been saying that Mueller has to shut down his entire investigation (or even finish up and go home) on September 1 on account of DOJ’s policy against overt investigative action close to an election.

As I said, the policy only prohibits overt acts, and only 60 days before the election. Mueller might argue that it’s entirely irrelevant, given that none of his known targets (save, perhaps, Dana Rohrabacher) are on the ballot. But enough credible journalists have suggested that DOJ is taking this deadline seriously with respect to Trump’s associates (including Michael Cohen in SDNY, where DOJ actually leaks), that it’s probably correct he’ll avoid overt acts in the 60 days before the November 6 election.

But that timeline starts on September 7, not September 1.

Paul Manafort’s stall

One thing we know will dominate the press in that pre-election period is Manafort’s DC trial, scheduled to start on September 17.

Unless he flips.

While I still don’t think he will flip, he is stalling in both his trials. In EDVA, he asked for and got a 30-day deadline to move for an acquittal or mistrial. He may have done so to provide extra time to consider the complaints raised by one juror that others were deliberating before they should have, which Manafort had asked for a mistrial over. If that’s right, juror Paula Duncan’s comments, describing the one holdout and explaining that even she, a Trump supporter, found the case a slam dunk, may persuade Manafort that challenging this trial won’t bring about any other result and may mean he gets convicted on the remaining 10 counts.

In any case, however, by getting 30 days to decide, Manafort moved the deadline from (by my math) September 3 to September 21, when he’s scheduled to be deep into the DC case (and therefore too busy to submit such a motion). It did, however, move the decision date past that September 7 date.

Speaking of the DC case, after getting an extension on the pre-trial statement in that case, Manafort basically punted on many of the substantive issues, effectively saying he’ll provide the required input later.

He may not be flipping, but he’s not prepared to start this trial.

Is it Roger Stone’s time in the barrel?

The big question, for me, is whether Mueller has finished his six month effort to put together a Roger Stone indictment.

Tantalizingly, back on August 10, Mueller scheduled Randy Credico to explain to the grand jury how Stone threatened him about his testimony. That appearance is for September 7. Given how far out Mueller scheduled this, I wondered at the time whether Credico was being slated to put the finishing touches on a Stone indictment.

What might prevent Mueller from finalizing Stone’s indictment, however, is Stone associate Andrew Miller, from whom Mueller has been trying to get testimony since May 9. Miller is challenging his grand jury subpoena; he’s due to submit his opening brief in his appeal on September 7. That might mean that Mueller has to wait. But two filings (District, Circuit), the docket in his subpoena challenge, and this CNN report may suggest they can move forward without first getting Miller’s testimony.

Both the Circuit document and CNN provide more details about a May 9 interview with two FBI Agents, with no attorney present (no offense to Miller, but what the fuck kind of self-described libertarian, much less one in Roger Stone’s immediate orbit, agrees to an FBI interview without a lawyer present)?

Mr. Miller was first interviewed by two agents of the Federal Bureau of Investigation who visited him unannounced on or about May 9, 2018, in Saint Louis, MO, where he resides. He was cooperative, answering all their questions for approximately two hours, and at the conclusion of the interview, was handed a subpoena to produce documents and testify as a witness before the grand jury.

CNN describes that’s what poses a perjury concern for Miller with regards to his testimony before the grand jury because of that original interview.

Miller’s case is complicated by the fact that he initially cooperated with the special counsel’s investigation. When FBI agents first approached him in May, he spoke with them at his home in St. Louis for two hours without an attorney.

[snip]

Dearn said in an interview that she was just being “carefully paranoid” and protecting her client from accidentally committing perjury if he testifies and contradicts something he told investigators back in May without a lawyer present.

As the District filing seems to suggest, Miller got not one but two subpoenas (???), just one of which called for document production:

Mr. Miller was served with two subpoenas dated June 5, 2018, both requiring his appearance before the Grand Jury on June 8, but only one of which required that he search and bring with him the documents described in the Attachment to one of the subpoenas. See Exhibits 1 and 2. After a filing a motion to quash on grounds not raised herein, this Court issued a Minute Order on June 18 requiring Mr. Miller’s appearance before the Grand Jury on June 29 and to produce the documents requested as limited by agreement of the parties by June 25.

Miller turned over 100MB of documents on June 25, but shortly thereafter, Mueller prosecutor Aaron Zelinsky asked for more.

Mr. Miller has since complied with that part of the order producing voluminous documents in a file that is 100MB in size to government counsel on Monday, June 25. In her cover email to government counsel, Aaron Zelinsky, Miller’s counsel stated in pertinent part: “Mr. Miller does not waive and hereby preserves all rights he has to object to the subpoena requiring his appearance before the Grand Jury this Friday…and from any continuing duty or obligation to supply additional documents subject to the subpoena.” See Exhibit 6. Nevertheless, Mr. Zelinsky recently informed counsel that he is not satisfied with this production and is unreasonably requesting additional documents from Mr. Miller.

CNN reported that those documents pertained to WikiLeaks and Guccifer 2.0.

After a protracted back and forth between Dearn and Mueller’s team, Miller handed over a tranche of documents. In turn, the government had agreed to limit its search to certain terms such as Stone, WikiLeaks, Julian Assange, Guccifer 2.0, DCLeaks and the Democratic National Committee, according to court filings and interview with attorneys.

So at the very least, Mueller has 100MB of documents that relate to Wikileaks and Guccifer 2.0 (which raises real questions about how Miller can say he knows nothing about the topic), and 2 hours of testimony that Miller may not want to tell the grand jury now that he has lawyers who might help him avoid doing so.

Meanwhile, there are some filings from the end of his District Court docket.

The Circuit document mostly explains what filings 33, 34, 35, and 37 are (though doesn’t explain why Mueller refused to stipulate that Miller be held in contempt): they’re the process by which he was held in contempt and therefore legally positioned to appeal.

6. Because Mr. Miller desired to appeal the order denying his motion, ensuing discussions with Special Counsel to stipulate that Mr. Miller be held in contempt for not appearing on the upcoming appearance before the grand jury on August 10, 2018, and to stay the contempt pending appeal did not succeed.

7. Consequently, two days before his appearance, on the evening of August 8, 2018, counsel emailed government counsel and Judge Howell’s clerk (and on the following morning of August 9, hand-filed with the clerk’s office), a Motion By Witness Andrew Miller To Be Held In Civil Contempt For Refusing To Testify Before The Grand Jury And To Stay Such Order To Permit Him To Appeal It To The U.S. Court Of Appeals For The District Of Columbia Circuit and citing authorities for granting a stay of contempt. ECF No. 33. The government served and a response on the evening of August 9 ( ECF. No. 35) and Mr. Miller served a reply early morning on August 10. ECF No. 37.

8. On August 10, undersigned counsel for Mr. Miller met government counsel at 9:00 a.m. as previously agreed to at the entrance to the grand jury offices, and was advised by government counsel that a motion to show cause was filed shortly before 9:00 a.m. ECF No. 34.

9. Approximately two hours later, the court held the show cause hearing, with the Mr. Miller and local counsel appearing telephonically from Saint Louis, MO.

10. The court granted Mr. Miller’s and the government’s request that he be held in contempt and stayed the order if the notice of appeal were filed by 9:00 a.m. August 14, 2018. ECF No. 36.

That doesn’t explain what Document 38 is, to which Miller didn’t respond, and in response to which Beryl Howell issued an order.

CNN’s description of Miller’s attorney’s concern seems to split his testimony into two topics: Guccifer and Wikileaks, and Stone’s PACs. Miller’s only worried about legal jeopardy in the latter of those two. (For some details on what the legal exposure might pertain to, see this post.)

[Alicia] Dearn was adamant that Miller not be forced to testify to the grand jury about one topic in specific: Stone. She asked that her client be granted immunity, “otherwise he’s going to have to take the Fifth Amendment,” she said in a court hearing in June.

Aaron Zelinsky, one of Mueller’s prosecutors, noted Miller’s lawyer was making two seemingly contradictory arguments: “On the one hand, that the witness knows nothing, has nothing to hide, and has participated in no illegal activity. On the other hand, that there is a Fifth Amendment concern there.”

In the hearing, Dearn said she was concerned Miller would be asked about his finances and transactions related to political action committees he worked on with Stone.

Miller “had absolutely no communication with anybody from Russia or with Guccifer or WikiLeaks,” Dearn said in an interview.

By process of elimination, the only thing she believes her client could get caught up on are questions about his financial entanglements with Stone and his super PAC.

The Circuit document concedes that Miller may be the subject — but not target — of this grand jury investigation.

12. Lest there be any misunderstanding, Mr. Miller was not a “target of grand jury subpoenas” (Concord Mot. at 1), but rather a fact witness or at most a subject of the grand jury; nor was he a “recalcitrant witness.” Id. at 13. As the foregoing background demonstrates, Mr. Miller has been a cooperative witness in this proceeding.

It would be really weird if Miller really did get two subpoenas, and that’s not consistent with the Circuit document. So it may be there were two topics or crimes described in the subpoena: conspiring with Russia, and running a corrupt PAC. And if Miller’s only personally legally exposed in the latter of those, then it’s possible Mueller would treat these differently.

So it’s possible Mueller got what they need to move forward on the main conspiracy case against Stone, while it has to wait on Miller’s own involvement in Stone’s corrupt PACs until after the DC Circuit reviews things.

Other September deadlines

The September 7 timing is interesting for two other reasons. First, that’s also the day that George Papadopoulos — whose plea deal covers his lies and obstuction but not any conspiracy case — is due to be sentenced.

Just 10 days later Mike Flynn (whose plea deal was also limited to his lies) has a status report due, just a 24-day extension off his previous one. That timing suggests he’s about done with his cooperation. Perhaps that shortened time frame is only due to his team’s push to get him back earning money to pay for his lawyers again. Perhaps there’s some other explanation.

Timeline

August 24: Revised deadline for Manafort pre-trial statement — Manafort punted on many issues.

August 28: Hearing in DC Manafort case.

September 3: Current deadline for motions in EDVA Manafort trial

September 4: Brett Kavanaugh confirmation hearings scheduled to begin (projected to last 3-4 days)

September 7: Randy Credico scheduled to testify before grand jury; George Papadopoulos scheduled for sentencing; Andrew Miller brief due before DC Circuit; 60 days before November 6 mid-terms

September 17: DC Manafort trial starts, status report due in Mike Flynn case

September 21: Requested deadline for motions in EDVA Manafort trial

September 28: Government brief due in DC Circuit appeal of Andrew Miller subpoena

October 9: Miller reply due in DC Circuit

November 6: Mid-term election

November 10: Status report due in Rick Gates case

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Like Cohen, Paul Manafort is a tax cheat

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

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

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

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

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

Things are picking up steam.

It Is False to Claim There Was No Follow-Up to the June 9 Meeting

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On July 15, 2017 — a week after the June 9 meeting was reported in a NYT story publishing the first of numerous White House statements attempting to explain the meeting — Rhona Graff sent Rob Goldstone an email (PDF 44). With only a garbled (perhaps autocorrected) explanation, she forwarded back to Goldstone an email Goldstone himself had sent her the previous November, attaching some talking points from Natalia Veselnitskaya about Bill Browder and the Magnitsky sanctions (for a copy of the talking points, see PDF 37 ff).

A week after the White House had first issued a statement saying, in part, “there was no follow up” on the June 9 meeting, Trump’s Executive Assistant was sharing with Goldstone a paper trail showing that there had been.

Rudy gets all the facts about the June 9 meeting wrong, again

That’s an important detail that gets missed every single time the punditocracy deals with attempts by Rudy Giuliani or his client to spin the June 9 meeting, as has happened in the wake of this TV appearance by Rudy on Meet the Press.

RUDY GIULIANI:

Well, because the meeting was originally for the purpose of getting information about, about Clinton. The meeting turned into a meeting —

CHUCK TODD:

Which in itself it’s attempted collusion. I understand —

RUDY GIULIANI:

No it’s not.

CHUCK TODD:

You just said it. The meeting was intended to get dirt on Hillary Clinton from a criminal lawyer.

(OVERTALK)

RUDY GIULIANI:

No, it wasn’t. No, no.

CHUCK TODD:

That was the intention of the meeting, you just said it.

RUDY GIULIANI:

That was the original intention of the meeting. It turned out to be a meeting about another subject and it was not pursued at all. And, of course, any meeting with regard to getting information on your opponent is something any candidate’s staff would take. If someone said, I have information about your opponent, you would take that meeting. If it happens to be a person with a Russian —

CHUCK TODD:

From the Russian government?

RUDY GIULIANI:

She didn’t represent the Russian government, she’s a private citizen. I don’t even know if they knew she was Russian at the time. All they had was her name.

CHUCK TODD:

They didn’t know she was Russian, I think they knew she was Russian, but ok.

RUDY GIULIANI:

Well, they knew it when they met with her, not when they set up the meeting. You, you told me, you, you asked me, you know, did they show an intention to do anything with Russians? Well, all they knew is that a woman with a Russian name wanted to meet with them. They didn’t know she was a representative of the Russian government and indeed, she’s not a representative of the Russian government. So, this is much ado about nothing. Plus, the President of the United States wasn’t at that meeting. He didn’t know about that meeting. He found out about it after and by the time he found out about it, it was nothing. So, I mean —

Don Jr. took a meeting expecting and accepting dirt from the Russian government

Numerous people have noted that Rudy was totally wrong about the terms on which Don Jr took the meeting in the first place. Rob Goldstone told Don Jr his boss, Aras Agalarov, would,

provide the Trump campaign with some official documents and information that would incriminate Hillary and her dealings with Russia and would be very useful to your father.

This is obviously very high level and sensitive information but is part of Russia and its government’s support for Mr. Trump.

Whether or not that’s what Don Jr got at the meeting (or a week later, when Guccifer 2.0 started releasing stolen documents and information), it is nevertheless the case that Don Jr accepted a meeting at which he expected to be offered dirt on Hillary that was “part of Russia and its government’s support for Mr. Trump.” Indeed, Don Jr specifically said he’d be willing to wait to receive that dirt until later in the summer.

If it’s what you say I love it especially later in the summer

The email exchange, by itself, goes a long way towards meeting the terms of a conspiracy, willfully engaging in an agreement to break the law (which includes both accepting things of value from a foreign government and, given events later in the summer, possibly conspiracy to hack a computer).

Remember: to be charged with conspiracy, the conspiracy doesn’t have to be successful. So even ignoring the “documents and information” the Russians started releasing a week later, that “it turned out to be a meeting about another subject,” as Rudy excuses, doesn’t help Jr. He took a meeting to obtain dirt.

Rudy is wrong about follow-up to the meeting as well

So the rest of that that sentence — “and it was not pursued at all” — actually isn’t necessary to an analysis of a conspiracy, because overt acts had already taken place. Still, on that point, too, Rudy is wrong.

The record shows that those behind the meeting did pursue the “it” in question — sanctions relief — fairly aggressively after the election, with some inconclusive cooperation from the Trump Administration. And even after the record on that pursuit goes dark, Russia as a state continued to pursue sanctions relief — indeed, continues even today, most recently by buttering up a series of Republican Senators visiting Moscow to lobby for it.

As I lay out below, Aras Agalarov’s US Vice President, Ike Kaveladze, pushed Goldstone to set up a second meeting, even if with lower level people. As far as we know, that meeting never got scheduled.

But even as the Agalorov effort to obtain sanctions relief fizzled, a more formal Russian effort started, then moved to a back channel.

The most important moment in any follow-up on the June 9 meeting request for sanctions relief came in the December 29, 2016 phones calls between Mike Flynn and Sergei Kislyak about sanctions, a discussion in which Flynn took close directions from KT McFarland, who was with Trump at Mar-a-Lago. Those are the phone calls Flynn lied to the FBI about, in spite of broad knowledge of the calls among transition aides. Those are the phone calls about which he got a plea deal to cooperate with the Mueller team.

Don Jr probably promised the Trumps would revisit sanctions after the election

According to most participants in the meeting who offered testimony to SJC, the Russians were right to expect a follow up discussion on Magnitsky sanctions. In fact, all the participants representing the Russian side save Goldstone (including Anatoli Samochornov, who is the only witness on either side not to have compared notes with at least some of the others before testifying) remembered Don Jr ending the June 9 meeting by saying they’d revisit the issue if or when his father won.

Natalia Veselnitskaya said Don Jr said they’d revisit the topic.

Mr. Trump, Jr. politely wound up the meeting with meaningless phrases about somewhat as follows: can do nothing about it, “if’ or “when” we come to power, we may return to this strange and confusing story.

Ike Kaveladze said that Don Jr said they might revisit the issue if his father won.

There was no request, but as I said, it was a suggestion that if Trump campaign wins, they might get back to the Magnitsky Act topic in the future.

Rinat Akhmetshin said that Don Jr said they would revisit Magnitsky when they won.

A. I don’t remember exact words which were said, but I remember at the end, Donald, Jr., said, you know, “Come back see us again when we win.” Not “if we win,” but “when we win.” And I kind of thought to myself like, “Yeah, right.” But it happened, so — but that’s something, see, he’s very kind of positive about, “When we win, come back and see us again.” Something to that effect, I guess.

Anatoli Samochornov, Veselnitskaya’s translator, who is the most independent witness and the only one who didn’t compare his story with others, said that Don Jr said they would revisit the issue if Trump won.

A. Like I described, I remember, not verbatim, the closing that Mr. Donald Trump, Jr., provided, but that’s all that I recall being said from the other side.

MR. PRIVOR: That closing being that Donald Trump, Jr., suggested —

MR. SAMOCHORNOV: If or when yes, and I do not remember if or when, but if or when my father becomes President, we will revisit this issue.

Just two people remember it differently. In an answer that, in some respects, exactly tracks statements that were massaged elsewhere by Trump’s lawyers, Rob Goldstone said Don Jr told Veselnitskaya to raise it with Obama.

And he stopped this in its tracks and said, with respect, I suggest that you address your — what seemed very valid concerns but to the Obama administration because they actually are in power. My father is a private citizen and, as such, it has no validity, of what you’re saying. Thank you very much for coming. I appreciate all your time. You know, we have a very busy schedule, and thank you.

And Don Jr himself remembers he ended the meeting by saying his father, a private citizen, couldn’t do anything about this.

I proceeded to quickly and politely end the meeting by telling Ms. Veselnitskaya that because my father was a private citizen there did not seem to be any point for having this discussion.

Paul Manafort would have provided testimony on this point to the Senate Intelligence Committee, but stood up SJC after the raid on his condo the morning after he testified. And Jared left the room before any of this transpired.

In any case, given their impression that Don Jr, in a meeting offering dirt on Hillary, had committed to revisiting Magnitsky sanctions if his pop won the election, the Russian side of the meeting did follow-up after Trump won. And so they did.

Agalarov’s team spent ten days in November trying to get Veselnitskaya a follow-up meeting

Ten days after the election, November 18, Ike Kaveladze reported to his boss, Aras, that Rob Goldstone had already reached out to the Trump people (Kaveladze doesn’t say to whom) to follow up.

Q. Could you please take a look at the entry for November 18, 2016, at 17:45. This appears to  be a message from you to Aras Agalarov. Mr. Kaveladze, could you please translate the content of that message?

A. “Hello. Rob spoke with Trump people. They asked a short synopsis of what is she going to be discussing. Last time she produced a lot of emotions and less facts. Most of the people who took part in that meeting are moving to Washington, D. C. Some of them already fired. When they receive synopsis, they will decide who to send to that meeting.”

Goldstone apparently asked for a short synopsis of the topic presented at the meeting — what would turn out to be the Magnitsky Act — so the Trump team could figure out who should attend a follow-up meeting.

On November 23, Kaveladze sent Goldstone that synopsis.

Less than an hour later, Goldstone wrote back and noted that the synopsis was largely what Veselnitskaya had presented in June.

When Kaveladze pressed for a meeting, Goldstone got squirrelly, even while saying he’d speak to both Don [Jr] and Rhona after sending a synopsis.

When Kaveladze followed up on November 27, Goldstone claimed he had sent materials the week before. Kaveladze suggested that this meeting could happen on the assistant or lawyer level — something both Kaveladze and Goldstone had expressed regret hadn’t happened during the summer.

The next time Kaveladze followed up, Goldstone said that Emin might have to call directly (which Kaveladze took to mean making a call to Don Jr).

It appears only after that did Goldstone forward the synopsis to Rhona Graff, above. After which he told Kaveladze that he had “again” asked about a low level meeting.

After that follow-up call, Graff forwarded Goldstone’s email to Steve Bannon (who early this year argued the June 9 meeting should have been held with lawyers, not the top campaign officials, thought without objecting to the exchange in principle), explaining that Trump knew Aras well, but that she wasn’t “sure how to proceed, if at all.”

During this whole exchange, Kaveladze was juggling messages with Veselnitskaya who was in New York on Prevezon business and beginning to panic based on news reports that Trump would keep Preet Bharara on (Kaveladze would continue handling her throughout December, until handing her off to Agalarov attorney Scott Balber in January).

On November 29, he explained to Vesenitskaya that,

Robert says that logistics of organizations [sic] of meetings with Team Trump now would be difficult and lengthy. I’ve landed in Moscow. I will discuss this situation … with my boss.

Kaveladze did not explain from whom Goldstone learned that, or if it included another phone call. He had also told Goldstone he was in Moscow if he wanted to speak directly. As Kaveladze told SJC, he discusses important things with his boss face-to-face because,

Agalarov is based in Russia, and I’m pretty sure, you know, his phone is being, you know, monitored.

And that’s where, as far as we know, the Agalarov effort to follow up on the June 9 meeting, ended, with Kaveladze explaining things face-to-face to his boss. Which would make it follow-up, just unsuccessful follow-up.

At least two communications are unaccounted for

One key question about this follow-up is the role that Don Jr had in it.

None of these texts suggesting Goldstone had phone conversations with someone, probably Don Jr, as early as November 18 were turned over to SJC before Don Jr testified. Probably as a result, he was asked only about the November 28 email from Goldstone to Graff. He claims he was not aware of any part of the follow-up.

Q. It appears Mr. Goldstone continued his anti-Magnitsky effort beyond your June 9, 2016 meeting. Other than this e-mail, were you aware of any other effort he made on this issue after your meeting?

A. Not that I recall, no.

For his part, Goldstone claims he didn’t send anything before that November 28 email, in spite of telling Kaveladze, back in November 2016, that he had.

Q. So in your November 27th message to Mr. Kaveladze, you said you forwarded the information last week. The last email was an email sent on November 28th, the day after this message with Kaveladze, forwarding the document to Ms. Graff. Had you, in fact, forwarded the document the week before your November 27th message with Kaveladze?

A. I don’t recall, but because I know myself, and I know how I write , I would imagine that the minute he reminded me of it in here, I forwarded it to Rhona, probably the next day. So I don’t recall one before then, no.

Q. All right. Prior to sending that email to Ms. Graff on November 28th, 2016, did you speak with Ms. Graff or any other Trump associates about a second meeting with Veselnitskaya?

A. I don’t believe so.

Nevertheless, there are several known or reported communications unaccounted for: the one Goldstone had before November 18, any email he had the week before November 28 with the synopsis, and any follow-up call via which Goldstone would conclude that the logistics of organizing a meeting with Trump people would be difficult during the transition.

Mueller, of course, will know whether Goldstone and Don Jr communicated directly, and if so when. So he will have a sense of whether Don Jr and Goldstone’s claims, which seem to contradict contemporaneous records, are true or not.

The Russian side concludes there is no communication channel

The problem, at least as the Russian side saw it (possibly based off what Goldstone had reported back), was those logistics: a channel of communications. The next day, December 1 at 11:49AM, Kaveladze texted again (Veselnitskaya was by this point frantic because Trump had met with Preet Bharara, with her even discussing who Trump might, “Wet and not to wet” with respect to the US Attorney, which Kaveladze translated as “crush”), explaining that Aras planned on meeting with Trump to restore communications.

Unfortunately, we don’t have communication. My boss planned to meet with him. We will send a formal request. Hopefully after the meeting we will keep communication.

As far as we know, that meeting never happened. Though the Agalarov camp and the Trump camp would resume intense conversations in June 2017, as the Trump Organization began to try to understand the legal liability posed by the meeting. Trump’s lawyers would speak directly with both Kaveladze and Goldstone before Agalarov’s lawyer, Scott Balber, took over the discussions (indeed, he remained the key architect of the narrative from that point forward, probably for all sides). Those are the conversations that would lead, on July 15, Graff to remind Goldstone that he had emailed her to follow up on the June 9 meeting.

So while there was clearly follow-up, there was not a clear resolution to the June 9 meeting in which Veselnitskaya got Trump to adopt her preferred policy.

Other Russians pursue a communication channel

Unless the resolution moved to a different path.

As it happens (this may be a coincidence, or may be a sign of greater coordination that the Trump people claim they’re capable of), later on the same day after Kaveladze said his boss would seek to restore a channel of communication with Trump, Jared hosted a meeting in Don Jr’s office with Sergei Kislyak, attended by Mike Flynn. Even according to Jared’s prepared statement, that meeting was about establishing communication channels to Russia.

The meeting occurred in Trump Tower where we had our transition office, and lasted twenty-thirty minutes. Lt. General Michael Flynn (Ret.), who became the President’s National Security Advisor, also attended. During the meeting, after pleasantries were exchanged, as I had done in many of the meetings I had and would have with foreign officials, I stated our desire for a fresh start in relations. Also, as I had done in other meetings with foreign officials, I asked Ambassador Kislyak if he would identify the best person (whether the Ambassador or someone else) with whom to have direct discussions and who had contact with his President. The fact that I was asking about ways to start a dialogue after Election Day should of course be viewed as strong evidence that I was not aware of one that existed before Election Day.

The Ambassador expressed similar sentiments about relations, and then said he especially wanted to address US. policy in Syria, and that he wanted to convey information from what he called his “generals.” He said he wanted to provide information that would help inform the new administration. He said the generals could not easily come to the U.S. to convey this information and he asked if there was a secure line in the transition office to conduct a conversation. General Flynn or I explained that there were no such lines. I believed developing a thoughtful approach on Syria was a very high priority given the ongoing humanitarian crisis, and I asked if they had an existing communications channel at his embassy we could use where they would be comfortable transmitting the information they wanted to relay to General Flynn. The Ambassador said that would not be possible and so we all agreed that we would receive this information after the Inauguration. [emphasis original]

Don Jr, in his SJC testimony, is the one who revealed that this meeting took place in his own office (and therefore outside of transition space that might be more closely monitored). But he claims he didn’t attend because he was sweaty from a workout; he also claims he didn’t know about it beforehand.

Q. You mentioned during the conversation with my colleagues that you had become aware of a meeting or meetings with Ambassador Kislyak. Can you just explain like what meetings did you become aware of? When did they take place?

A. I don’t remember the exact timing of when they took place. I believe it was after we had already secured — meaning after the election, but I could be mistaken. The only reason I’m aware of it is because it occurred in my office. I came back from the gym and they were in there.

Q. So when you say after the election, you mean after November 8, 2016?

A. I believe so.

Q. Was it a meeting in December of 2016?

A. That would fit the description, yes, I believe so.

Q. So it was a meeting in Trump Tower?

A. Yes.

Q. In your office but you hadn’t known about it beforehand?

A. Correct.

Q. Do you know why they used your office?

A. It was open, I was at the gym.

Q. And who was in that meeting?

A. I believe it was Jared Kushner, the Ambassador, maybe Flynn, but I don’t remember.

Q. Anyone else, to the best of your recollection?

A. No, not that I recall.

Q. Was the meeting still ongoing when you returned?

A. I believe it was, yes.

Q. Did you go in and join the meeting?

A. No, I did not.

Q. Why not?

A. Because I didn’t know what it was about and I was sweaty from the gym.

Q. Did you ask Mr. Kushner or Lieutenant General Flynn about the meeting after?

A. No, I don’t think I did.

So Don Jr doesn’t remember any calls with Goldstone about following up on the June 9 meeting (though they likely occurred), and he says a meeting with the Russian Ambassador just happened to get scheduled into his workout window on the same day his liaison was seeking a new channel of communications.

Mind you, the subject of this attempt to set up a back channel, per Jared, would be cooperating on Syria, something I learned — from someone who played a significant role in the Russian election attack — that Trump was working on within 15 hours of the close of polls in Hawaii the day after the election.

But within short order, these very same players would shift focus of back channel communications to sanctions relief. Within weeks, Kislyak had set up a meeting with the head of a sanctioned bank, Sergey Gorkov, to meet with Jared. And shortly after that, Flynn would make a series of calls to Kislyak about delaying any response to Obama’s December 28 sanctions. This, in turn, would lead to a meeting involving Erik Prince and another sanctioned bank in Seychelles leading up to the inauguration.

Natalia Veselnitskaya never got her second meeting to pitch the end to Magnitsky sanctions, but Sergey Gorkov got a meeting.

The stakes of dissociating the June 9 meeting from any sanctions relief

By this point, Rudy’s credibility is so shot that when he makes a claim, we should assume that it (like any claim his client makes) is suspect, if not an outright lie.

As I noted above, whether or not there was follow-up on the June 9 meeting doesn’t really change whether Don Jr gleefully accepted a meeting expecting dirt from the Russian government on Hillary Clinton. He did. But in Rudy’s dodgy explanations for why the June 9 meeting isn’t criminal, he relies heavily on his claim — a claim that the Trump side has maintained since a week before Rhona Graff found the email that proved it wasn’t true — that there was no follow-up on the meeting.

But there was.

At a minimum, there were several weeks of follow-up on the Russian side, understandably trying to hold Don Jr to (what they remember as) his offer to revisit the issue of sanctions after the election. As part of that follow-up, there are hints that Don Jr was in the loop, even if both he and Goldstone can’t remember that happening.

The follow-up led by the Agalarovs was, as far as the public record indicates, inconclusive. The Agalarovs lost their communication channel (perhaps as Don Jr got sidelined), and so never did get their follow-up meeting.

But on the same day Trump’s long-time handler, Aras Agalarov, said he’d seek out a new channel of communications, Jared Kushner and Mike Flynn were sitting in Don Jr’s office, attempting to establish a back channel of communication, and solidifying a relationship that would, less than a month later, involve yet another overt act regarding sanctions relief. And that overt act — persuading Sergey Kislyak to defer any response to Obama’s new sanctions — was closely directed from Mar-a-Lago.

Update: Looks like Rudy keeps issuing bogus exonerations for Jr because Mueller is closing in on him.

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

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

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

The NYT’s Latest McGahnObstructAPalooza: Sometimes “Cooperation” Is Just Cover Your Ass

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By far the most telling passage in this 2,225+ word story laying out Don McGahn’s “cooperation” with the Mueller inquiry is this passage:

Though he was a senior campaign aide, it is not clear whether Mr. Mueller’s investigators have questioned Mr. McGahn about whether Trump associates coordinated with Russia’s effort to influence the election.

Over two thousand words and over a dozen sources, and Maggie and Mike never get around to explaining whether Don McGahn has any exposure in or provided testimony for the investigation in chief, the conspiracy with Russia to win the election.

Instead, along the way, Maggie and Mike repeat some version of “obstruction” fourteen times –obstruct obstruct obstruct obstruct obstruct obstruct obstruct obstruct obstruct obstruct obstruct obstruct obstruct obstruct — perpetuating the grossly misleading myth, once again, that Trump and his cronies are only at risk for obstruction charges. They do so even while describing a lawyer who represents three high placed witnesses in the case (along with McGahn, William Burck represents Reince Priebus and Steve Bannon) opining that the President’s legal exposure makes cooperation “insane.”

Mr. Burck has explained to others that he told White House advisers that they did not appreciate the president’s legal exposure and that it was “insane” that Mr. Trump did not fight a McGahn interview in court.

Along the way, the story engages in other kinds of spin, all of which happens to make Don McGahn look far better than he should.

White House Counsels have limited attorney-client privilege

A big part of this tale is premised on the notion that McGahn cooperated when he otherwise might not have had to, based on claims like this:

For a lawyer to share so much with investigators scrutinizing his client is unusual. Lawyers are rarely so open with investigators, not only because they are advocating on behalf of their clients but also because their conversations with clients are potentially shielded by attorney-client privilege, and in the case of presidents, executive privilege.

For a story that discusses John Dean explicitly, this claim is sheer malpractice. White House Counsels work for us, not for the President as private citizen, and as such, have limited attorney-client privilege, something that has now been litigated.

The story admits McGahn might have legal exposure, but doesn’t explain what that is

Much of the rest of the story is spun around an admittedly interesting tension, John Dowd’s decision to “cooperate” with the Mueller probe, including to make no executive privilege claims over McGahn’s testimony (which he could have done). As the story makes out, that led McGahn and the lawyer he hired because he thought he might have some criminal exposure, Burck, to worry about his criminal exposure.

Mr. McGahn and his lawyer, William A. Burck, could not understand why Mr. Trump was so willing to allow Mr. McGahn to speak freely to the special counsel and feared Mr. Trump was setting up Mr. McGahn to take the blame for any possible illegal acts of obstruction, according to people close to him. So he and Mr. Burck devised their own strategy to do as much as possible to cooperate with Mr. Mueller to demonstrate that Mr. McGahn did nothing wrong.

And in a piece claiming McGahn worried Trump would blame him for any legally sketchy behavior, this paragraph shows McGahn instead blaming Trump.

In fact, Mr. McGahn laid out how Mr. Trump tried to ensure control of the investigation, giving investigators a mix of information both potentially damaging and favorable to the president. Mr. McGahn cautioned to investigators that he never saw Mr. Trump go beyond his legal authorities, though the limits of executive power are murky.

Yet the NYT doesn’t seem to think about why McGahn and the three-witness lawyer alarmed at the President’s legal exposure might also think he, McGahn, had legal exposure.

The problems with Don McGahn’s Flynn story

One bit of legal exposure that the NYT has provided evidence for — but confused as yet more actual legal discussion — is in McGahn’s role in the Mike Flynn firing (which the NYT inexplicably always treats as obstruction of justice).

Mr. McGahn gave to Mr. Mueller’s investigators, the people said, a sense of the president’s mind-set in the days leading to the firing of Mr. Comey; how the White House handled the firing of the former national security adviser, Michael T. Flynn; and how Mr. Trump repeatedly berated Mr. Sessions, tried to get him to assert control over the investigation and threatened to fire him.

As I have noted, the White House materials published by the NYT actually show that McGahn wrote an obviously misleading explanation for the Flynn firing, one that suppressed transition period emails that would undermine all the claims about Flynn deciding to lie about his discussion with Sergi Kislyak, and one which would conflict in material ways with the contemporaneous reports of Jim Comey, Sally Yates, and a number of other DOJ witnesses.

  • Don McGahn wrote a memo on the lead-up to Flynn’s firing two days after the firing, and one day after Trump’s “let it go” conversation with Jim Comey. It appears to be inconsistent with Transition materials, particularly an email showing (among other things) that Reince Priebus knew in real time what Flynn told Kislyak on December 29. Firing Comey would have been an effort to prevent FBI from discovering those transition period communications.

[snip]

Yates’ public testimony (to which Mary McCord would also be a witness) adds several elements to McGahn’s: she said the sanction discussion itself was wrong (elsewhere HPSCI has claimed she raised Logan Act violations). She talked about concerns about Pence’s credibility (remember–the White House doesn’t address getting Pence’s side of this story at all). And she claims she specifically suggested the White House should take action — that is, fire Flynn.

Finally, note that this passage cites an email chain dated January 12 — what was treated as campaign production with the Bates stamp “DJTJFP.” This is the only time the letter cites that production; they don’t, for example, cite the email chains referenced in Flynn’s plea that make it clear how hard it would have been to forget the Kislyak call because he was basically acting on orders from the President.

[snip]

After Yates spoke to McGahn, he had a meeting with Trump and Priebus and others.

On January 26, 2017, Mr. McGahn briefed the President concerning the information conveyed by Ms. Yates. Additional advisors were brought in, including White House Chief of Staff Mr. Priebus. It was agreed that additional information would be needed before any action was taken. As recorded by Mr. McGahn, “Part of this concern was a recognition by McGahn that it was unclear from the meeting with Yates whether an action could be taken without jeopardizing an ongoing investigation.” At that time “President Trump asked McGahn to further look into the issue as well as finding out more about the calls.”

Note how important it is that the letter ignore Yates’ public statements? She claims she suggested the White House should take action, meaning they should fire Flynn. The White House claimed (in a piece written after the “let it go” conversation) that they didn’t know whether they could fire Flynn because there might be an ongoing investigation. And Trump used that as an excuse to get more information on the investigation.

McGahn may have spent 30 hours blaming Trump for writing this obvious retrospective CYA piece (one piece of news in this piece is that McGahn has been called by for a third appearance by Mueller’s team, but the story doesn’t reveal when that was). But he wrote it. And he likely has some legal risk for having done so.

Sometimes cooperation is just a failure to obstruct

Which is one of my gripes with this story overall. In spite of describing how McGahn and his lawyer worried about the former’s legal exposure, exposure that led them to embrace the ability to appear before Mueller directly, the whole theme of this story is that McGahn “cooperated” with Mueller’s inquiry. The word, in some legal contexts, may mean “responded to legal requests in a way that limited a person’s own criminal exposure” and in others may mean “helped convict co-conspirators.”

In this story, the former connotation is used though the latter connotation is sold. Because the story doesn’t explain the difference in connotations, it makes McGahn look far more cooperative than he has necessarily been.

I mean, maybe he has been. But to make that case, you’d need to ask that basic question: is he also answering questions about the election conspiracy, questions that likely go beyond his own legal exposure?

Mueller can lay out Trump’s actions in an indictment listing him as a non-indicted witness or an Unindicted Co-Conspirator

There are two other details, regular features of Maggie and Mike’s stories on what White House lawyers tell them to say, that are pure PR.  First (because people on Twitter never understand this point), Maggie and Mike repeat something that Rudy Giuliani appears to have them chanting in their sleep, that the end product of this investigation is going to be a report to Congress.

Mr. Mueller has told the president’s lawyers that he will follow Justice Department guidance that sitting presidents cannot be indicted. Rather than charge Mr. Trump if he finds evidence of wrongdoing, he is more likely to write a report that can be sent to Congress for lawmakers to consider impeachment proceedings.

Thus far, Mueller has obtained four indictments and five guilty pleas, each laying out some potentially criminal conduct of associates. Indeed, the most recent indictment included this language, making it clear that Russian hackers responded to Trump’s request that Russia hack Hillary by … attempting to hack Hillary.

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

That is, we’ve already seen nods towards Trump’s involvement in a conspiracy, without any report to Congress. Laying out Trump’s criminal actions as unindicted conduct in indictments has several legal advantages over just reporting it to Congress, including it would raise the stakes on pardoning any co-conspirators and potentially force Trump to sit for an interview. Moreover, indictments are how Mueller has communicated thus far, and how Rod Rosenstein has said they intend to communicate. So perhaps the NYT should stop simply repeating Rudy’s spin on this point?

Trump has demonstrably not provided unparalleled cooperation

Finally, Maggie and Mike include these three paragraphs uncritically in their piece.

Mr. Dowd said that cooperation was the right approach but that Mr. Mueller had “snookered” Mr. Trump’s legal team. The White House has handed over more than one million documents and allowed more than two dozen administration officials to meet with Mr. Mueller in the belief that he would be forced to conclude there was no obstruction case.

“It was an extraordinary cooperation — more cooperation than in any major case — no president has ever been more cooperative than this,” Mr. Dowd said, adding that Mr. Mueller knew as far back as October, when he received many White House documents, that the president did not break the law.

As the months passed on, the misinterpretation by Mr. McGahn and Mr. Burck that the president would let Mr. McGahn be blamed for any obstruction case has become apparent. Rather than placing the blame on Mr. McGahn for possible acts of obstruction, Mr. Trump has yet to even meet with the special counsel, his lawyers resisting an invitation for an interview.

As I have laid out, it is simply not the case that Trump has “more cooperation than in any major case.” George Bush’s White House provided similar cooperation in the (less major) CIA leak case, even before you fluff the numbers by counting texts as pages of documents. But that’s assuming something that this passage makes clear you can’t assume: that Trump will ever sit for an interview. Both Dick Cheney and George Bush were willing to sit for interviews; the former even did so under oath.

Compare that to the Plame affair leak investigation, when Bush sat for an interview in June 2004, and Cheney — who himself made some grossly false statements in his tenure — sat for one in May 2004 and a little-known follow-up that August. According to Cheney’s autobiography, “[T]he second session was conducted under oath so that [his] testimony could be submitted to the grand jury.” Zeidenberg, for his part, doesn’t remember any of those interviews requiring a subpoena.

Samborn, the Fitzgerald spokesperson who was famously reticent during the whole CIA leak investigation, offered an expansive rebuttal to Dowd’s claim that this White House has offered unprecedented cooperation. “Trump’s team can claim all the cooperation it wants, and whether justifiably so or not, it seems to me that it all gets negated, if at the end, he personally refuses to be questioned when so much substance depends on what he knew and did, as well as his state of mind.”

Any refusal to sit for an interview, Samborn said, was central evaluating the level of cooperation.

At some point, the NYT might stop repeating breathless stories premised on the notion that Trump will ever sit for an interview and instead report the fact — that Trump has refused the kind of cooperation with a legal investigation his predecessors have offered.

Sometimes a Plea Is Just a Plea: The Ongoing Criminal Exposure of Mueller’s “Cooperating” Witnesses

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One of the most interesting details from the government’s George Papadopoulos Sentencing Memo released last night is this passage, stating that Papadopoulos’ plea was not a standard cooperation agreement.

The plea agreement entered into by the government and the defendant was not a standard cooperation agreement, and the government did not agree to make a motion under U.S.S.G. § 5K1.1 based on cooperation by the defendant. Nevertheless, the government agreed to “bring to the Court’s attention at sentencing the defendant’s efforts to cooperate with the Government, on the condition that [the defendant] continues to respond and provide information regarding any and all matters as to which the Government deems relevant.” (Plea Agreement p. 4). Pursuant to this agreement, the Government provides the Court with the following information.

[snip]

The defendant did not provide “substantial assistance,” and much of the information provided by the defendant came only after the government confronted him with his own emails, text messages, internet search history, and other information it had obtained via search warrants and subpoenas well after the defendant’s FBI interview as the government continued its investigation. The defendant also did not notify the government about a cellular phone he used in London during the course of the campaign – that had on it substantial communications between the defendant and the Professor – until his fourth and final proffer session.

While there had been some discussion about what kind of plea deal Papadopoulos got, this statement seems to say that Papadopoulos didn’t offer up any specific cooperation against co-conspirators. Rather, the deal was simply that if he offered up his cooperation about his own actions, the government would tell the court that he did so, with no obligation to ask the court for any downward sentencing. The deal, then, was to limit his exposure to just one false statements charge, rather than the multiple false statements and obstruction charge he could have gotten for trying to confuse the FBI.

Importantly, the deal only applied to conduct specified in the offense — that is, the lies to the FBI and the obstruction of justice by hiding his Facebook and cell phone data. While his statement of offense includes much of his discussion with Russian assets about setting up a meeting, it says nothing about other conduct, such as accepting $10,000 from a suspected Israeli asset, or his ongoing negotiations with Sergei Millian, basically to spy on the Trump administration in exchange for a monthly payment (which was conditioned on getting a job in the administration, which is one of the reasons — the government suggests in the memo — why Papadopoulos may have lied to the FBI in January 2017).

That is, Papadopoulos not only faces prison time if the court accepts the government’s recommended sentence, but he may have ongoing exposure for foreign agent or conspiracy charges not covered by this plea agreement.

He made a deal to get several false statements and obstruction charges turned into one, but he didn’t even capitalize on that deal, and may still face additional legal risk tied to the Russian tampering.

That led me to compare the language for all the other plea deals Mueller’s team has made (something NYCSouthpaw started to do in this thread in February). It’s clear that Alex van der Zwaan got the least out of his plea deal (though he may have cooperated more in getting to that deal, which would have been important given his foreign status). That’s significant, because the prosecutor compared van der Zwaan to Papadopoulos in their memo.

The other three plea deals — Mike Flynn, Richard Pinedo (for identity theft tied to the Internet trolls), and Rick Gates — do obligate the government to submit a 5K statement for downward departure on sentencing if the person provides substantial cooperation.

But Pinedo and Flynn’s deals are limited just to the statement of offense. In Flynn’s case, his statement includes several lies to the FBI and his failure to register under FARA, but not a lot of other known conduct, even aside from any conspiracy involving Russia.

Only Gates’ plea includes broad forgiveness for criminal conduct (though the charges he pled to also include more significant penalties than Flynn and Papadopoulos). That’s yet another sign that he offered quite a bit in his proffer, well beyond incriminating Paul Manafort.

I’ve been nudging the attentive lawyers to explain what this means in terms of ongoing exposure. But if I were Mike Flynn, the Papadopoulos example might really incentivize me to be more cooperative.

George Papadopoulos:

In consideration of your client’s guilty plea to the above offense, your client will not be further prosecuted criminally by this Office for the conduct set forth in the attached Statement of the Offense.

No government obligation section beyond,

agreeing to bring to the Court’s attention at sentencing the defendant’s efforts to cooperate with the Government, on the condition that your client continues to respond and provide information regarding any and all matters as to which the Government deems relevant.

Mike Flynn:

In consideration of your client’s guilty plea to the above offense, your client will not be further prosecuted criminally by this Office for the conduct set forth in the attached Statement of the Offense.

5K language included.

Alex van der Zwaan:

In consideration of your client’s guilty plea to the above offense, your client will not be further prosecuted criminally by this Office for the conduct set forth in the attached Statement of the Offense, for any other false statements made by him to the Office on November 3 and December 1, 2017, any destruction, deletion, and withholding of documents and evidence in connection with requests by this Office or his law firm, and any violations of the Foreign Agent Registration Act or other law arising from the preparation and/or roll out of the Tymoshenko report for the Ukraine Ministry of Justice.

No government obligation section.

Richard Pinedo:

In consideration of your client’s guilty plea to the above offense, your client will not be further prosecuted crininally by this Office for the conduct set forth in the attached Statement of the Offense.

5K language included.

Rick Gates:

In consideration of your client’s guilty plea to the above offenses, and upon the completion of full cooperation as described herein, no additional criminal charges will be brought against the defendant for his heretofore disclosed participation in criminal activity, including money laundering, false statements, personal and corporate tax and FBAR offenses, bank fraud, and obstruction of justice. In addition, subject to the terms of this Agreement, at the time of sentence, the Government will move to dismiss the remaining counts of the Indictment in this matter. In addition, the Office will move promptly to dismiss without prejudice the charges brought against your client in the Eastern District of Virginia and your client waives venue as to such charges in the event he breaches this Agreement.

5K language included.

Lawfare’s Theory of L’Affaire Russe Misses the Kompromat for the Pee Glee

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

Lawfare has updated a piece they did in May 2017, laying out what they believe are the seven theories of “L’Affaire Russe,” of which just five have withstood the test of time. It’s a worthwhile backbone for discussion among people trying to sort through the evidence.

Except I believe they get one thing badly wrong. Close to the end of the long post, they argue we’ve seen no evidence of a kompromat file — which they imagine might be the pee tape described in the probably disinformation-filled Steele dossier.

On the other hand, the hard evidence to support “Theory of the Case #6: Kompromat” has not materially changed in the last 15 months, though no evidence has emerged that undermines the theory either. No direct evidence has emerged that there exists a Russian kompromat file—let alone a pee tape—involving Trump, despite a huge amount of speculation on the subject. What has changed is that Trump’s behavior at the Helsinki summit suddenly moved the possibility of kompromat into the realm of respectable discourse.

Nevertheless, along the way, they point to evidence of direct ties between Trump’s behavior and Russian response.

The candidate, after all, did make numerous positive statements about Russian relations and Vladimir Putin himself—though how much of this has anything to do with these meetings is unclear. At a minimum, it is no small thing for the Russian state to have gotten a Republican nominee for president willing to reverse decades of Republican Russia-skepticism and commitment to NATO.

[snip]

What’s more, two days before the meeting, Trump promised a crowd that he would soon be giving a “major speech” on “all of the things that have taken place with the Clintons”—but after the meeting turned out to be a dud, the speech did not take place. And notably, the hacking indictment shows that the GRU made its first effort to break into Hillary Clinton’s personal email server and the email accounts of Clinton campaign staff on the same day—July 27, 2016—that Trump declared at a campaign stop, “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing” from Clinton’s email account.

For some reason, they describe Don Jr’s reported disappointment about the June 9 meeting, but not Ike Kaveladze’s testimony that his initial report to Aras Agalarov (the report made in front of witnesses) was positive. Based on Don Jr’s heavily massaged (and, public evidence makes clear, perjurious) testimony, they claim that the Trump Tower meeting was a dud. Then they go on to note that the Russians at the June 9 meeting asked for Magnitsky sanction relief, rather than offering dirt.

In June 2016, Donald Trump, Jr., Jared Kushner and Paul Manafort met with a group of Russian visitors in Trump Tower, including attorney Natalia Veselnitskaya. In the now-infamous email exchange that preceded the meeting, Trump, Jr. wrote, “I love it, especially later in the summer” when informed that the meeting would provide him with documents that “would incriminate Hillary and her dealings with Russia and would be very useful to your father.” Trump, Jr. and other representatives of the Trump campaign were reportedly disappointed when Veselnitskaya failed to provide the promised “dirt” on Clinton and discussed the issue of Russian adoptions under the Magnitsky Act instead.

[snip]

While there is evidence—most notably with respect to the Trump Tower meeting—of Trump campaign willingness to work with the Russians, there’s not a lot of evidence that any kind of deal was ever struck.

To sustain their case that “there’s not a lot of evidence that any kind of deal was ever struck,” they neglect a number of other points. They don’t mention, for example, that a week after the Trump Tower meeting, the Russians released the first of the stolen files. They don’t mention that (contrary to Don Jr’s massaged testimony and most public claims since) there was a significant effort in November 2016 to follow-up on that June 9 meeting. They don’t mention that that effort was stalled because of the difficulty of communicating given the scrutiny of being President-elect. They don’t mention that the same day the Agalarov people discussed the difficulty of communicating with the President-elect, Jared Kushner met the Russian Ambassador in Don Jr’s office (not in transition space) and raised the possibility of a back channel, a meeting which led to Jared’s meeting with the head of a sanctioned bank, which in turn led to a back channel meeting in the Seychelles with more sanctioned financiers. And inexplicably, they make no mention of the December 29, 2016 calls, during which — almost certainly on direct orders from Trump relayed by KT McFarland — Mike Flynn got the Russians to stall any response to Obama’s sanctions, a discussion Mike Flynn would later lie about to the FBI, in spite of the fact that at least six transition officials knew what he really said.

Why does Lawfare ignore the basis for the plea deal that turned Trump’s one-time National Security Advisor into state’s evidence, when laying out the evidence in this investigation?

All of which is to say that even with all the things Lawfare ignores in their summary, they nevertheless lay out the evidence that Trump and the Russians were engaged in a call-and-response, a call-and-response that appears in the Papadopoulos plea and (as Lawfare notes) the GRU indictment, one that ultimately did deal dirt and got at least efforts to undermine US sanctions (to say nothing of the Syria effort that Trump was implementing less than 14 hours after polls closed, an effort that has been a key part of both Jared Kushner and Mike Flynn’s claims about the Russian interactions).

At each stage of this romance with Russia, Russia got a Trump flunkie (first, Papadopoulos) or Trump himself to publicly engage in the call-and-response. All of that led up to the point where, on July 16, 2018, after Rod Rosenstein loaded Trump up with a carefully crafted indictment showing Putin that Mueller knew certain things that Trump wouldn’t fully understand, Trump came out of a meeting with Putin looking like he had been thoroughly owned and stood before the entire world and spoke from Putin’s script in defiance of what the US intelligence community has said.

People are looking in the entirely wrong place for the kompromat that Putin has on Trump, and missing all the evidence of it right in front of their faces.

Vladimir Putin obtained receipts at each stage of this romance of Trump’s willing engagement in a conspiracy with Russians for help getting elected. Putin knows what each of those receipts mean. Mueller has provided hints, most obviously in that GRU indictment, that he knows what some of them are.

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

But Mueller’s not telling whether he has obtained the actual receipts.

And that’s the kompromat. Trump knows that if Mueller can present those receipts, he’s sunk, unless he so discredits the Mueller investigation before that time as to convince voters not to give Democrats a majority in Congress, and convince Congress not to oust him as the sell-out to the country those receipts show him to be. He also knows that, on the off-chance Mueller hasn’t figured this all out yet, Putin can at any time make those receipts plain. Therein lies Trump’s uncertainty: It’s not that he has any doubt what Putin has on him. It’s that he’s not sure which path before him — placating Putin, even if it provides more evidence he’s paying off his campaign debt, or trying to end the Mueller inquiry before repaying that campaign debt, at the risk of Putin losing patience with him — holds more risk.

Trump knows he’s screwed. He’s just not sure whether Putin or Mueller presents the bigger threat.

How ABC Broke a Story about Mueller LIMITING Questions on Obstruction and Claimed It Showed a Focus on Obstruction

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

On Monday, Rudy Giuliani revealed that Robert Mueller had gone ten days without responding to the White House’s latest set of conditions under which President Trump would be willing to sit for an interview.

We have an offer to [Mueller] — by now, like, the fifth offer back and forth, so you’d have to call it a counter-counter-counteroffer. And, where it stands is, they haven’t replied to it and it’s been there about 10 days,” he said. “Despite the fact that we’re getting more and more convinced that maybe he shouldn’t do it, we still have that offer outstanding, and in good faith, if they came back and accepted it, or if they came back and modified it in a way that we can accept, we would consider it.

By yesterday afternoon, ABC, showing unbelievable credulity, reported that Mueller wanted to ask Trump questions about obstruction.

Special counsel Mueller wants to ask Trump about obstruction of justice: Sources

Special Counsel Robert Mueller’s office wants to ask President Donald Trump about obstruction of justice, among other topics, sources close to the White House tell ABC News. According to sources, the president learned within the last day that the special counsel will limit the scope of questioning and would like to ask questions both orally and written for the President to respond to.

This left the impression — not just among readers who aren’t paid to know better, but among journalists who are — that the focus of any interview would be obstruction, not the President’s role in a conspiracy with the Russians.

By the end of the day, more responsible reporting revealed that pretty much the opposite of what ABC reported had occurred. In his latest proposal, Mueller offered to drop half the obstruction questions.

In a letter sent Monday, Mueller’s team suggested that investigators would reduce by nearly half the number of questions they would ask about potential obstruction of justice, the two people said.

That would, of course, mean that a greater proportion of the questions would be on that conspiracy with Russia, not on obstruction. That’s not surprising. Between January and March, after all, the focus of Mueller’s questions (as interpreted by Jay Sekulow) shifted more towards that conspiracy than obstruction.

Meanwhile, the President’s favorite scribes pushed another bullshit line he has been pushing for over six months: in spite of what you might conclude given his increasing attacks on Mueller on Twitter, the NYT would have you believe, Trump wants to do an interview, against his lawyers’ better judgment, and isn’t just stalling while trying to claim he’s not obsessed with and afraid of this investigation.

President Trump pushed his lawyers in recent days to try once again to reach an agreement with the special counsel’s office about his sitting for an interview, flouting their advice that he should not answer investigators’ questions, three people briefed on the matter said on Wednesday.

Mr. Trump has told advisers he is eager to meet with investigators to clear himself of wrongdoing, the people said. In effect, he believes he can convince the investigators for the special counsel, Robert S. Mueller III, of his belief that their own inquiry is a “witch hunt.”

[snip]

Mr. Trump has put his lawyers in the vexing position of trying to follow the desires of their client while seeking to protect him from legal jeopardy at the same time.

Here’s CNN showing Rudy planting the bullshit line, as well as another bullshit line the press continues to repeat uncritically, that this inquiry is leading towards a report to Congress and not another set of indictments.

He added that Trump has “always been interested in testifying. It’s us, meaning the team of lawyers, including me, that have the most reservations about that.”

Giuliani also sent a message to Mueller: It’s time for the special counsel to “put up or shut up.”

“They should render their report. Put up — I mean I guess if we were playing poker (you would say) ‘Put up or shut up.’ What do you got?” Giuliani said. “We have every reason to believe they don’t have anything of the President doing anything wrong. I don’t think they have any evidence he did anything wrong.”

Why is it that the press can easily identify outright bullshit when it comes directly from Trump or Rudy’s mouth, but when they tell you equally obvious bullshit on terms that they’re telling you a secret, it somehow gets reported as if it’s true, all the evidence notwithstanding?

Ferfecksake, people. Trump and his legal team have spent weeks claiming that “collusion” is not a crime. He stood next to Vladimir Putin as the latter replayed the June 9 script, looking like a whipped puppy, and denied he got elected thanks to Putin’s assistance, siding with a hostile foreign leader over the United States’ intelligence community. The last indictment Mueller released included a paragraph nodding vigorously towards GRU’s hackers responding to requests from Trump, as if responding to a signal (a practice for which Mueller has already shown evidence).

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

Do you really think Mueller would put Donald Trump right there on page 8 of the GRU indictment and be focused primarily on obstruction? Do you really think Mueller doesn’t have the conspiracy to defraud the US (and conspiracy to commit CFAA) indictment that has been clear since February planned out, where even without an interview he could include Trump as “Male 1” to indicate how he communicated acceptance of a Russian deal over and over? Do you really think people with a significant role in the conspiracy would know that Trump was moving within 14 hours of the polls closing to pay off his debts to Russia if there weren’t more evidence that Donald J Trump willingly joined a conspiracy with Russia?

I even got asked the other day, by a self-described expert on this case, why so many witnesses are talking about being asked questions about obstruction. I noted that the only witnesses we’ve heard from recently — close associates of Roger Stone — were instead describing questions about meetings attended and Russian deals floated and social media campaigns launched. That is, they were asked about conspiracy, not obstruction. We don’t even know what Jared Kushner was asked in his lengthy April questioning, but I assure you it wasn’t focused primarily on obstruction.

I get it. Mueller isn’t leaking and readers want more Russia stories so any time the White House seeds one, all secret like except that CNN films it, you gotta tell it in such a way that you’ll get those cable-televised secrets the next time. But please please please treat those claims with the same skepticism you treat Trump and Rudy bullshit when it is delivered where the public can see it. If Trump and Rudy are lying in public, there is zero reason to believe they’re telling you the truth when they claim to be feeding you secrets.

Robert Mueller is investigating the President of the United States for willfully entering a conspiracy with Russians offering to help him get elected, I believe in exchange for certain policy considerations, including changes to US Syria policy. Yes, Mueller obtained evidence demonstrating that conspiracy in large part because, in an effort to thwart any investigation into how he got elected, Trump fired the last guy who was investigating it (and investigating it less aggressively). Yes, that means obstruction is one of the crimes that Mueller believes Trump may have committed (if you’re going to harp on obstruction, then please focus on Trump’s pre-emptive offers of pardons to Mike Flynn and Paul Manafort, because it’s one of the most grave examples of obstruction and it’s critical to understanding what is going on now in EDVA).

I can’t predict how this will end — whether Mueller will decide he has enough evidence to implicate a sitting president, if so, how Mueller might lay out Trump’s involvement along with that of his family and aides, what Congress will do in response, what the long term impact on the country will be.

But that doesn’t mean the press is doing its readers any favors by playing dumb about what Mueller is really pursuing.

Twenty Comey Questions Do Not Eliminate Trump’s Obstruction Exposure

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

As Trump’s legal teams shift their efforts to stall Mueller’s investigation, the press is shifting their problematic reporting on what legal exposure Trump has. As part of its report that Trump’s legal team has made a “counteroffer” to have Trump sit for an interview covering just collusion, the WSJ repeats Rudy Giuliani’s bullshit that Trump’s obstruction only covers the Comey firing.

The president’s legal team is open to him answering questions about possible collusion with Moscow, Mr. Giuliani said, but is less willing to have Mr. Trump discuss questions about obstruction of justice. “We think the obstruction of it is handled by Article 2 of the Constitution,” Mr. Giuliani said, referring to the provision that gives the president executive authority to appoint and dismiss members of his administration.

Mr. Mueller is investigating whether Trump associates colluded with Russia’s efforts to interfere in the 2016 U.S. election, and whether Mr. Trump sought to obstruct justice in the firing of former Federal Bureau of Investigation director James Comey in May 2017, while the FBI’s Russia probe was under way. Mr. Trump has repeatedly denied collusion and obstruction, and Moscow has denied election interference.

[snip]

Mr. Giuliani said in an interview Monday that the reasons Mr. Trump has given for firing the former FBI director are “more than sufficient” and that as president, he had the power to fire any member of his administration.

This is just more parroting of Rudy’s spin, just as the old line that Trump was primarily at risk for obstruction.

Here’s the list of questions Jay Sekulow understood Mueller wanting to ask sometime in March, as presented by the NYT. I’ve bolded what I consider collusion questions (including the June 9 statement, as abundant evidence suggests that reflects direct collusion with Putin on the framing of their quid pro quo). I’ve italicized the questions that exclusive address Comey.

  1. What did you know about phone calls that Mr. Flynn made with the Russian ambassador, Sergey I. Kislyak, in late December 2016?
  2. What was your reaction to news reports on Jan. 12, 2017, and Feb. 8-9, 2017?
  3. What did you know about Sally Yates’s meetings about Mr. Flynn?
  4. How was the decision made to fire Mr. Flynn on Feb. 13, 2017?
  5. After the resignations, what efforts were made to reach out to Mr. Flynn about seeking immunity or possible pardon?
  6. What was your opinion of Mr. Comey during the transition?
  7. What did you think about Mr. Comey’s intelligence briefing on Jan. 6, 2017, about Russian election interference?
  8. What was your reaction to Mr. Comey’s briefing that day about other intelligence matters?
  9. What was the purpose of your Jan. 27, 2017, dinner with Mr. Comey, and what was said?
  10. What was the purpose of your Feb. 14, 2017, meeting with Mr. Comey, and what was said?
  11. What did you know about the F.B.I.’s investigation into Mr. Flynn and Russia in the days leading up to Mr. Comey’s testimony on March 20, 2017?
  12. What did you do in reaction to the March 20 testimony? Describe your contacts with intelligence officials.
  13. What did you think and do in reaction to the news that the special counsel was speaking to Mr. Rogers, Mr. Pompeo and Mr. Coats?
  14. What was the purpose of your calls to Mr. Comey on March 30 and April 11, 2017?
  15. What was the purpose of your April 11, 2017, statement to Maria Bartiromo?
  16. What did you think and do about Mr. Comey’s May 3, 2017, testimony?
  17. Regarding the decision to fire Mr. Comey: When was it made? Why? Who played a role?
  18. What did you mean when you told Russian diplomats on May 10, 2017, that firing Mr. Comey had taken the pressure off?
  19. What did you mean in your interview with Lester Holt about Mr. Comey and Russia?
  20. What was the purpose of your May 12, 2017, tweet?
  21. What did you think about Mr. Comey’s June 8, 2017, testimony regarding Mr. Flynn, and what did you do about it?
  22. What was the purpose of the September and October 2017 statements, including tweets, regarding an investigation of Mr. Comey?
  23. What is the reason for your continued criticism of Mr. Comey and his former deputy, Andrew G. McCabe?
  24. What did you think and do regarding the recusal of Mr. Sessions?
  25. What efforts did you make to try to get him to change his mind?
  26. Did you discuss whether Mr. Sessions would protect you, and reference past attorneys general?
  27. What did you think and what did you do in reaction to the news of the appointment of the special counsel?
  28. Why did you hold Mr. Sessions’s resignation until May 31, 2017, and with whom did you discuss it?
  29. What discussions did you have with Reince Priebus in July 2017 about obtaining the Sessions resignation? With whom did you discuss it?
  30. What discussions did you have regarding terminating the special counsel, and what did you do when that consideration was reported in January 2018?
  31. What was the purpose of your July 2017 criticism of Mr. Sessions?
  32. When did you become aware of the Trump Tower meeting?
  33. What involvement did you have in the communication strategy, including the release of Donald Trump Jr.’s emails?
  34. During a 2013 trip to Russia, what communication and relationships did you have with the Agalarovs and Russian government officials?
  35. What communication did you have with Michael D. Cohen, Felix Sater and others, including foreign nationals, about Russian real estate developments during the campaign?
  36. What discussions did you have during the campaign regarding any meeting with Mr. Putin? Did you discuss it with others?
  37. What discussions did you have during the campaign regarding Russian sanctions?
  38. What involvement did you have concerning platform changes regarding arming Ukraine?
  39. During the campaign, what did you know about Russian hacking, use of social media or other acts aimed at the campaign?
  40. What knowledge did you have of any outreach by your campaign, including by Paul Manafort, to Russia about potential assistance to the campaign?
  41. What did you know about communication between Roger Stone, his associates, Julian Assange or WikiLeaks?
  42. What did you know during the transition about an attempt to establish back-channel communication to Russia, and Jared Kushner’s efforts?
  43. What do you know about a 2017 meeting in Seychelles involving Erik Prince?
  44. What do you know about a Ukrainian peace proposal provided to Mr. Cohen in 2017?

By my count there are:

Comey obstruction: 17

Other obstruction: 13

Collusion: 14

There aren’t quite 20 Comey questions, but it’s close.

By getting a journalist to uncritically parrot Rudy’s claim that all the obstruction questions pertain to Comey, the White House has buried some of the more egregious examples of obstruction, including (offering pre-emptive pardons to Flynn and Manafort, and whoever else) the gross abuse of the pardon power, and threatening the Attorney General. It also obscures the obstruction for which there are now cooperating witnesses (including, but not limited to, Flynn).

Probably, Trump is trying this ploy because a range of things — Manafort’s imminent trial, Cohen’s likely imminent cooperation, Mueller’s acute focus on Stone, and whatever else Putin told him — give him an incentive to have an up-to-date understanding of the current status of the collusion investigation. If he can do that in a way that makes it harder to charge some of the egregious obstruction Trump has been engaged in, all the better.

Whatever it is, it is malpractice to credulously repeat Rudy’s claim that Trump is only on the hook for obstruction for firing Comey.