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Re: The Bogus Manafort Challenge To Mueller’s Jurisdiction

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I said from the outset that the Manafort challenges to Mueller’s authority, both in DC District and Eastern District of Virginia were bogus and ill taken. Not that his attorneys should be faulted for protecting that record for later appeal, that is simply what decent criminal defense lawyers do. But the siamesed motions were never the compelling “legitimate question” the press made them out to be. Even taking into account the cantankerous probing of Judge T.S. Ellis in EDVA at oral argument on May 4, 2018, the claims of Manafort, and later blithely parroted by Trump that same day, Manafort’s arguments were discredited by Dreeben’s argument. Even at that hearing, that Trump Parroted, Judge Ellis indicated there could well not exist a convincing argument in the long run.

Well, okay. We still don’t know how Judge Ellis will rule, but we do now know how Judge Amy Berman Jackson ruled on pretty much the identical argument in DDC. Her decision was handed down yesterday.

This was a spanking of Manafort’s dismissal motion, from top to bottom. On every prong, and at every turn, Berman Jackson dismissed Manafort’s arguments. She even went so far as to opine that Mueller would have been effectively derelict not to have pursued these matters. The matter will proceed to trial in DDC, before Judge Berman Jackson, currently set for September 7, 2018.

So, that leaves the EDVA matter in front of the aforementioned cantankerous Judge Ellis. The decision by Berman Jackson will have to weigh heavily on Ellis as he drafts his decision on the parallel arguments in EDVA. Despite all the probing and disdain Ellis displayed at oral argument on May 4, Ellis is famous for just that. Over decades. Ellis could certainly find differently than Berman Jackson, that is his prerogative, but it is hard to see how he is going to. First off, the facts, pleadings and scope of authority demonstrated by Mueller, via Dreeben, simply do not warrant it. But, secondly, there is now a marker by Berman Jackson. Judge T.S. Ellis III may be commonly known as cantankerous, but he is not commonly known as a fool.

We shall see, but if I were Paul Manafort, I would not be sleeping easy. And Trump might want to stop cackling. So, enjoy the decision by Berman Jackson, it is worth the read if you are interested. And it is exactly why a few of us here were more than skeptical of Manafort’s motions.

The Credulous Right’s Latest Dribbling Water Pistol

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Longtime GOP operative Rick Gates told Alex Van der Zwaan that Konstantin Kilimnik, the Oleg Deripaska go-between with whom Trump campaign manager Paul Manafort discussed providing private briefings on the campaign, “was a former Russian Intelligence Officer with the GRU.” The House Intelligence Report, having reviewed the evidence against Carter Page, George Papadopoulos, Mike Flynn, and (to a much lesser extent) Paul Manafort complains that, “the Trump campaign was not notified that members of the campaign were potential counterintelligence concerns.” The report suggests (Trump’s hiring of Flynn after Obama warned him notwithstanding) that the “campaign was unable to address the problems with each campaign member and was ignorant about the potential national security concerns.”

Certainly, these Republicans give real credence to the possibility that Trump’s campaign (the campaign that did virtually no vetting and liked aides who would work “for free”) was infiltrated by Russian spies.

Nevertheless, the right wing noise machine (including former Federal prosecutor Andrew McCarthy!!!) is pushing a new conspiracy theory: that George Papadopoulos was planted by either the Deep State or the Hillary Clinton campaign. One version of the story is being pitched by Stephan Roh. Roh is, by all appearances, Joseph Mifsud’s handler.

Then there’s the Beeb piece advancing the story of Joseph Mifsud (ignore the repetitive annoying music and John Schindler presence). It provides details on the role played by German born Swiss financier and lawyer Stephan Roh. Roh has three ties to Mifsud. In 2014, Roe started lecturing at the London Academy of Diplomacy where Misfud worked. In the same year, he bought the Roman institution Misfud helped manage. And then, in 2016, when George Papadopoulos was being targeted, Roh was on a panel with Papadopoulos’ two handlers.

That same month, Mifsud was in Moscow on a panel run by the Kremlin-backed Valdai Club with Timofeev and the third man, Dr Stephan Roh, a German multi-millionaire.

Mifsud and Roh interlock: in 2014, Roh became a visiting lecturer at the London Academy of Diplomacy. Roh bought Link Campus University, a private institution in Rome where Mifsud was part of the management and Mifsud became a consultant at Roh’s legal firm.

The Beeb piece goes on to describe how Roh bought a British nuclear consultancy too. When the British scientist behind it balked at cozying up to Russia, he was fired, but it appears to still be used as a cut-out.

Again, none of this is new: Russia just spent a lot of money to set up some fronts. The amount of money floating around and the ability to buy into a title by buying an old castle do make it easier, however.

But he’s out with a book that — in addition to describing how he was surveilled when he came to the US in the wake of the revelation of the Papadopoulos plea last year — alleges that Papadopoulos was actually planted in the Trump campaign by the FBI to elicit outreach to Russia.

Roh and his co-author Thierry Pastor, who also knows Mifsud, write in the book that, upon arriving in New York City with his family in October 2017, “one of the co-authors” was “fished from the passport control” line at John F. Kennedy airport while his family “was retained with armed police force.” (Photos posted by Roh’s wife on social media in October 2017 suggest she was visiting New York in late October.) He was then interrogated for “hours,” they write, by “a team of Special Counsel Robert Mueller investigating Russia-Gate.” The book alleges that he and his family were then “observed, followed, and taped, at every moment and every place in New York” by the FBI and that his family was assigned to “special rooms at the hotel” while security personnel “patrolled the corridors.”

It is unclear whether Roh was actually surveilled after being interviewed—a spokesman for the special counsel’s office declined to comment. The book further alleges that Mifsud is not a Russian spy but is actually “deeply embedded in the network of Western Intelligence Services.” Papadopoulos, too, is a “western intelligence operative,” the authors assert, who was “placed” in the Trump campaign by the FBI. In that sense, the book is similar to one written recently by another obscure player detained and questioned by Mueller’s team earlier this year: Ted Malloch, a controversial London-based academic with ties to Trump associates Roger Stone and Nigel Farage. In his book The Plot to Destroy Trump: How the Deep State Fabricated the Russia Dossier to Subvert the President, Malloch argues that the apparent covert intelligence activity connected to the Trump campaign was not Russian, but Western.

Roh and Pastor’s prevailing thesis is that Papadopoulos’s “mission” was to bring Trump into contact with Russian officials. “That’s nuts,” Papadopoulos’s wife Mangiante told me in response to the book’s theory. “From ‘coffee boy’ to spy … George has been upgraded!” she joked, referring to the Trump campaign’s claim that Papadopoulos, a young energy consultant who joined the Trump campaign in March 2016, was so low-level that he was basically a “coffee boy.”

Again, the Republicans on HPSCI who have reviewed the intelligence sure seem miffed that Trump didn’t get an opportunity to weed out the suspected assets in his campaign. But this, from a transparent Russian operative, is still what Republicans want to argue to discredit the Mueller investigation.

Consider what would have had to have happened to pull this off.

First, the Deep State would have started this process years ago, when Papadopoulos worked for the Hudson Institute, establishing his conservative bona fides. Then, they would have inexplicably had Papadopoulos work for Ben Carson, which in any normal year would experience no success in the primary and therefore in any normal year could expect none of his aides to be picked up by the winning candidate. Then, somehow Sam Clovis (who multiple witnesses have said welcomed outreach to Russia) would be convinced to recruit Papadopoulos. The FBI would have somehow had to have known that the campaign itself would do no vetting. And even if the FBI could assume the campaign would do no vetting, it would also have to ensure that the campaign wouldn’t distance itself from Papaodpoulos after the WaPo did an embarrassing profile describing how inexperienced Papadopoulos was.

And, of course, somehow this “coffee boy” would have the finesse to convince a lot of far more experienced operatives to accept outreach from Russia.

Further, in spite of its extensive and remarkably successful effort at placing a spy on Trump’s campaign, the FBI would then have to have chosen not just not to herald the fake Russian spy it had planted in the Trump campaign contemporaneously, but to refrain from joining the Russian attribution in October 2016 altogether, effectively utterly pissing away the value of having placed a spy in the Trump campaign.

In some versions, this conspiracy theory even says Papadopoulos was planted by Hillary’s people. Hillary’s campaign was all too willing to seed their crappy dossier publicly, and spent a great deal of messaging talking about both their own targeting by Russia and Trump’s openness to capitalize off that targeting, not to mention pouncing on thinly source reports suggesting a tie between Russian and Trump. And yet somehow, the guy the Hillary Deep State people planted on Trump’s campaign not only didn’t tell their paid MI6 spy to go find the evidence about Papadopoulos being offered willingly at drunken sessions in London, but didn’t just publicize the details in the first place.

In short, to believe this conspiracy, you’d have to believe all these whack assumptions (from an FBI that the same conspiracists argue is otherwise incompetent) and ignore that Republicans who have reviewed the intelligence find credible the claim that Russia was trying to recruit assets in Trump’s campaign.

And yet that’s where even relatively mainstream Republicans are headed next.

This is, very transparently, Russian planted disinformation. And yet the same Republicans who claim there is “no collusion” are regurgitating the disinformation like automatons.

Roger Stone, Rick Gates, and Michael Caputo Met Right Around DNC/Podesta Hack

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Michael Caputo, a former Trump communications official with close ties to Russia who was mentored by Paul Manafort and Roger Stone, was interviewed by Mueller’s team last week. He described how the Mueller team knows more about the Trump campaign than he does, and that they are precisely accurate in targeting what they’re looking for.

“It’s clear they are still really focused on Russia collusion,” Caputo said, adding, “They know more about the Trump campaign than anyone who ever worked there.”

[snip]

“The Senate and the House are net fishing,” Caputo said. “The special counsel is spearfishing. They know what they are aiming at and are deadly accurate.”

In spite of that and his admission that Mueller would only ever interview him for evidence on “collusion,” Caputo, who was bragging last week that his defense fund has twice as much as he claims he has spent in it, insists he did not provide any evidence of such.

Since his initial statements, Caputo has gotten more specific about what he was asked: About meetings between Rick Gates and Stone.

Special counsel Robert Mueller is focusing intensely on alleged interactions between former top Trump campaign official Rick Gates and political operative Roger Stone, one of President Donald Trump’s closest confidants, according to sources with direct knowledge of the matter.

[snip]

The questions have been largely about what was discussed at meetings, including dinners, between Stone and Gates, before and during the campaign, said the sources, who have knowledge of the substance of the recent interviews.

Roger Stone, who continues to offer shifting stories to the press in lieu of actually being interviewed by Mueller (he now claims he meant to say it would soon be the Podestas’, plural, time in the barrel to disclaim knowing Podesta’s emails had been stolen, though he didn’t offer that when his excuse for the Podesta comment was first aired), claims there was only one such meeting.

Still, the timing and claimed explanation for it is still fairly interesting. It occurred just after the NY State Primary that was held on April 19, 2016.

“I only have a record of one dinner with Rick Gates,” he said, adding that the guest list included two other political operatives: Michael Caputo, a former Trump campaign aide who was recently interviewed by Mr. Mueller’s investigators, and Paul Manafort, who soon after took over as chairman of Mr. Trump’s campaign. But Mr. Manafort canceled at the last minute, and Mr. Gates, his deputy, attended in his place.

Mr. Stone said the conversation during the dinner, which fell soon after the New York primary in April 2016, was about the New York State delegate selection for the Republican National Convention. The operatives expressed concern about whether delegates, at a time of deep division among Republicans, would be loyal to Mr. Trump’s vision for the party, Mr. Stone said.

While I find it logical that Caputo was doing delegate counts with Gates, who was the Deputy of the guy doing the Convention counting at that point, I’m less sure Stone stays that close to actual party politics.

Moreover, the three together — Stone, Gates, and Caputo — at such a time (especially if it happened just a week or so later, after the campaign likely learned of emails on offer from George Papadopoulos) might have been remarkably wired in to the outreach from Russia.

We might have more clarity on that if Stone, in his denials, provided the date of the one dinner he admits to. But he chose not to do that.

Did Mueller’s Team Decide They No Longer Need Manafort to Flip?

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One detail of the attacks TS Ellis made on Mueller’s team on Friday has gotten a lot of attention: his insinuation that Mueller’s team was only charging Manafort with bank fraud and tax evasion to get him to flip on Trump.

THE COURT: Apparently, if I look at the indictment, none of that information has anything to do with links or coordination between the Russian government and individuals associated with the campaign of Donald Trump. That seems to me to be obvious because they all long predate any contact or any affiliation of this defendant with the campaign. So I don’t see what relation this indictment has with anything the special prosecutor is authorized to investigate.

It looks to me instead that what is happening is that this investigation was underway. It had something. The special prosecutor took it, got indictments, and then in a time-honored practice which I’m fully familiar with — it exists largely in the drug area. If you get somebody in a conspiracy and get something against them, you can then tighten the screws, and they will begin to provide information in what you’re really interested in. That seems to me to be what is happening here. I’m not saying it’s illegitimate, but I think we ought to be very clear about these facts and what is happening.

[snip]

THE COURT: That’s right, but your argument says, Even though the investigation was really done by the Justice Department, handed to you, and then you’re now using it, as I indicated before, as a means of persuading Mr. Manafort to provide information.

It’s vernacular by the way. I’ve been here a long time. The vernacular is to sing. That’s what prosecutors use, but what you’ve got to be careful of is they may not just sing. They may also compose.

[snip]

THE COURT: It factually did not arise from the investigation. Now, saying it could have arised under it is another matter, but factually, it’s very clear. This was an ongoing investigation. You all got it from the Department of Justice. You’re pursuing it. Now I had speculated about why you’re really interested in it in this case. You don’t really care about Mr. Manafort’s bank fraud. Well, the government does. You really care about what information Mr. Manafort can give you that would reflect on Mr. Trump or lead to his prosecution or impeachment or whatever. That’s what you’re really interested in.

In spite of Ellis’ repeated suggestion that Mueller was just trying to get Manafort to flip and that that might not be illegitimate, Michael Dreeben never took Ellis’ bait, each time returning to the government’s argument that the indictment was clearly authorized by Rod Rosenstein’s  initial appointment memo, and in any case Manafort can’t challenge his indictment based off whether Mueller adhered to internal DOJ regulations.

THE COURT: Where am I wrong in that regard?

MR. DREEBEN: The issue, I think, before you is whether Mr. Manafort can dismiss the indictment based on his claim.

[snip]

In any event, your point, if I can distill it to its essence, is that this indictment can be traced to the authority the special prosecutor was given in the May and August letters. That, as far as you’re concerned, is the beginning and end of the matter.

MR. DREEBEN: Yes, Your Honor, it is the beginning and almost the end. And this is my last point, I promise.

THE COURT: All right.

MR. DREEBEN: The special counsel regulations that my friend is relying on are internal DOJ regulations. He referred to them as if they’re a statute. I want to be clear. They are not enacted by Congress. They are internal regulations of the Department of Justice.

Dreeben’s refusal to engage is all the more striking given one of the differences between the 45-page government response dated April 2 for Manafort’s DC challenge and the 30-page government response dated April 10 for Manafort’s EDVA challenge.

The two briefs are very similar and in some passages verbatim or nearly so. The DC version has more discussion of the Acting Attorney General’s statutory authority to appoint a Special Counsel — language like this:

Finally, Manafort’s remedial arguments lack merit. The Acting Attorney General had, and exercised, statutory authority to appoint a Special Counsel here, see 28 U.S.C. §§ 509, 510, 515, and the Special Counsel accordingly has authority to represent the United States in this prosecution. None of the authorities Manafort cites justifies dismissing an indictment signed by a duly appointed Department of Justice prosecutor based on an asserted regulatory violation, and none calls into question the jurisdiction of this Court.

It includes a longer discussion about how a Special Counsel differs from a Ken Starr type Independent Counsel. It cites some DC-specific precedents. And in general, the discussion in the DC brief is more extensive than the EDVA.

Generally, the differences are probably explained by differing page limits in DC and EDVA.

But along the way, an interesting passage I noted here got dropped: in addition to the general language about a special counsel appointment including the investigation of obstruction of that investigation, the DC brief noted the underlying discussion on Special Counsel regulations envisions the prosecution of people if “otherwise unrelated allegations against a central witness in the matter is necessary to obtain cooperation.”

[I]n deciding when additional jurisdiction is needed, the Special Counsel can draw guidance from the Department’s discussion accompanying the issuance of the Special Counsel regulations. That discussion illustrated the type of “adjustments to jurisdiction” that fall within Section 600.4(b). “For example,” the discussion stated, “a Special Counsel assigned responsibility for an alleged false statement about a government program may request additional jurisdiction to investigate allegations of misconduct with respect to the administration of that program; [or] a Special Counsel may conclude that investigating otherwise unrelated allegations against a central witness in the matter is necessary to obtain cooperation.” 64 Fed. Reg. at 37,039. “Rather than leaving the issue to argument and misunderstanding as to whether the new matters are included within a vague category of ‘related matters,’ the regulations clarify that the decision as to which component would handle such new matters would be made by the Attorney General.” Id.9

9 The allusion to “related matters” refers to the Independent Counsel Act’s provision that the independent counsel’s jurisdiction shall include “all matters related to” the subject of the appointment (28 U.S.C. § 593(b)(3)), which prompted the D.C. Circuit to observe that “the scope of a special prosecutor’s investigatory jurisdiction can be both wide in perimeter and fuzzy at the borders.” United States v. Wilson, 26 F.3d 142, 148 (D.C. Cir.), cert. denied, 514 U.S. 1051 (1995).

This exclusion, too, likely arises from page limits (and its exclusion may explain why Dreeben didn’t point to it in Friday’s argument).

But given Ellis’ focus on it, I find the exclusion notable.

Again, it’s most likely this is just a decision dictated by page limits. But it’s possible that Mueller’s team believed this language less important to include in any decisions issued in EDVA than DC. For example, the existing cooperation agreements were all signed in DC, even where (with George Papadopoulos and Richard Pinedo) at least some of the crimes occurred elsewhere. If Manafort ever flips, that plea agreement will presumably go through DC as well.

Or maybe, given Rick Gates’ cooperation, Mueller’s team has decided they can proceed without Manafort flipping, and instead send him to prison the same way Al Capone went: with tax charges rather than the most heinous crimes.

On the TS Ellis Show and the Lies about Lying

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The last words in the transcript of the hearing held Friday in Paul Manafort’s Eastern District of Virginia bank fraud and tax crime case go like this:

THE COURT: Mr. Asonye, I’m glad to see you here.

MR. ASONYE: I’m glad to see you as well, Your Honor.

Uzo Asonye is an Assistant US Attorney in EDVA who has prosecuted fraud cases before TS Ellis. Mueller’s team added Asonye to the EDVA case at the suggestion of Ellis. Ellis returned to his pleasure that Mueller had heeded his suggestion several other times over the course of the hearing, starting from his first comment after Michael Dreeben introduced himself.

THE COURT: Okay. And, Mr. Asonye, I’m glad to see you here. I indicated that the special counsel should have local counsel, and that’s you.

[snip]

MR. DREEBEN: The second point here is that we are within the Department of Justice. To the extent that Mr. Manafort is suggesting that we’re analogous to the independent counsels that operated under the old statute, that’s not right. Our indictment was reviewed and approved by the Tax Division, by the National Security Division. We operate within a framework of the Department of Justice. We’re not different from the U.S. Attorney’s Office in that respect. We’re all part of the same Department of Justice.

THE COURT: You resisted my suggestion to have someone here, and Mr. Asonye showed up. When did you ask Mr. Asonye to join you?

[snip]

MR. DREEBEN: Thank you, Your Honor. We took your admonition to heart, and we are very happy to have Mr. Asonye join us.

THE COURT: Good. I think that’s important for communications as well. Plus, you never know. If you have to try this case, you will have to try it before me. Mr. Asonye has some experience here. Is that right, Mr. Asonye?

MR. ASONYE: Yes, Your Honor.

THE COURT: And before me as well.

MR. ASONYE: Yes, Your Honor.

THE COURT: So he can tell you some interesting things.

[snip]

THE COURT: Of course, the difference is that if you did assign it to the Eastern District of Virginia, it wouldn’t come, Mr. Asonye, with a $10 million budget; would it?

You wouldn’t know that though, because most of the reports from the hearing have focused on exchanges like this, from Fox News:

Mueller’s team says its authorities are laid out in documents including the August 2017 scope memo – and that some powers are actually secret because they involve ongoing investigations and national security matters that cannot be publicly disclosed.

Ellis seemed amused and not persuaded.

He summed up the argument of the Special Counsel’s Office as, “We said this was what [the] investigation was about, but we are not bound by it and we were lying.”

He referenced the common exclamation from NFL announcers, saying: “C’mon man!” [my emphasis]

To be sure, Ellis was undeniably confrontational with Dreeben, in this and several other exchanges. But the Fox line, which it picked up from early reports, tells a distorted view of the hearing (even ignoring Ellis’ well known schtick of being confrontational in the court room).

First, the Fox representation is factually inaccurate in two ways. Here’s the transcript of the exchange Fox claims to have quoted directly.

DREEBEN: So it is not really appropriate to assume that the (b)(i) description is the factual statement that the regulations contemplate.

THE COURT: Well, I understand your argument, but let me characterize it and see if you find it as satisfying as you appear to indicate that you think it is: We said this is what the investigation was about. But we’re not going to be bound by it, and we weren’t really telling the truth in that May 17 letter.

I don’t watch pro football, but I used to enjoy the program that came beforehand where a bunch of players would get on and essentially make fun of everybody. But they would put on some ridiculous thing, and then they would all say in a chorus, Come on, man. [my emphasis]

Ellis was referring, explicitly, to the May 17 letter appointing Robert Mueller as special counsel and not, as Fox suggests, the August 2 Rosenstein memo that lays out what the Deputy Attorney General had included in Mueller’s scope by that point in time. The distinction is significant for the matter before the court, a two-part argument Manafort made that 1) the initial Mueller appointment was limited to Russia’s tampering and obstruction thereof, but the permission in the appointment to investigate anything “arising out of” that Russia investigation — which this prosecution had to be — was improper, and 2) that the August memorialization of Mueller’s authority incorporating the Ukrainian money laundering did not authorize this indictment because Mueller had improperly claimed the pre-existing investigation arose out of, rather than was subsumed into, the Russia investigation.

In a dispute in which the first issue is the memo appointing Mueller, Ellis is accusing Rosenstein of not incorporating everything he appointed Mueller to do in his May 17 statement, which Dreeben explained was done to hide the scope of the counterintelligence concerns from targets. That’s a claim backed by the government’s brief and the public Rosenstein testimony it cites.

Recognizing the need for confidentiality about the investigation, id. at 30, the Acting Attorney General “discussed that with [the Special Counsel] when he started” and has continued to have “ongoing discussion about exactly what is within the scope of his investigation,”

[snip]

The regulations do not provide that the factual statement must be made public.

The government brief argues that, because of his role in the campaign and his ongoing ties to Russians — including Oleg Deripaska, by name — the Manafort investigation falls under the original grant of authority. They make the “arises out of” argument only secondarily.

[E]ven assuming that paragraph (b)(i) does not cover all of the conduct charged in the Indictment—and, in the government’s view, it does—the conduct would fall within the scope of a matter that “arose or may arise directly from the investigation.”

Ellis’ concern that Rosenstein didn’t lay everything out in that first memo or might be hiding an ulterior motive of flipping Manafort go to two concerns that Dreeben (and Asonye’s presence) addressed head on. First, Ellis was concerned the Mueller team might be asserting it had unlimited power.

What we don’t want in this country is we don’t want anyone with unfettered power. We don’t want federal judges with unfettered power. We don’t want elected officials with unfettered power. We don’t want anybody, including the president of the United States, nobody to have unfettered power. So it’s unlikely you’re going to persuade me that the special prosecutor has unlimited powers to do anything he or she wants.

Though (again, given his reputation for beating up the side he plans to decide with) this line might be better understood as Ellis wanting to demonstrate a concern with the possibility that Mueller might think he has unfettered power.

Note, he includes the president in there.

Ellis also misstated, right as the discussion started, that the special counsel was not the government.

Let me ask the government — or not the government — the special counsel a few questions, Mr. Dreeben.

In correcting Ellis’ suggestion Mueller was not representing the government, Dreeben clarified that the Special Counsel was not operating under the Independent Counsel law that Ellis had elsewhere raised and seemed to be thinking of when suggesting they didn’t represent the government.

This is not the Independent Counsel Act that Your Honor was referring to in the conference that you spoke of. This is not a separate court-appointed prosecutor who’s operating under statutory independence. We are within the Department of Justice. We’re being supervised by an acting attorney general who has conferred upon us specific jurisdiction and who regularly is in a position to describe to us the metes and bounds of that.

To further establish this point the government notes — in both their brief and the hearing — that the Mueller team worked closely with the rest of DOJ in bringing the charges.

As explained above, every key step in this case has been authorized by the Acting Attorney General through ongoing consultation. Additionally, under the applicable rules, the Tax Division approved the tax-related charges. See 28 C.F.R. § 600.7(a) (Special Counsel must comply with DOJ rules, regulations, procedures, and policies); USAM § 6-4.200 (Tax Division must approve all criminal tax charges). And the Senior Assistant Special Counsel in charge of this prosecution is a long-time, career prosecutor with the internal authority to conduct this prosecution, separate and aside from his role in the Special Counsel’s Office.

While Ellis certainly made a public show of scolding the Mueller team claims, he did so in a hearing bracketed by his observation that Mueller had already done something — bring in Asonye — to assuage Ellis’ concerns about operating outside of normal DOJ procedure.

And while I hesitate to predict how Ellis will rule, I find the bracketing of the entire hearing with a focus on Asonye significant for two reasons. First, Ellis’ proposed remedy, if Mueller’s investigation were invalid, was to have EDVA prosecute the case (to which Downing suggested that that would make the search of his storage facility and home invalid, which for better and mostly worse is not how fourth amendment rulings work).

THE COURT: Let’s assume for a moment your argument that this delegation is in some way illegal. Why isn’t the right result simply to give to the Eastern District of Virginia’s U.S. Attorney’s Office — give it back to them and let them prosecute this indictment? Why isn’t that the right result?

MR. DOWNING: Well, the right result may be for the Department of Justice to finish the investigation they had started and make a determination as to whether or not to charge Mr. Manafort. But if, in fact, this order is defective, then Mr. Mueller did not have the authority of the U.S. Attorney to conduct a grand jury investigation, to get search warrants, or to return and sign an indictment.

THE COURT: All right. I think I understand.

Additionally, although many Manafort partisans view Ellis’ order that Mueller’s team give him an unredacted copy of the August 2 Rosenstein memo laying out everything that could be investigated as of that date as victory for Manafort, that actually falls far short of what Downing wanted, which was to have any other documentation showing the discussion behind appointing Mueller and approving subsequent steps thereafter.

MR. DOWNING: Just briefly, Your Honor. The one thing we would ask this Court to do before deciding the motion before the Court is to ask the government for what anybody who has had any experience with the Department of Justice knows exists, which is the written record. Where is the written record before Mr. Mueller was appointed? Where is the written record about the decision —

THE COURT: What do you mean by the written record?

MR. DOWNING: Mr. Rosenstein had a process he had to go through in order to determine that there was a conflict that gave rise to the appointment of special counsel, the specific matter that the special counsel was going to investigate in any additional jurisdiction he granted. It would all be written down somewhere. That’s how the Department of Justice works.

[snip]

THE COURT: All right. Is that what you’re — the record of identifying the conflict?

MR. DOWNING: I believe identification of the conflict, the matter that needed to be referred to a special counsel in order to — because of the conflict and the scope of the special counsel’s investigation, including any additional jurisdiction.

THE COURT: The May and August letters are the scope.

MR. DOWNING: That’s after the fact. You would expect that the Department of Justice, especially Mr. Rosenstein, would have had a memo before.

THE COURT: Why do you say that?

MR. DOWNING: Because in the Department of Justice generally, just in any situation —

THE COURT: Did you serve in the department?

MR. DOWNING: Fifteen years, five of which was under Mr. Rosenstein’s management. Mr. Rosenstein is a stickler for memos being written, for there to be a written record for the actions of the Department of Justice

In Rosenstein’s testimony and the government’s brief, they actually identify what the latter documents are: Urgent Reports documenting each major step, surely including the two searches on Manafort’s property.

The Special Counsel has an explicit notification obligation to the Attorney General: he “shall notify the Attorney General of events in the course of his or her investigation in conformity with the Departmental guidelines with respect to Urgent Reports.” 28 C.F.R. § 600.8(b). Those reports cover “[m]ajor developments in significant investigations and litigation,” which may include commencing an investigation; filing criminal charges; executing a search warrant; interviewing an important witness; and arresting a defendant.

So Downing specifically asked for (though not by name) the documentation that would have shown the back and forth discussions between Mueller and Rosenstein (and would have reflected Mueller’s compliance with the Urgent Reports requirement.

And Ellis didn’t grant that request. He asked only for the August 2 memo, not the Urgent Reports. That’s unsurprising — asking for the latter would have been a fairly breathtaking incursion on prosecutorial discretion.

But that suggests, at least thus far, Ellis is treating what he’s seeing as proper exercise of prosecutorial discretion.

The Quid Pro Quo: a Putin Meeting and Election Assistance, in Exchange for Sanctions Relief (Part Two in a Series)

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As I explained in Part One of this series, I think the Mueller questions leaked by the Trump people actually give a far better understanding of a damning structure to the Mueller investigation — one mapping out cultivation, a quid pro quo, and a cover-up — than the coverage has laid out. This post will lay out how, over the course of the election, the Russians and Trump appear to have danced towards a quid pro quo, involving a Putin meeting and election assistance in exchange for sanctions relief if Trump won (as noted, the Russians dangled real estate deals to entice Trump based on the assumption he wouldn’t win).

April 27, 2016: During the campaign, what did you know about Russian hacking, use of social media, or other acts aimed at the campaign?

Given the structure of George Papadopoulos’ plea, it’s highly likely Mueller knows that Papadopoulos passed on news that the Russians had thousands of Hillary emails they planned to release to help Trump to people in the campaign. Papadopoulos could have passed on that news to Stephen Miller and Corey Lewandowski as early as April 27. On the same day, Papadopoulos helped draft Trump’s first foreign policy speech, which Papadopoulos reportedly told Ivan Timofeev signaled a willingness to meet.

Between the time the GRU first exfiltrated DNC emails in April and the election, Trump invoked “emails” 21 times on Twitter (usually to refer to emails from Hillary’s server). The first of those times came on June 9, less than an hour after the Trump Tower meeting. The most famous of those came on July 27, when Trump addressed Russia directly.

Earlier in the day, Trump had called on Russia to release the emails not to the FBI, but to the press.

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

The timing may reflect awareness among some in the campaign that the call to Russia was a step too far legally. (h/t TC for the addition)

That Trump’s email comments pertain mostly to Hillary’s home-based server doesn’t actually exonerate him. Right after the DNC release (and therefore the July 27 Trump tweet), GOP rat-fucker Peter Smith started reaching out to Russian hackers in hopes of finding hacked versions of those emails. His support documents named Steve Bannon, Kellyanne Conway, Sam Clovis, and Mike Flynn. If those people actually learned of the effort (there’s reason to believe Smith was just overselling the ties to the campaign), it’s possible that Trump learned about it as well.

As to social media, while it has gotten virtually no attention, the reference to three Florida-based Trump campaign officials in the Internet Research Agency indictment suggests further investigative interest in them.

[T]here are three (presumed) Americans who, both the indictment and subsequent reporting make clear, are treated differently in the indictment than all the other Americans cited as innocent people duped by Russians: Campaign Official 1, Campaign Official 2, and Campaign Official 3. We know, from CNN’s coverage of Harry Miller’s role in building a cage to be used in a fake “jailed Hillary” stunt, that at least some other people described in the indictment were interviewed — in his case, for six hours! — by the FBI. But no one else is named using the convention to indicate those not indicted but perhaps more involved in the operation. Furthermore, the indictment doesn’t actually describe what action (if any) these three Trump campaign officials took after being contacted by trolls emailing under false names.

So Mueller may be pursuing whether there was state-level coordination going on, and if so, how far up the campaign chain of command knowledge of that coordination extended.

May 31, 2016: What discussions did you have during the campaign regarding any meeting with Mr. Putin? Did you discuss it with others?

On June 16, 2015, the day Trump announced his campaign, the Agalarovs offered to serve as an intermediary between him and Putin.

Then, starting at least as early as March 31, 2016 (with Trump’s first foreign policy meeting), his aides started floating pitches for meetings with increasingly senior campaign officials that would hypothetically lead up to one between Trump and Putin.

Those include at least:

  • The George Papadopoulos thread, spanning from March 21 through August 15
  • The Carter Page thread, including his Moscow trip in July, and possibly continuing through his December Moscow trip
  • The NRA thread, focusing on the NRA meeting in Kentucky in May; NRA’s longer outreach includes Trump associates John Bolton and David Clarke

We know Trump was present and did not object when Papadopoulos pitched this in the May 31 meeting. Several of the other entrees went through Don Jr. Many of the offers got briefed at least as far as Jared Kushner and Paul Manafort. We don’t know how many of the other offers he learned about. We just know that years earlier he had joked about becoming Putin’s best friend, and over the course of the campaign, Russian intermediaries made repeated, persistent efforts to work towards a meeting between Trump and Putin, with a meeting between Agalarov representatives (who, again, had offered to serve as intermediaries with Putin when Trump kicked off the campaign) and the most senior people on the campaign happening just as Trump sealed up the nomination.

May 31, 2016: What discussions did you have during the campaign regarding Russian sanctions?

This is an open-ended question that might pose particular problems for Trump given the misleading statement claiming the June 9 meeting was about adoptions and not the Magnitsky sanctions. More interesting still are hints that Mueller sees a signaling going back and forth involving Papadopoulos; some of this may have involved signaling a willingness to provide sanctions relief.

Both Aras Agalarov and Natalia Veselnitskaya followed up after the election pushing for sanctions relief.

June 9, 2016: When did you become aware of the Trump Tower meeting?

Sam Nunberg has suggested Trump probably learned of the Trump Tower meeting before it happened. While he is unreliable on that point, the original June 3, 2016 email Rob Goldstone sent to Don Jr suggests reaching out to Trump’s assistant Rhona Graff.

I can also send this info to your father via Rhona, but it is ultra sensitive so wanted to send to you first.

Democrats suspect that between two calls Don Jr had with Emin Agalarov about the meeting on June 6, 2016, he called his dad.

Trump Jr.’s phone records show two calls to and from the same Russian number on June 6, 2016.62 The first call occurred at 4:04 pm on June 6, 2916 – just 21 minutes after Goldstone emailed Trump Jr. to say that Emin Agalarov was “on stage in Moscow but should be off within 20 minutes so I am sure can call. [emphasis added]” 63 At 4:38 pm, Trump Jr emailed Goldstone, “Rob, thanks for the help.”64

This documentary evidence indicates that a call likely took place between Trump Jr. and Emin Agalarov. During his interview, Trump Jr. confirmed that the Russian phone number belonged to Agalarov, though he claimed to not recall whether he actually spoke with him. Rather, despite one of the two calls reflecting a two-minute connection, Trump Jr. suggested that Agalarov may have left voice messages.65

The phone records also show a “blocked” number at 4:27 pm, between the two calls to and from Emin Agalarov. Trump Jr. claimed he did not know who was associated with the blocked number.66 While the Committee has not pursued leads to determine who called Trump Jr. at this crucial time from a blocked number, Corey Lewandowski told the Committee that Mr. Trump’s “primary residence has a blocked [phone] line.” 67

Mueller, of course, almost certainly has the phone records the Democrats weren’t able to obtain.

Finally, Steve Bannon has stated that he’s certain Don Jr “walk[ed] these jumos up to his father’s office on the twenty-sixth floor” on the day of the meeting. There’s reason to believe Ike Kaveladze and Goldstone could have done so, including the new piece of evidence that “Kaveladze left [a meeting with Rinat Akhmetshin and Natalia Veselnitskaya] after a few minutes to take a call from Agalarov to discuss the meeting.”

The day after the meeting — and four days before Trump’s birthday — Agalarov sent Trump an expensive painting as a present.

The June 9 meeting is, as far as is public, the most important cornerstone in a presumed quid pro quo. Russians offered unnamed dirt that Don Jr seemed to know what it entailed even before speaking to Emin Agalarov personally. Having offered dirt, four Russians — including two representatives of Trump’s long-time handler Aras Agalarov — laid out a pitch to end the Magnitsky sanctions. And less than a week later, a presumed Russian agent released the first dirt stolen from Hillary Clinton.

July 7, 2016: What knowledge did you have of any outreach by your campaign, including by Paul Manafort, to Russia about potential assistance to the campaign?

We don’t have many details on what Mueller knows about Manafort’s requests for help on the campaign. We do know he remained in close touch with Russians via someone the FBI believed was a Russian intelligence agent, Konstantin Kilimnik, through whom he remained in communications with Russian oligarch Oleg Deripaska. Deripaska is named in some court documents in a way that suggests his relationship with Manafort may be the still hidden third prong of investigation into Manafort approved by August 2, 2017.

Starting in April, Manafort and Kilimnik (whom Rick Gates and therefore presumably Manafort knew was a former GRU officer), exchanged a series of cryptic emails, suggesting that Manafort might be able to pay off the $20 million he owed Deripaska with certain actions on the campaign. In an email sent on July 7, Manafort offered to provide briefings on the campaign to Deripaska. On or around August 2, Manafort and Kilimnik met in person at the Grand Havana Club, in Kushner’s building at 666 5th Avenue. Both deny that anything about the campaign came up. Shortly after this meeting, one of Deripaska’s jets came to Newark, and Russian opposition figure Viktor Navalny has claimed to have proof the jet went from there to a meeting between Deripaska and Russian deputy prime minister Sergei Prikhodko.

An August 2017 report describes intercepts picking up “Russian operatives discussing their efforts to work with Manafort, … relay[ing] what they claimed were conversations with Manafort, encouraging help from the Russians.”

There’s one more area of potential assistance I find of interest. Since January, we’ve been getting hints that Oleg Deripaska has some tie to the Steele dossier, possibly through a lawyer he and Steele share. I’ve raised repeated concerns that the Russians learned about the dossier and found ways to feed Steele disinformation. If they did, the disinformation would have led Democrats to be complacent about the hacks that targeted them. And whether or not the dossier is disinformation (and whether or not Deripaska had a role in that, if true), Paul Manafort coached Reince Priebus on how to attack the dossier as a way to discredit the investigation into the campaign’s ties with Russia.

With regards to this Manafort question: remember that Rick Gates flipped on February 23, and the questions date to early March. So Gates may have proffered confirmation about these details. In any case, Mueller likely has learned far more about them two months after Gates flipped.

July 10-12, 2016: What involvement did you have concerning platform changes regarding arming Ukraine?

The Majority HPSCI Russia Report explains that the RNC platform was changed by staffers at the convention based off Trump’s public statements on sanctions.

[Rick] Dearborn generated a memorandum, dated August 1, 2016, outlining a detailed sequence of events that occurred between July 10 and 12, 2016. As part of that memo, J.D. Gordon created a timeline that noted candidate Trump’s policy statements–including at a March 31, 2016, national security meeting–served as the basis for the modification of [Diana] Denman’s amendments. Gordon’s timeline made it clear that the change was initiated by campaign staffers at the convention–not by Manafort or senior officials.

J.D. Gordon has not confirmed that he was asked about this, but he surely was. I would expect Mueller to have tested the timeline Gordon laid out in summer 2016 (when the platform change was a big political issue) against the testimony and communications records of everyone else involved.

Of course, by asking the question in this fashion, Mueller doesn’t reveal what he has already confirmed about the platform changes.

August 5, 2016: What did you know about communication between Roger Stone, his associates, Julian Assange or WikiLeaks?

After multiple public statements that the Russians were behind the hack-and-leak, on August 5, 2016 (after traveling from NY to LA to his home in FL), Roger Stone wrote a column claiming to believe that Guccifer 2.0 was a hacktivist with no ties to Russia. Stone’s purportedly changed beliefs about Guccifer 2.0 coincide with an August 4 claim he made in an email to Sam Nunberg that he had met with Julian Assange the night before. Stone’s claimed belief that Guccifer 2.0 is not Russian is key to his denials of any involvement or pre-knowledge of hack-and-leak events. It also kicked off an alternative story that others, up to and including Trump, have adopted to excuse their own embrace of the stolen emails. In other words, a key prong in the plausible deniability the Russians built into the hack-and-leak campaign came from long-time Trump associate Roger Stone, after a dramatic and unexplained change in beliefs (Lee Stranahan, who used to work for Breitbart and now works for Sputnik, has claimed some credit for the change, and given how lucid the August 5 column is, someone had to have helped Stone write it).

Ten days later, after Stone had called on Twitter to let him out of Twitter jail, Guccifer 2.0 and Stone started exchanging (fairly innocuous) DMs.

There are events both before and after that which suggest Stone — probably through more interesting go-betweens than Randy Credico — sought information on what dirt Assange and Wikileaks had, and what and when planned to do with it.

Much has been made, especially in the DNC lawsuit, about Stone’s seeming prediction that “it would soon be Podesta’s time in the barrel.” Perhaps that’s true (and Stone’s explanation for the tweet is garbage), but any explanation of Stone’s supposed prediction needs to acknowledge that he more often predicted Wikileaks would release Clinton Foundation emails, not Podesta ones, that he got the timing somewhat wrong, and that he didn’t dwell on the Podesta emails at all once Wikileaks started releasing them (preferring, instead, to talk about Bill Clinton’s lady problems). Still, that may reflect Stone involvement in the Peter Smith operation, and efforts to get WikiLeaks to release purported Clinton Foundation emails passed on via hackers.

That Mueller is even asking this suggests (if the several grand jury witnesses in recent months dedicated to it don’t already) that Mueller has a pretty good idea that Stone’s communications were more extensive than his denials let on. That he thinks Stone may have shared that information with Trump is all the more interesting.

All of which is to say that the known answers to Mueller’s questions map out a quid pro quo set up during the election, in which Russians offered a Putin meeting and dirt on Hillary, with the expectation that Trump would lift the Magnitsky sanctions if he won (and would get a Trump Tower in Moscow if he lost). I suspect there are other pieces to the quid pro quo, dealing with Ukraine and Syria. But certainly the June 9 meeting set up an understanding: dirt in exchange for Magnitsky relief. The release of the Guccifer 2.0 emails may indicate the Trump camp provided some signal they had formally accepted the offer.

Update: Fixed syntax in last paragraph, h/t LT.

RESOURCES

These are some of the most useful resources in mapping these events.

Mueller questions as imagined by Jay Sekulow

CNN’s timeline of investigative events

Majority HPSCI Report

Minority HPSCI Report

Trump Twitter Archive

Jim Comey March 20, 2017 HPSCI testimony

Comey May 3, 2017 SJC testimony

Jim Comey June 8, 2017 SSCI testimony

Jim Comey written statement, June 8, 2017

Jim Comey memos

Sally Yates and James Clapper Senate Judiciary Committee testimony, May 8, 2017

NPR Timeline on Trump’s ties to Aras Agalarov

George Papadopoulos complaint

George Papadopoulos statement of the offense

Mike Flynn statement of the offense

Internet Research Agency indictment

Text of the Don Jr Trump Tower Meeting emails

Jared Kushner’s statement to Congress

Erik Prince HPSCI transcript

THE SERIES

Part One: The Mueller Questions Map Out Cultivation, a Quid Pro Quo, and a Cover-Up

Part Two: The Quid Pro Quo: a Putin Meeting and Election Assistance, in Exchange for Sanctions Relief

Part Three: The Quo: Policy and Real Estate Payoffs to Russia

Part Four: The Quest: Trump Learns of the Investigation

Part Five: Attempting a Cover-Up by Firing Comey

Part Six: Trump Exacerbates His Woes

Paul Manafort’s iPod (and Other Apple Product) Habit Rivals His Antique Rug Habit

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In addition to a misleading motion to conduct an investigation into leaks about the investigation into him, Paul Manafort submitted similar (but not identical) motions to the motions he submitted to throw out the fruits of searches of his storage facility and condo in the DC case.

In addition to one or two different precedents (reflecting the different circuit), the biggest difference in the condo search motion is that Manafort lists all the devices the FBI took from his condo. The disorderly list of his devices includes at least 20 Apple devices:

  • 4 DVD discs
  • 7 external hard drives
  • 12 SD cards
  • 7 memory sticks
  • 1 micro SD card
  • 1 iPod
  • 3 compact flash cards
  • 1 MacBook Air hard drive
  • 2 iPads
  • 9 thumb drives
  • 1 iPhone
  • 1 micro vault pro
  • 1 DEWF_COMBO1: A 1TB (containing forensic images and device extractions from rooms: C, F, K, and Q)
  • 7 iPods
  • 1 iMac (including 1 Solid State Drive (SSD) and 1 Hard Disk Drive (HDD))
  • 4 iPhones
  • 1 SD card
  • 12 digital flash drives
  • 1 Macbook Air
  • 2 iPad Minis
  • 2 micro SD HC cards
  • 2 SD HC cards
  • 1 ultra-SD XC I card [my emphasis]

I raise this not just because Manafort appears to collect Apple devices like he also collects (er, launders) antique rugs. But also for another detail.

In the original filing, Manafort suggested that an Agent could not possibly have believed that an iPod would contain any evidence.

For example, the search warrant inventory of electronic devices seized or imaged includes things such as an Apple iPod music device and some Apple iPod Touch music and video devices. No agent could have reasonably believed that he was seizing electronic devices used in the commission of the subject offenses.

Not so, I argued.

Except that’s not right: you can use Signal on iPods, so these might have stored communication. Which would be precisely the kind of thing that would be of most interest: devices that could be used for encrypted comms that would not show up on cell records.

See this piece for how communicating using an iPod over WiFi is the most secure way to communicate.

The government was similarly unimpressed with Manafort’s focus on his iPods.

Manafort’s contention again rests on his mistaken reading of the warrant—that is, that it authorized only the seizure of computers and storage media that were instrumentalities of the Subject Offenses. As explained above, however, the warrant also authorized agents to search “storage media (such as hard disks or other media that can store data)” for the 11 categories of records enumerated in Attachment B. See Doc. 264-1 Attach. A. Devices such as the iPod and iPod Touch plainly qualify as “storage media,” since they can store files such as contact lists and can even be used as backup drives. See, e.g., See United States v. Ballard, 551 Fed. Appx. 33, 36 (3d Cir. 2014) (unpublished) (personal information relevant to identity-theft scheme found on iPod); United States v. Okeayainneh, No. 11-cr-87, 2011 WL 2457395, at *10 (D. Minn. May 13, 2011) (affidavit established probable cause to believe that an iPod was among the devices used to store and transmit information in a fraud and identity-theft scheme). Because those devices are capable of storing evidence that falls within the scope of the warrant, the agents properly imaged those devices or took them for offsite review under Attachment A to the warrant.

The government goes on to note that even if they shouldn’t have taken the iPods, the only recourse Manafort has is to suppression of evidence submitted at trial. And the government won’t be using evidence from the iPods at trial in this case.

In any event, Manafort would not be entitled to suppression even if he were correct. Absent evidence that the government flagrantly disregarded the terms of the warrant (which Manafort does not allege), the remedy for the seizure of materials outside the scope of a warrant is suppression of the improperly seized materials. See Maxwell, 920 F.2d at 1034 n.7. Here, Manafort identifies only the two iPod devices as supposedly falling outside the warrant’s terms, but the government will not be introducing any evidence obtained from those devices at the trial in this case. There is, in short, nothing to suppress. [my emphasis]

I’m a bit confused by the government reference to “two iPod devices,” because Manafort’s new list identifies eight. The discrepancy may arise from iPods that were taken versus those that were simply imaged.

In any case, Manafort cites the government in his EDVA motion, again focusing on a handful — whether a big or small handful — of iPods as proof that the search was improper. But he doesn’t cite the government motion directly.

In his opposition to Mr. Manafort’s motion to suppress evidence seized from his residence filed in the related matter pending in the U.S. District Court for the District of Columbia, the Special Counsel stated that he would not seek to introduce evidence from the iPods seized from the residence, see United States v. Manafort, Dkt. No. 17-cr-201 (D.D.C.) Doc. No. 284 at p. 18, further underscoring the unreasonableness of their seizure in the first place.

Rather than stating that “the government will not be introducing any evidence obtained from those devices at the trial in this case,” Manafort instead claims that “the Special Counsel stated that he would not seek to introduce evidence from the iPods seized from the residence.”

Mueller’s team only said they wouldn’t be introducing evidence from the iPods “in this case,” not that they wouldn’t introduce evidence from them “in some future case.”

Manafort is likely to face criminal charges in at least one more case (as indicated by the redacted — to us — bullet in several documents shared more broadly with Manafort). That case is presumably the hack-and-leak conspiracy — the one in which Manafort may have reached out “to Russia about potential assistance to the campaign.” As a reminder, unlike the storage unit warrant, the condo search warrant included evidence about the June 9, 2016 meeting.

Mueller’s team said nothing about introducing evidence from the iPods Manafort is so hung up about in some other trial.

Given how unlikely Manafort is to succeed with these suppression motions, they may pertain as much to evidence that will be used for the hack-and-leak conspiracy as they do to these cut-and-dry money laundering ones. (Michael Cohen’s concern about the FBI searches in NY may similarly reflect concerns about evidence that can be used in the larger conspiracy cases.)

And in both jurisdictions, Manafort seems awfully worried about his iPod devices.

Mueller Offers Trump an Open Book Test — Trump Should Refuse

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Someone (possibly named Rudy 911) leaked the questions Robert Mueller wants to ask Trump to the NYT. The NYT, as they’ve been doing for some time, are presenting the president’s exposure in terms of obstruction.

Except that of 44 questions as presented by NYT, 13 are explicitly not about obstruction, and several of the obstruction questions are, I’m fairly sure, about “collusion.”

  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?

Indeed, the questions seem almost an attempt to pit Trump’s word against Jim Comey’s (questions 6 through 23) as a way to lure him into answering questions that even as written will sink Trump. And that’s assuming there’s not some ulterior motive to the question (and for some of the most open-ended questions — like 33,39, 40, and 41 — I suspect, there is).

So yeah, if Trump has any lawyers still working for him, they should advise him not to take this interview.

But when that happens, it should badly undercut Trump’s claims there was no collusion.

 

On Manafort’s Referral of the Papadopoulos Offer(s)

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I want to return to something from the George Papadopoulos plea agreement in light of last week’s HPSCI Russia reports. In it, there was a footnote describing Paul Manafort’s response to Papadopoulos’ email about efforts to set up a meeting between Trump and Putin.

On or about May 21, 2016, defendant PAPADOPOULOS emailed another high-ranking Campaign official, with the subject line “Request from Russia to meet Mr. Trump.” The email included the May 4 MFA Email and added: “Russia has been eager to meet Mr. Trump for quite sometime and have been reaching out to me to discuss.”2

2 The government notes that the official forwarded defendant PAPADOPOULOS’s email to another Campaign official (without including defendant PAPADOPOULOS) and stated:

“Let[‘]s discuss. We need someone to communicate that DT is not doing these trips. It should be someone low level in the campaign so as not to send any signal.”

The Majority HPSCI Report explains the email, first, by noting that it accompanied another one Papadopoulos forwarded regarding a proposed Greek meeting. Then it described Gates and Manafort referring the requests for “these meetings” to a correspond to both.

(U) Although the Committee has no information to indicate that Papadopoulos was successful in setting up any meetings between the Trump campaign and the Russian government, he worked with campaign chief executive Steve Bannon to broker a September 2016 meeting between candidate Trump and Egyptian president Abdel Fatah el-Sisi.181 Trump was apparently pleased with the meeting, which he described In an Interview as “very productive,” describing el-Sisi as “a fantastic guy.”182

(U) While on a trip to Athens, Greece in May 2016, Papadopoulos sent an email to Manafort stating that he expected to soon receive “an official invitation for Mr. Trump to visit Greece sometime this summer should his schedule allow.”183 In the same email to Manafort, Papadopoulos also forwarded a meeting Invitation from Ivan Timofeev, Director or [sic] Programs for the Russian International Affairs Council, and claimed that “Russia has been eager to meet Mr. Trump for quite sometime and have been reaching out to me to discuss. thought it would be prudent to send to you.”184

(U) As of May 2016, Manafort had not yet been elevated to campaign chairman, but had a long track record of work abroad. Manafort forwarded Papadopoulos’ email to his business and campaign deputy [Rick Gates] noting that we need someone to communicate that D[onald] T[rump] is not doing these trips.” 185 Manafort and [Gates] agreed to assign a response of a “general letter” to “our correspondence coordinator.” the person responsible for “responding to all mail of non-importance.”186

Curiously, this account is based off Gates’ production; it should exist in the campaign’s production as well.

The clarification would seem to suggest that Manafort was treating all requests for Trump meetings as formalities, to be responded to with a regrets letter sent by a low level clerk. But it still doesn’t explain what Manafort meant when he said “It should be someone low level in the campaign so as not to send any signal.”

But there’s another detail that may undermine the claim that Manafort responded to all requests for Russian meetings with regrets. As the Minority HPSCI Report makes clear, Manafort received another request for a Trump-Putin meeting within days of the Papadopoulos one, one tied to Aleksandr Torshin’s trip to the NRA meeting.

On May 10, 2016, Erickson reached out to Rick Dearborn, a longtime senior advisor to Jeff Sessions and a senior campaign official:

“Switching hats! I’m now writing to you and Sen. Sessions in your roles as Trump foreign policy experts / advisors. […] Happenstance and the (sometimes) international reach of the NRA placed me in a position a couple of years ago to slowly begin cultivating a back-channel to President Putin’s Kremlin. Russia is quietly but actively seeking a dialogue with the U.S. that isn’t forthcoming under the current administration. And for reasons that we can discuss in person or on the phone, the Kremlin believes that the only possibility of a true re-set in this relationship would be with a new Republican White House.”44

The email goes on to say that Russia planned to use the NRA’s annual convention to make “first contact” with the Trump campaign and that “Putin is deadly serious about building a good relationship with Mr. Trump. He wants to extend an invitation to Mr. Trump to visit him in the Kremlin before the election.”45

Dearborn communicated this request on May 17, 2016 to the highest levels of the Trump campaign, including Paul Manafort, Rick Gates, and Jared Kushner. The effort to establish a back-channel between Russia and the Trump campaign included a private meeting between Torshin and “someone of high rank in the Trump Campaign.”46 The private meeting would take place just prior to then-candidate Trump’s speech to the NRA. As explained in Dearborn’s email, such a meeting would provide Torshin an opportunity “to discuss an offer he claims to be carrying from President Putin to meet with DJT. They would also like DJT to visit Russia for a world summit on the persecution of Christians at which Putin and Trump would meet.”47

The account of the NRA outreach is a bit muddled between the two reports. But Kushner passed on a related one from Rick Clay — not because he didn’t want to take the meeting, but because he worried they couldn’t verify the back channel.

“Pass on this. A lot of people come claiming to carry messages. Very few we are able to verify. For now I think we decline such meetings,” as well as “(b)e careful.”

But as both reports make clear, Don Jr did meet, briefly, with Torshin, though there is no known record of their face-to-face exchange.

The Majority’s finding on this topic affirms that Trump Jr. met with a Russian government official, Alexander Torshin, at the event, but conveniently concludes that “the Committee found no evidence that the two discussed the presidential election.”48 As with many findings in the report, this relies solely on the voluntary and self-interested testimony of the individual in question, in this case Trump Jr. The Majority refused multiple requests by the Minority to interview witnesses central to this line of inquiry, including Torshin, Butina, Erickson, and others.

These accounts come from the Sessions and Dearborn production. Again, both should also be available via the campaign, but that’s not where they came from, and the NRA requests were also sent to Manafort and Gates (so Gates’ production should include any response from Manafort).

As noted in both reports, Don Jr. met Torshin briefly on May 19, two days after the request for a high level meeting got passed onto senior people in the campaign.

Both reports separate the timelines out by source — and the Majority one presents events out of order, which adds to the confusion. But here’s how the two outreach efforts look.

May 4 [this gets forwarded to Lewandowski, Clovis, and Manafort by May 21]:

Timofeev to Papadopolous “just talked to my colleagues from the MFA. [They are] open for cooperation. One of the options is to make a meeting for you at the North America Desk, if you are in Moscow.”

Papadopolous to Timofeev: “Glad the MFA is interested.”

May 4, Papadopoulos to Lewandowski (forwarding Timofeev email):

“What do you think? Is this something we want to move forward with?”

May 5: Papadopoulos has a conversation with Sam Clovis, then forwards Timofeev email, with header “Russia updates.”

May 8, Timofeev to Papadopoulos:

Emails about setting Papadopoulos up with the “MFA head of the US desk.”

May 10, Paul Erickson email to Rick Dearborn proposes a meeting between Torshin and “someone of high rank in the Trump Campaign … to discuss an offer [Torshin] claims to be carrying from President Putin to meet with DJT.”

May 13, Mifsud to Papadopoulos:

“an update” of what they had discussed in their “recent conversations,” including: “We will continue to liaise through you with the Russian counterparts in terms of what is needed for a high level meeting of Mr. Trump with the Russian Federation.”

May 14, Papadopoulos to Lewandowski:

“Russian govemment[] ha[s] also relayed to me that they are interested in hostingMr. Trump.”

May 16: Rick Clay email to Rick Dearborn mentions an “overture to Mr. Trump from
President Putin.” Kushner responds, “Pass on this. A lot of people come claiming to carry messages. Very few we are able to verify. For now I think we decline such meetings.”

May 21, Papadopoulos to Paul Manafort, forwarding May 4 email:

“Request from Russia to meet Mr. Trump”

“Regarding the forwarded message, Russia has been eager to meet Mr. Trump for quite some time and have been reaching out to me to discuss.”

May 21, Manafort forwards Papadopoulos email to Rick Gates:

“Lets discuss. We need someone to communicate that DT is not doing these trips. It should be someone low level in the campaign so as not to send any signal.”

As noted, there should be more in the Gates production to describe what Manafort was up to, if he was indeed opposed to meetings themselves.

Of course, we don’t have that — though Mueller does have Gates wrapped up in a cooperation agreement.

Meanwhile, Don Jr kept doing meetings with Russians he would go on to disclaim. And weeks after all these invitations for high level meetings, he, Kushner, and Manafort took a meeting with someone all three had reason to trust, Aras Agalarov’s representatives.

 

Mueller’s Entirely Redacted Three Bullets and a Theory of the Case

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In this post, I showed how the list of crimes for which Paul Manafort was being investigated mushroomed between the time FBI searched an Alexandria storage locker on May 27, 2017 and the time they searched his home using a no-knock warrant on July 27, 2017.

As a threshold matter, between May and July 2017, the scope of crimes being investigated mushroomed, to include both the fraudulent loans obtained during the election and afterwards, as well as foreign national contributions to an election, with a broad conspiracy charge built in.

Compare the list of crimes in the storage unit affidavit:

  • 31 USC 5314, 5322 (failure to file a report of foreign bank and financial amounts)
  • 22 USC 618 (Violation of FARA)
  • 26 USC 7206(a) (filing a false tax return)

With the list in the residence affidavit:

  • 31 USC 5314, 5322
  • 22 USC 611 et seq (a broader invocation of FARA)
  • 26 USC 7206
  • 18 USC 1014 (fraud in connection with the extension of credit)
  • 18 USC 1341, 1343, 1349 (mail fraud and conspiracy to commit mail fraud)
  • 18 USC 1956 and 1957 (money laundering)
  • 52 USC 30121 (foreign national contributions to an election)
  • 18 USC 371 and 372 (conspiracy to defraud the US, aiding and abetting, and attempt to commit such offenses)

So this motion to suppress would suppress both evidence used to prosecute Manafort in the EDVA case, as well as the eventual hack-and-leak conspiracy.

And in addition to records on Manafort, Gates’, and (another addition from the storage unit warrant), the warrant permits the seizure of records tied to the June 9 meeting and Manafort’s state of mind during all the enumerated crimes (but that bullet appears right after the June 9 meeting one).

It also includes an authorization to take anything relating to Manafort’s work for the foreign governments, including but not limited to the Ukrainians that have already been charged, which would seem to be a catchall that would cover any broader conspiracies with Russia.

This makes sense. The June 9 story broke in July 2017 based off documents that Jared Kushner and Manafort had provided to Congress in June — though I do wonder whether there were any records relating to the meeting in the storage unit.

I also noted that Manafort seemed particularly worried about several things in the later search — such as that the government took stuff pertaining to his state of mind, that the FBI seized his iPods, and that they hadn’t given anything back.

In this post, I noted that Rod Rosenstein appeared to have included a third bullet in his description of the crimes that Robert Mueller could investigate Manafort for in his August 2, 2017 memo, written just after the later search.

Now consider this detail: the second bullet describing the extent of the investigation into Manafort has a semi-colon, not a period.

It’s possible Mueller used semi-colons after all these bullets (of which Manafort’s is the second or third entry). But that, plus the resumption of the redaction without a double space suggests there may be another bulleted allegation in the Manafort allegation.

There are two other (known) things that might merit a special bullet. First, while it would seem to fall under the general election collusion bullet, Rosenstein may have included a bullet describing collusion with Aras Agalarov and friends in the wake of learning about the June 9 Trump Tower meeting with his employees. More likely, Rosenstein may have included a bullet specifically authorizing an investigation of Manafort’s ties with Oleg Deripaska and Konstantin Kilimnik.

The Mueller memo actually includes a specific reference to that, which as I’ve noted I will return to.

Open-source reporting also has described business arrangements between Manafort and “a Russian oligarch, Oleg Deripaska, a close ally of President Vladimir V. Putin.”

The latter might be of particular import, given that we know a bunch of fall 2017 interviews focused on Manafort’s ties to Deripaska and the ongoing cover-up with Kilimnik regarding the Skadden Arps report on the Yulia Tymoshenko prosecution.

At a recent court hearing, Manafort’s team confirmed there is a third bullet (which is unredacted to them), and the government seemed to confirm (with their insistent refusal to share) that there are other documents laying out Rosenstein’s authorizations for the investigation.

Last night, the government responded to the Manafort challenges (response to Bill of Particulars, response to search of storage locker, response to search of condo).

Aside from a bunch of subtle details showing that Mueller continues to work closely with FBI Agents on appropriate task forces and US Attorneys officers, it includes these three redacted bullets laying out the evidence supporting probable cause for the crimes for which FBI is investigating Manafort.

Now, there’s not necessarily a correlation between those three bullets and the three bullets we now know are in Rosenstein’s memo. I say that, most of all, because the first of Rosenstein’s bullets pertains to the general “collusion” investigation.

  • Committed a crime or crimes by colluding with Russian government officials with respect to the Russian government’s efforts to interfere with the 2016 election for President of the United States, in violation of United States law;
  • Committed a crime or crimes arising out of payments he received from the Ukrainian government before and during the tenure of President Viktor Yanukovych.

As I noted in my post speculating what the third might be, it might include either more details on the then-recently disclosed June 9 meeting, or it might provide more evidence of the way that Manafort worked with Oleg Deripaska, the former of which especially might fit under the election bullet. A likely third bullet is also the more recent money laundering Manafort allegedly conducted, as he tried to use mortgages to stave off financial ruin, which gets included in the expanded list of crimes for which Manafort was being investigated.

In any case, the affidavit (and therefore these three paragraphs) presumably lay out probable cause to support all three of Rosenstein’s bullets:

  • The Ukraine-based money laundering at issue in the existing DC indictment — showing a long-term hidden relationship with Russian-backed entities
  • Manafort’s recent attempts to remain liquid as reflected in the EDVA indictment — showing he had an incentive to do crazy things to make money
  • Efforts to “collude” with Russia, as reflected in the Trump Tower meeting

This is as much as what Amy Berman Jackson suggested in the most recent hearing (the one where Manafort confirmed there was a third bullet).

So perhaps, those three redacted bullets lay out the theory of the case: Paul Manafort had long-standing ties to Russian oligarchs and an urgent need to continue receiving their money when four Russians walked into Trump’s campaign proposing dirt on Hillary in exchange for sanctions relief.