As Knewz first reported and AP has now matched, Paul Manafort was pulled from a flight to Dubai on Sunday because his passport was revoked.
Former Trump adviser Paul Manafort was removed from a plane at Miami International Airport before it took off for Dubai because he carried a revoked passport, officials said Wednesday.
Miami-Dade Police Detective Alvaro Zabaleta confirmed that Manafort was removed from the Emirates Airline flight without incident Sunday night but directed further questions to U.S. Border and Customs Protection. That agency did not immediately respond to an email Wednesday seeking comment.
A lawyer who has represented Manafort did not immediately return a call and email seeking comment Wednesday.
As a reminder, Manafort’s pardon did not include his actions in an August 2, 2016 meeting with alleged Russian spy Konstanin Kilimnik, at which he seemingly traded his strategy to win the election for $19 million in financial benefit and a commitment to help carve up Ukraine.
Nor was Manafort pardoned for his efforts, which continued at least until he was arrested, to help Kilimnik carve up Ukraine to Russia’s liking.
Nor was Manafort pardoned for his role in all the influence-peddling that Rudy Giuliani was involved with in Ukraine through 2020.
This was three days ago. The fact that Sean Hannity has not been wailing about the poor treatment of Manafort since suggests either that there’s not a good way to spin it, or that Manafort has some reason to want to keep this quiet.
Update: NBC’s Tom Winter says that, contrary to other reports, he was simply not permitted to board and that he can apply for a new passport. It’s not clear why he speaks of a “new investigation.”
https://www.emptywheel.net/wp-content/uploads/2018/07/Paulie.jpg600476emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2022-03-23 11:04:112022-03-23 11:53:10Paul Manafort Prevented from Flying to Dubai
All too often, both the Putin-apologist horseshoe left and some good faith members of the anti-war left have adopted a single frame to think of Vladimir Putin’s decision to invade Ukraine: NATO.
In the sloppiest versions, the idea is that Bill Clinton provided “guarantees” to Putin that NATO would not expand, and since NATO has expanded, the US bears all the responsibility for Putin’s invasion of Ukraine.
NATO is undoubtedly a big part of Putin’s grievance. Fiona Hill describes that this moment has been coming since 2007.
Hill: I think there’s been a logical, methodical plan that goes back a very long way, at least to 2007 when he put the world, and certainly Europe, on notice that Moscow would not accept the further expansion of NATO. And then within a year in 2008 NATO gave an open door to Georgia and Ukraine. It absolutely goes back to that juncture.
Back then I was a national intelligence officer, and the National Intelligence Council was analyzing what Russia was likely to do in response to the NATO Open Door declaration. One of our assessments was that there was a real, genuine risk of some kind of preemptive Russian military action, not just confined to the annexation of Crimea, but some much larger action taken against Ukraine along with Georgia. And of course, four months after NATO’s Bucharest Summit, there was the invasion of Georgia. There wasn’t an invasion of Ukraine then because the Ukrainian government pulled back from seeking NATO membership. But we should have seriously addressed how we were going to deal with this potential outcome and our relations with Russia.
But it’s not just NATO. For years, Putin has portrayed any popular uprising for democracy as a CIA plot, a claim that many anti-imperialists championed, thereby denying those calling for democracy any agency. And the 2014 ouster of Viktor Yanukovych (which more complicit members of the horseshoe left claim was simply a coup led by Nazis) set off a concerted plan that incorporated support for Brexit, an attack on US elections in 2016, all conducted in parallel with relentless targeting of Ukraine.
This invasion is the continuation of not just the annexation of Crimea and persistent war in Ukraine’s East, but also the hybrid attacks on Ukraine’s power grid and, via NotPetya, on anyone paying taxes in Ukraine and therefore any international business doing business with it.
Russia’s efforts to cultivate Tories in the UK, populists in the EU, and the Trumpist right, including a good deal of disinformation capitalizing on Trump’s narcissism, was always closely connected to Russia’s closer goals in Ukraine (and, indeed, involved the participation of some of Trump’s closest allies, starting with Paul Manafort and Rudy Giuliani. in Ukraine).
The horseshoe left can’t acknowledge this, of course, because it would amount to admitting that they have been lying in Russia’s service since 2016, conflating their own manufactured “RussiaGate” for Russia’s real attack on US democracy in 2016 and afterwards, debunking the former while repeating Russia’s lies about the latter. Because the horseshoe left can’t admit they were duped into being mouthpieces gleefully attacking democracy, they have real incentive to ignore the ways the Ukrainian invasion is not just a reaction against NATO, but also an attack on democracy, on a rules-based order, on the European project that always aspired (however imperfectly) to improve on the hypocritical liberal aspirations of the United States.
The thing I don’t understand, though, is how little of the horseshoe left’s criticism is about Neoliberalism. If you’re going to attack Bill Clinton, why not attack the way the US pushed shock therapy on former Soviet states, including Russia?
To be sure, Putin is not unhappy with the results of that, and so is not complaining about the imposition of a form of capitalism that allowed Oligarchs to loot the state, and through them, Putin to accumulate power. Putin has made the most of the organized crime that filled the vacuum of the state.
But as the EU has moved with remarkable (though selective) swiftness to pressure Putin through those networks of Oligarchs, as Germany, Italy, and Cyprus took steps it wasn’t clear they would take, a critique of American-led failures of capitalism is especially important, not just to ensure that the Oligarchs do get sanctioned and in hopes that the UK begins to wean itself of Russian dirty money.
Ukraine, with Europe, needs to survive this attack, find a way to rebut the invasion and build a path forward.
But whatever else this moment has done, it has made it clear how easy it was for Russia to pervert democracy in the places proudly claiming to practice it with the least little bit of Oligarch cash. Having ripped off the bandaid of Russian influence, Europe (at least) has the opportunity to formalize protections against purchased influence.
Such lessons, of course, extend beyond Russia to America’s own failed imperial catastrophes, most notably in Afghanistan, where US-backed corruption made it easy for the Taliban to regain credibility by comparison. US hegemony is on the wane because of Green Zone thinking about capitalism, which fostered the kind of corruption that made Putin powerful.
Such lessons extend, as well, to America’s own fragile democracy, subjugated in recent years to endless supplies of corporate cash, which led in 2016 to the election of a man who aspired to impose a kleptocracy every bit as corrupt as Putin’s.
Vladimir Putin has gotten a large swath of anti-imperialist American leftists to parrot a claim that he invaded Ukraine because of NATO, and only because of NATO. Not only has that made them willful apologists for the kind of imperialism they claim to abhor, even while ignoring the direct assault on democracy and the greater aspirations to human rights adopted by Europe. But it has led them to ignore an obvious critique of US and Russian power that would be a necessary component of building a new, more resilient order if we survive this war.
https://www.emptywheel.net/wp-content/uploads/2018/03/Screen-Shot-2018-03-11-at-1.02.06-PM.png610948emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2022-03-02 07:51:542022-03-14 14:55:10The Single-Legged Stool of the Horseshoe Left’s Apology for Putin
As I’ve been watching Putin expand his war in Ukraine, I’ve been thinking a lot about his timing. Why launch it now rather than two years ago, when Trump would have facilitated it, or another year from now, when Republicans are expected to control at least one house of Congress?
I suspect there are a lot of things that dictate the timing. Any invasion was going to come in winter. It’s easier for heavy tanks to move, but more importantly, winter temperatures make it easier to use gas prices to impose a cost on Europe.
I think it happened this year, under Biden’s first full winter rather than 2021 or even 2020 because, up until Biden’s inauguration, Putin’s investment in Trump might still have paid off by allowing Putin to achieve his objectives without launching a war. He almost did, in the insurrection, which was undoubtedly led by MAGAts but which included the participation of some key Russian projects (such as Patrick Byrne).
To be sure, there are European reasons, even beyond the gas squeeze. Boris Johnson is fighting to keep power. Angela Merkel’s retirement surely led Putin to hope that the EU would be left without a strong leader (or that he could more easily manipulate Emmanuel Macron, especially in an election year).
But I believe this invasion represents the culmination of a plan not just to reassert what he imagines is Russian greatness, but also to end US hegemony, which Putin has pursued for a decade.
Ukraine has been a part of that and starting in 2010, Paul Manafort was useful to giving his puppets the patina of legitimacy. After Viktor Yanukovych’s ouster, Ukraine was useful as a testing ground for various kinds of hybrid warfare, most spectacularly with the NotPetya attack in 2018.
Ukraine — the partnership of Konstantin Kilimnik and Oleg Deripaska, along with their leverage over Paul Manafort — was also whence Russian launched its 2016 attack (I need to find the reference, but they knew they could place Manafort as campaign manager before the end of 2015). As I have written (in a piece on my understanding of the role of using the Steele dossier as a vehicle for disinformation), Russia’s interference in 2016 is best understood as a win-win. If Hillary won, Roger Stone would have rolled out the same Stop the Steal plan that was used in 2020 back in 2016 to destabilize the US in 2017 rather than 2021, as happened.
Trump’s win was an unexpected bonus.
As part of the 2016 operation, Russia also did unprecedented damage to the NSA (through the Shadow Brokers operation) and the CIA (in the way that WikiLeaks rolled out the Vault 7 release).
The failure of Russia’s attempt to blame its 2016 interference on a false flag thwarted Russia’s best laid plans — which would have involved Kilimnik calling in the quid pro quo made with Manafort on August 2, 2016 and getting Trump to help carve up Ukraine in the same way Russia is currently doing with tanks.
Even still, the Russian investigation paid huge dividends and, given Putin’s long game, to date has surely been more than worth it. That’s because the FBI-led investigation into Trump’s cooperation with Russia, over time, came to train Republicans to trust Putin more than they trust Democrats.
Republicans genuinely believe, falsely, that the FBI deliberately attempted to take Trump out (entirely memory holing Jim Comey’s role in getting Trump elected, much less that the FBI Agents running informants on the Clinton Foundation during the election were explicitly anti-Hillary). The dossier disinformation project proved so wildly successful that most Republicans genuinely believe, falsely, that there wasn’t abundant proof of cooperation between Trump and Russia, including communications directly with the Kremlin during the election that Michael Cohen lied to hide. Republican members of Congress genuinely came to believe — because they had to! — that criticism of Trump’s refusal to spend the money in support of Ukraine they had appropriated was just another Democratic attack on Trump and not an attempt to save the integrity of American democracy. All this culminated in Stop the Steal 2.0, a literal attack on American democracy; Republican fealty to Trump forced them — more reluctantly at first and driven in large part by real terror — to defend an assault on Congress.
By February 13, 2021, the date the Senate voted to acquit Donald Trump of inciting an attack on Congress, Republicans had put loyalty to Donald Trump over defense of the country and the Capitol in which they worked.
Sure, Putin didn’t get Trump to carve up Ukraine as President. But he got so much more from Trump’s presidency.
Putin did get Trump to do real damage to NATO. He got Trump to largely abandon Syria. Trump made a humiliating deal with the Taliban that would result in the US withdrawing its military from Russia’s back door. After years of Russia having to work hard to highlight American hypocrisy on human rights, Trump did things like pardon war criminals, forever tainting America’s claim to be exceptional.
And through it all, Trump created his own authoritarian-supporting militias, heavily armed troops inspired by resentment who have the ability to make the United States ungovernable. Trumpist Republicans are making localized efforts to dismantle democracy. Trump’s Supreme Court nominees have abandoned legal precedent.
Which brings us to this moment.
I think Putin faced a moment of diminishing returns. Republicans are finally beginning to wake up from their Trump cult. If COVID subsides and the US economy takes off, Democrats might surprise at midterms. I wouldn’t be surprised, either, if Russia expected some details of what it has done over the last decade — involving Julian Assange, involving 2016 (with the prosecution of Vladislav Klyushin), possibly even involving Trump — to become public in the near future. And so Putin chose this moment to launch a war to try to solidify the efforts he has made over the last decade.
Thus far, however, things haven’t gone Putin’s way.
I believe that Putin thought he could demonstrate Five Eyes fragility by conducting war games off the Irish coast without inciting the nationalism of a bunch of Irish fisherman. I believe Putin expected the US and/or Europe would fail to fully incorporate Ukraine in its planning, thereby discrediting Volodymyr Zelenskyy. I believe that Putin expected he would be able to peel away France and Germany (after Olaf Scholz’s initial announcement that it is halting Nord Stream 2, there seems to be some hesitation). I believe Putin expected his false flags would work. I believe Putin believed he’d be able to blame someone else for this invasion. I agree with Dan Drezner, thus far Biden has done just about everything right.
I believe that Putin believed his invasion would split NATO, the EU, and the US. Thus far it has had the opposite effect.
Which brings us to the weird pivot that Trump and his top Fox associates: white nationalist Tucker Carlson, Chief of Staff Sean Hannity, and Laura Ingraham.
Yesterday, Trump hailed Putin’s actions as genius.
“I went in yesterday and there was a television screen, and I said, ‘This is genius.’ Putin declares a big portion of the Ukraine — of Ukraine — Putin declares it as independent. Oh, that’s wonderful,” Trump told conservative podcaster Buck Sexton.
I said, ‘How smart is that?’ And he’s gonna go in and be a peacekeeper. That’s strongest peace force… We could use that on our southern border. That’s the strongest peace force I’ve ever seen. There were more army tanks than I’ve ever seen. They’re gonna keep peace all right,” Trump continued. “Here’s a guy who’s very savvy… I know him very well. Very, very well.”
Last night, Tucker did a chilling monologue, suggesting that Americans have been trained to hate Vladimir Putin.
Tucker suggested that Putin’s invasion is just a border dispute. He’s suggesting that Biden is doing this to pay off imagined debts to Ukrainian Oligarchs. Tucker laid out Putin’s plan for costs to impose on Americans, in terms of energy costs. Tucker included every single false claim about Ukraine that Russia has been planting since 2016. Every single one.
This is the monologue you’d expect of a man who believes there are two years of records showing Russian and Hungarian sources trying to set up one meeting between him and Putin.
To win this war, Putin needs to achieve both goals at once: splitting the US so that he can take Ukraine. One goal serves the other.
And in days ahead, Putin undoubtedly plans to take great risks to impose some costs on European and American voters. In gas prices, sure, but probably also with some ambitious cyberattacks and efforts to support another insurrection. Those costs, I imagine Putin plans, will lead American and European voters to lose patience with support for Ukraine, to forget that this is about the ability to enjoy real democracy.
But to get away with that, Putin has to ensure that it won’t backfire by overcoming the polarization he has invested great effort to encourage in the last five years.
Via whatever means last night, Putin’s two biggest assets in the US (speaking in terms of advantages, not recruited assets, but I don’t rule it out) went out and reminded Trump supporters that they’ve been trained to like Putin more than they like their own country.
Update: Philip Bump notes that Republicans like Putin more than Biden.
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In an analysis piece earlier this week, the NYT reported as newsworthy that,
Over the weekend, Mr. Trump also dangled, for the first time, that he could issue pardons to anyone facing charges for participating in the Jan. 6 attack if he is elected president again — the latest example of a yearslong flirtation with political violence.
Politico followed that with a report that Trump at least considered blanket pardons for those who might be implicated in January 6.
“Is it everybody that had a Trump sign or everybody who walked into the Capitol” who could be pardoned? Trump asked, according to that adviser. “He said, ‘Some people think I should pardon them.’ He thought if he could do it, these people would never have to testify or be deposed.”
Offering preemptive pardons is not a new idea for Trump. According to Michael Cohen, Trump also entertained bulk pardons with the Russian investigation before Jay Sekulow figured out that it would make it easier for people to testify against him.
Q What is – you had a conversation with Jay Sekulow about something called a pre-pardon?
A Yes.
Q How many conversations did you have with him about pre-pardoning
A One or two.
Q And what did he say to you?
A The problem with a pre-pardon is that you have to answer every question because technically you have immunity, so you can’t assert any Fifth Amendment privilege.
Q Let’s back up for a second, because that presupposes that you’ve already discussed the idea of you getting a pardon. Did Jay Sekulow tell you that the President was considering giving you a pardon?
A That’s not the way that he stated it, but we had a conversation, one at least – I believe it may have been two – and I am not 100 percent certain of the exact date that that occurred, but the concept of a pre-pardon was discussed, yes.
Q Okay. So if you said that’s not exactly how he said it, what do you remember him saying about the idea of you getting a pardon?
A Well, it wasn’t just me. It was globally, in order to, I guess, shut down, you know, this investigation. And I had said to him, you know, what .. well, you know, there’s always the possibility of a pre-pardon. And –
Q Let’s take your time, because it’s important for us to understand not just the gist of the conversation but who said what exactly. All right? So you mentioned something called a global pardon. Did he use that term?
A No.
Q Okay. What do you mean by a global pardon?
A Okay. That in order to shut this whole thing down, that this is how they were potentially going to do it, and everybody would just get a pardon. And said, well, it wouldn’t be a pardon, it would be a pre-pardon, because nobody’s been charged yet. So it ultimately just became, that’s not really something that could be accomplished, because then they’d have the right, again, to ask you questions, everyone on the team.
Q So when you say everyone, who do you mean?
A I guess whoever it is that you started to request to come in, testify, subpoenaed.
It is the case that Trump has now dangled pardons at a time he doesn’t have the power to grant them. Even that is not new, though, given that Roger Stone was brokering a Julian Assange pardon no later than November 15, 2016 and probably starting even before the election, in October 2016.
This latest dangle is more newsworthy, though — and for reporters who don’t want to enable Trump’s authoritarian power, ought to be reported as — an attempt to reclaim power he already lost after reneging on promises of pardons made while he still had the power to grant them.
It is not news that Trump used pardon dangles as one tool to attempt a coup on January 6. At least five people directly involved in the coup attempt benefitted from pardons, some awarded at key times in the planning process, with Steve Bannon’s issued at the last possible moment.
It is not news that Trump is making pardon dangles publicly to try to bend the will and buy the silence of others. This latest pardon dangle comes in the wake of five events, all of which pose a direct threat to Trump:
December 15: The Select Committee contempt referral for Mark Meadows that puts him at risk of Presidential Records Act and obstruction prosecution
January 19: SCOTUS’ refusal to reverse the DC Circuit order allowing the Archives to share Trump records
January 19: The delivery to prosecutors, on January 19, of a large number of texts and messages from Rudy Giuliani’s phones
January 20: The Select Committee request for Ivanka’s testimony, which strongly suggested she has violated the Presidential Records Act
January 21: The report from Sidney Powell’s attorney that she is “cooperating” in her own prosecution and the Select Committee
What’s newsworthy is that Trump is trying this tack after reneging on promises to three of the people involved (during the last days of his Administration, there were reports that Meadows, Rudy, and Ivanka all might receive pardons) that Trump made in the course of planning for the coup.
So I’d like to tell the story of five pardons — three granted, and two withheld — in the context of Trump’s attempted coup on January 6.
Michael Cohen pardon dangle
This first pardon necessary to understand what Trump is up to is one that didn’t happen: The pardon dangle to try to silence Michael Cohen. As the Mueller Report described. in the wake of a raid on Cohen, Robert Costello started reaching out as an envoy for Rudy Giuliani, offering pardons.
On or about April 17, 2018, Cohen began speaking with an attorney, Robert Costello, who had a close relationship with Rudolph Giuliani, one of the President’s personal lawyers. 1022 Costello told Cohen that he had a “back channel of communication” to Giuliani, and that Giuliani had said the “channel” was “crucial” and “must be maintained.” 1023 On April 20, 2018, the New York Times published an article about the President’s relationship with and treatment of Cohen. 1024 The President responded with a series of tweets predicting that Cohen would not ” flip” :
The New York Times and a third rate reporter . . . are going out of their way to destroy Michael Cohen and his relationship with me in the hope that he will ‘flip. ‘ They use nonexistent ‘sources’ and a drunk/drugged up loser who hates Michael, a fine person with a wonderful family. Michael is a businessman for his own account/lawyer who I have always liked & respected. Most people will flip if the Government lets them out of trouble, even if it means lying or making up stories. Sorry, I don’t see Michael doing that despite the horrible Witch Hunt and the dishonest media! 1025
In an email that day to Cohen, Costello wrote that he had spoken with Giuliani. 1026 Costello told Cohen the conversation was “Very Very Positive[.] You are ‘loved’ … they are in our corner … . Sleep well tonight[], you have friends in high places.”1027
According to Cohen, Rudy Giuliani and Robert Costello were at the heart of Trump’s efforts to buy silence.
But Cohen couldn’t be silent about his own plight, and so facing prosecution from that and after a privilege review of his files discovered the recording Cohen made of Trump’s hush payments, he started cooperating with Mueller, helping them to understand what Trump was trying to hide about his ties with the Kremlin during the election.
Cohen paid for that decision, too. He did more time, for example, than Roger Stone, who (like Cohen) had kept blackmail material on Trump. As such, Cohen served as a useful example to Trump: if you cooperated against Trump, Trump would ensure that you suffered a worse outcome than those who had sustained the lies to protect him.
Roger Stone commutation
Roger Stone kept a notebook recording every conversation he had with Donald Trump during the 2016 election. After the election, according to an unreliable October 2018 interview that Steve Bannon had with Mueller’s team, Stone got a meeting to which he brought what appears to be that notebook. Trump asked Bannon to attend, it seems, to ensure that Stone would be kicked out after a short time.
While BANNON was at Breitbart in 2013-2015, BANNON had a strong relationship with [redacted]. BANNON heard from [redacted] STONE was still talking to Trump and was an advisor. STONE subsequently made those statements to BANNON as well. BANNON was suspect and upset. BANNON believed you had to eep TRUMP “on program.” While BANNON was on the Trump Campaign he never heard any mention of STONE from TRUMP or anyone else on the campaign. After the win, STONE tried a full court press in order to get a meeting with TRUMP. [redacted] eventually set up a meeting with TRUMP and STONE in early December 2016 on the 26th floor of Trump Tower. TRUMP didn’t want to take the meeting with STONE. TRUMP told BANNON to be in the meeting and that after 5 minutes, if the meeting hadn’t concluded, to throw STONE out. STONE came in with a book he wrote and possibly had a folder and notes. [full sentence redacted] TRUMP didn’t say much to STONE beyond “Thanks, thanks a lot.”. To BANNON, this reinforced STONE [redacted] After five to six minutes, the meeting was over and STONE was out. STONE was [redacted] due to the fact that during the meeting TRUMP just stared.
That was Bannon’s second-to-last interview with Mueller’s team. A week after his last interview, at which Bannon also appeared before the grand jury, the FBI raided Stone’s homes. One of the things they explicitly looked for was that notebook.
53. On May 8, 2018, a law enforcement interview of [redacted] was conducted. [redacted] was an employee of Stone’s from approximately June 2016 through approximately December 2016 and resided in Stone’s previous New York apartment for a period of time. [redacted] provided information technology support for Stone, but was not f0rmally trained to do so. [redacted] was aware that Stone communicated with Trump during the 2016 presidential campaign, and afterward, both in person and by telephone. [redated] provided information about a meeting at Trump Tower between Trump and Stone during the time [redacted] worked for him, to which Sterne carried a “file booklet” with him. Stone told [redacted] the file booklet was important and that no one should touch it. [redacted] also said Stone maintained the file booklet in his closet.
54. On December 3, 2018, law enforcement conducted an interview of an individual (“Person 1 “) who previously had a professional relationship with a reporter who provided Person 1 with information about Stone. The reporter relayed to Person 1 that in or around January and February 2016, Stone and Trump were in constant communication and that Stone kept contemporaneous notes of the conversations. Stone’s purpose in keeping notes was to later provide a “post mortem of what went wrong.”
In November 2019, Stone was convicted for lying about the nature and Trump’s awareness of his back-channel to the Russian operation. Billy Barr went to extraordinary lengths to attempt to minimize the punishment Stone would suffer for covering that up. He went so far as claiming threats against a federal judge by Roger Stone and the Proud Boys, threats which foreshadowed January 6, were a mere technicality.
But in July 2020, the moment when Stone would have to report to prison approached. Stone made several public appearances telling a story that was impossible as told, the gist of which was that prosecutors had promised Stone they would fight for leniency if he would testify about the content of a subset of the conversations he had with Trump during the election. That had the desired effect: Trump commuted Stone’s sentence before he reported for prison, protecting Stone in a way he had not done for Paul Manafort.
Billy Barr minimized the damage this should have done to Trump’s electoral chances. The Attorney General sat on a footnote of the Mueller Report that revealed when all this occurred, Roger Stone was still under investigation for the hack-and-leak with Russia. Barr released that literally on the eve of the 2020 election, and to this day no major outlet has reported that Stone was still under investigation for conspiring with Russia after the Mueller Report was released.
Mike Flynn pardon
As I laid out in this post, Mike Flynn got next to nothing out of his his two year attempt to renege on his plea agreement with Robert Mueller.
Replaced competent lawyers with incompetent TV grifters
Released evidence he lied to his lawyers doing the FARA filing
Consented to waive privilege so DOJ could find more proof he lied
Debunked a slew of conspiracy theories
Got really damning transcripts released
Served 708 days of supervised release
Joined a gang
Got one of his gang members prosecuted for death threats against Judge Sullivan
Got a ruling — and, later, a clear statement from DOJ — that no abuse occurred
Exposed his son to further prosecution
Exposed DOJ to further scrutiny
Proved Judge Sullivan’s point about selling the country out
After 18 months of making repeatedly debunked claims that he had been victimized by DOJ, however, he did get the most expansive pardon Trump gave, one pardoning not just his underlying crimes, but also the crimes he committed during the process of performing that victimization.
Given everything that has happened since, it’s worth considering Flynn’s performance as a victim as part of Trump’s reelection campaign.
That became most evident on September 29, 2020. Earlier in the day, in a status hearing, Sidney Powell confessed that weeks earlier, she had spoken to Trump about the case, and asked him not to pardon Flynn.
More curious still, she admitted she had spoken with Trump’s campaign attorney, Jenna Ellis.
THE COURT: Let me ask you this before you get to your other objections since we’re talking about — since I raised the issue about communications and correspondence with the Department of Justice. Have you had discussions with the President about this case?
MS. POWELL: I have not, Your Honor, while the case was pending pre-motion to dismiss or otherwise other than an update as to what happened in it.
THE COURT: I’m sorry. I’m not sure I understand your answer. The question is whether you’ve had any discussions at all with the President of the United States about Mr. Flynn and about this case. Yes or no.
MS. POWELL: I’m sorry, Your Honor. I can’t discuss that.
THE COURT: What’s the reason why you can’t discuss that?
MS. POWELL: I would think any conversations that I had with the President would be protected by executive privilege.
THE COURT: Well, you don’t work for the government.
MS. POWELL: I don’t think the executive privilege is limited to people who work for the government.
THE COURT: So you’re purporting to invoke executive privilege not to answer the Court’s question about whether you discussed Mr. Flynn’s case with the President of the United States. Is that correct?
MS. POWELL: Yes. Other than the fact that after the government moved to dismiss or at some point in the last month or so, I provided the White House an update on the overall status of the litigation.
THE COURT: How did you provide that update? Was it in writing?
MS. POWELL: No, sir.
THE COURT: How did you provide that update? Who did you speak with?
MS. POWELL: I provided it in person to counsel for the President.
THE COURT: I mean the White House counsel or a deputy or who did you speak to?
MS. POWELL: Your Honor, I spoke with Jenna [Ellis] and I spoke with the President himself to provide a brief update of the status of the litigation within the last couple of weeks.
THE COURT: And did you make any request of the President?
MS. POWELL: No, sir. Other than he not issue a pardon.
THE COURT: All right. Prior to that discussion with the President — how many discussions with the President have you had about this case?
MS. POWELL: That’s the only one I recall.
THE COURT: So you’re not ruling out other — well, certainly, you would recall a discussion with the President of the United States, wouldn’t you?
MS. POWELL: Well, I’ve had a number of discussions with the President of the United States. I think the New York Times reported I’ve had five. So it seems like they probably have a number better than I know.
THE COURT: Are the New York Times’ representations erroneous?
MS. POWELL: I couldn’t tell you the number of times I’ve actually spoken with the President, Your Honor.
THE COURT: All right. About this case. But there’s been more than one though.
MS. POWELL: No, sir. I can tell you I spoke with one time to the President about this case to inform him of the general status of the litigation.
THE COURT: And was that within the last two weeks?
MS. POWELL: Time has a way of getting by for me, but it’s certainly well after the government moved to dismiss and probably if I recall correctly after the writ of mandamus was entered.
THE COURT: All right. Did you ever ask the President of the United States to request his Attorney General to appoint more attorneys in this case?
MS. POWELL: Oh, heavens, no.
THE COURT: All right. So very succinctly just so I have a clear understanding, what precisely — during the first time you spoke with the President of the United States, what precisely did you ask him to do in connection with this case? What did you ask him to do in connection with this case?
MS. POWELL: I never discussed this case with the President until recently when I asked him not to issue a pardon and gave him the general update of the status of the litigation. [my emphasis]
On the same day Powell admitted to speaking, some weeks earlier, to Trump’s campaign attorney Jenna Ellis, Trump delivered a pre-arranged attack against Joe Biden in the first debate.
President Donald J. Trump: (01:02:22)
We’ve caught them all. We’ve got it all on tape. We’ve caught them all. And by the way, you gave the idea for the Logan Act against General Flynn. You better take a look at that, because we caught you in a sense, and President Obama was sitting in the office.
This false claim was based off misrepresentations based on altered Peter Strzok notes released as part of Bill Barr’s efforts to reverse the prosecution of Flynn. There were other altered documents released for wider dissemination in this period, as well, including additional Strzok and Page texts that newly violated the Privacy Act, though after DOJ had to confess that they had altered those documents, any further focus on the altered documents were dropped.
And then, Trump pardoned his Agent of Turkey along with the Thanksgiving bird.
At the moment Trump would have informed Sidney Powell of that news, she was at Lin Wood’s plantation plotting ways to steal the election Trump had lost. If Flynn was not already with Powell plotting away at the moment he learned of his pardon, he would join her within 24 hours.
Within weeks, the recently-pardoned retired General and foreign agent that had been plotting away with Sidney Powell and Patrick Byrne, someone who had been seduced by an admitted Russian agent, was calling for military intervention. Flynn’s calls for insurrection were reported in real time, but the news was buried and the fact that Trump had just pardoned the man calling for a coup did not make the coverage.
Roger Stone pardon
During the first half of December, Roger Stone was palling around with the accused terrorists who would help physically obstruct the vote certification on January 6.
Days later, one of the Oath Keepers that Stone palled around with, Kelly Meggs, bragged of arranging an alliance with other accused terrorists that Stone also palled around with, the Proud Boys that Trump had told to “Stand Back and Stand By” in that same debate on September 29 where Trump had used a campaign attack packaged up by Sidney Powell.
On December 23, Trump pardoned Stone for the crimes of which he was convicted (but not those that were still under investigation).
On Christmas, Meggs specifically tied protection, almost certainly of Stone, and coordination with a Proud Boy, almost certainly Enrique Tarrio, in the same text.
On December 26, Stone associate Kelly Meggs called this an insurrection (albeit in response to Trump’s order) explicitly.
On December 27, Stone went to Mar-a-Lago to thank Trump for the pardon directly and to discuss how he would “ensure that Donald Trump continues as our president.”
Stone wrote that he counseled the president on how he could “ensure that Donald Trump continues as our president.”
[snip]
Stone said via text that he deleted the words and images after he was notified the golf club has “a policy of prohibiting photos of club members or guests out of respect for their privacy.” He said he didn’t have any additional comment.
A photo posted and then removed from Roger Stone’s Parler social media page shows President Donald Trump, left, Kimberly Guilfoyle, an unidentified man and Roger Stone at the Trump International Golf Club in West Palm Beach on Sunday.
“I thanked President Trump in person tonight for pardoning me,” he wrote. “I also told the president exactly how he can appoint a special counsel with full subpoena power to ensure that those who are attempting to steal the 2020 election through voter fraud are charged and convicted and to ensure that Donald Trump continues as our president #StopTheSteal #rogerstonedidnothingwrong.”
The next day, Stone deleted the pictures of his face-to-face meeting with Trump.
On January 5 and 6, Stone continued to interact closely with the Oath Keepers (and some Proud Boys). The morning of the insurrection, one of the Oath Keepers since charged with sedition, Joshua James, checked in with the operational leader for the Oath Keepers that day every time that someone — almost certainly Stone — moved.
Two days after the insurrection, Kristin Davis tweeted out a picture of Stone signing his pardon paperwork. (h/t gal_suburban)
Stone never hid it: His pardon was directly tied to his efforts to keep Trump in power. Given that Stone’s pardon was not as expansive as Flynn’s, he remains at some legal exposure for prosecution for his later efforts (including his June 2017 efforts to shut down the investigation into Julian Assange), so he had a real incentive to do anything he could to keep Trump in power.
Steve Bannon
Three days after Trump lost the election, Steve Bannon — in planning for an illegal second Trump term — threatened to assassinate Chris Wray and Anthony Fauci. The same day, his very competent lawyer, Bill Burck (the guy who got him through a bunch of serial lies in the Mueller investigation), fired him as a client, even as he was facing fraud charges for cheating Trump’s rubes.
It wasn’t until December 11, well into the plotting for a coup, that Robert Costello — the very same lawyer who dangled a pardon to Michael Cohen over two years earlier — noticed his appearance. Costello’s representation of Bannon also meant that the same lawyer represented both Rudy and Bannon, two of the masterminds in the Willard War Room.
December 11, when Costello formally filed as Bannon’s lawyer, is around the same time, according to Dustin Stockton and Jennifer Lawrence, that Paul Gosar’s Chief of Staff tied a pardon for their own involvement in Bannon’s fraud to their efforts to overturn the election results.
In December 2020, as the tour rolled around the country, Stockton and Lawrence say they got a call from Rep. Paul Gosar (R-Ariz.) and his chief of staff, Thomas Van Flein. According to Stockton, Van Flein claimed he and the congressman had just met with Trump, who was considering giving them a “blanket pardon” to address the “We Build the Wall” investigation.
“We were just in the Oval Office speaking about pardons and your names came up,” Van Flein allegedly said. Van Flein did not respond to a request for comment.
Gosar suggested the bus tour was helping Stockton and Lawrence build support for a pardon from the caucus and Trump. “Keep up the good work,” Gosar said, according to Stockton. “Everybody’s seen what you’re doing.”
So it was probably assumed that, so long as Bannon kept helping Trump try to steal the election, he would would get a pardon. That was true even though Roger Stone made it clear after his trial that Bannon had testified in the grand jury against him.
But on the last day, among the very last pardons Trump granted, Trump pardoned Bannon not just for the crimes he had already been charged with, but any others that might arise from the Build the Wall project federally.
Rudy Giuliani left dangling
Almost three years after Rudy started helping Trump out of his legal troubles, in part by shamelessly dangling pardons to (at least) Cohen and Paul Manafort, Rudy got nothing. He got no pardon even though he was represented by Robert Costello, who had started the pardon dangles with him. He got no pardon even after working relentlessly — and exposing himself to further criminal exposure — trying to help Trump steal an election. Rudy got nothing, even though it was known that Barr had failed in his efforts to kill the Ukraine influence peddling investigation into Rudy.
While there had been abundant discussion of pardoning people who weren’t yet charged in early 2021, after Trump’s coup attempt, that plan was scotched.
It might not have happened in any case, given the conclusion Jay Sekulow had come to years earlier, the preemptive pardons make witnesses more likely to testify against Trump.
But because of the insurrection, Pat Cipollone got a lot more involved in pardons. And the insurrection made it virtually impossible to pardon the mastermind of the insurrection, Rudy Giuliani, even while making it all the more important to find a way to keep Rudy silent.
Ten days after (we now know) SDNY first obtained a warrant targeting Rudy Giuliani in the investigation used to justify seizing all his phones, Rudy boasted that he had “very, very good insurance.” Rudy certainly believed Trump would protect him.
But he didn’t.
That’s the angle through which Trump’s latest attempt to dangle pardons should be viewed. Rudy may be the most important person Trump needs to silence. But Trump had a chance to pardon Rudy when he had the authority, and he failed to do so.
Update: Added the SCOTUS decision to the list of things that must have Trump worried. h/t Brian Pillion
https://www.emptywheel.net/wp-content/uploads/2022/02/Stone-a-Guilfoyle.jpeg422415emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2022-02-03 09:51:172022-02-03 15:00:23Trump’s Coup Attempts: A Tale of Five Pardon Dangles
Last weekend, the UK formally released an intelligence assessment that part of Russia’s plans in Ukraine involve a plot to replace Volodymyr Zelenskyy with a pro-Kremlin functionary.
The NYT version of the story noted that the four people named in the alleged plot all have ties to Paul Manafort.
All four of the other Ukrainians named in the communiqué once held senior positions in the Ukrainian government and worked in proximity to Paul Manafort, former President Donald J. Trump’s campaign manager, when he worked as a political adviser to Ukraine’s former Russian-backed president, Viktor F. Yanukovych. After Mr. Yanukovych’s government fell in 2014, they fled to Russia.
It also claimed that, because of a division of labor within the Five Eyes, this intelligence came from the UK.
In Washington, officials said they believe the British intelligence is correct. Two officials said it had been collected by British intelligence services. Within the informal intelligence alliance known as “Five Eyes,” Britain has primary responsibility for intercepting Russian communications, which is why it played a major role in exposing Russian interference in the 2016 elections.
I noted that you might make such a claim if the collection point (reflected in the Manafort tie) were not a legal NSA target to the US.
Indeed, NBC’s Ken Dilanian explained (but did not include in his story) that this was US intelligence announced by the UK.
It would make sense that this kind of intelligence came from the US — though if it did, it might well come from the FBI, not NSA.
When Manafort traded campaign strategy to Russia for relief from his debt to Oleg Deripaska on August 2, 2016, his cooperation in a series of similar efforts to install a Russian functionary to head Ukraine was part of the deal. Citing numerous documents obtained from Manafort’s devices, Mueller made public Manafort’s participation in the effort through the time he went to jail in 2018.
We can be certain that FBI has continued its investigation of such issues. We can be sure of that because we know (in part from Treasury’s increasing focus on Kilimnik) that FBI has developed a better understanding of Konstantin Kilimnik’s role in both 2016 and his ongoing efforts to undermine US democracy in 2020. We know that because DOJ continues to protect large swaths of Mueller’s files on Kilimnik’s other American partner, Sam Patten, which significantly focused on who was who in Ukraine and the various tools Russia used to manage the country via client politicians. The same is true of Rick Gates’ interviews. But we also know that, thanks in part to Trump’s continued ties to anti-democratic efforts in Ukraine, the FBI has continued to investigate what has been going on in Ukraine. Not only has EDNY conducted an investigation into Andrii Derkach, but Special Master Barbara Jones just handed over a bunch of Rudy Giuliani’s communications involving such issues to the FBI.
One thing we learned from all those investigations was that Paul Manafort was the guy Oleg Deripaska had employed, for years, to use the tools of modern campaigning, leavened by a great deal of corruption, to install puppet governments who would cater to Deripaska’s business interests. In 2016, Russia deployed Manafort to the United States to do the same thing in the US.
With the distance of almost six years, it may be safe to say that Russia succeeded in their 2016 attempt to interfere in the US election not so much from a failure of US intelligence collection in Russia (after all, the FBI warned the DNC it was being hacked in real time). It was — in addition to a misunderstanding of the WikiLeaks operation — a failure of US intelligence collection in Ukraine, whence the human side of the operation was significantly launched. The US has dedicated a good deal of energy to addressing that failure in recent years, though Russia continued to use Ukraine as a platform from which to undermine US democracy through the 2020 election.
Ukraine was then, as now, the test ground for Russia’s larger efforts to either subject “democracy” to the whims of kleptocracy or discredit democracy beyond the ability to govern. Among the things Russia tested on that ground was the 2017 NotPetya attack, which did devastating damage to a slew of companies who did nothing more than do business with Ukraine; I would be surprised if Putin hadn’t at least entertained similar efforts in the months ahead.
Before 2016, the US had the hubris to believe its own democracy was immune from such efforts (and that its tolerance for money laundering would not, in fact, foster kleptocracies on the other side of the world that could damage the US in turn).
Amid debates about how (or whether) the US should respond to Russia’s aggression, some have raised real questions whether, in the wake of January 6, the US has any place lecturing Ukraine about its democracy and whether the US wouldn’t be better, instead, putting its own house in order. It’s a fair question. But it misunderstands how 2016 led directly to January 6. It also misunderstands Russia’s project in Ukraine and beyond, which is of a piece with its earlier attack on American democracy.
We may not have a NATO commitment to defend Ukraine from Russia’s assault (though we do have a NATO commitment to defend NATO allies that Russia has likewise threatened). But we’ve recently seen that attacks on Ukraine are just the prototype for larger attacks elsewhere.
Update: Both Jonathan Swan and Jonathan Weisman have pieces out today attempting to explain why Tucker Carlson and Marjorie Greene Taylor are rooting for Putin in his aggression against Ukraine that don’t mention that Putin helped get Trump elected.
The backstory: Two observable shifts have happened in the GOP electorate over the past 15 years. The first is a growing skepticism about foreign intervention in general — frustration and anger still fueled by the disastrous wars in Iraq and Afghanistan.
The second is a more recent warming towards Russia — initiated by the party’s most powerful figure, Donald Trump.
Trump’s rhetoric about Putin was a far cry from 2012 when the GOP presidential nominee Mitt Romney warned that Russia was America’s “number one geopolitical foe.” (Prominent Democrats mocked Romney at the time but in the age of Trump endorsed his view and apologized).
https://www.emptywheel.net/wp-content/uploads/2018/07/Paulie.jpg600476emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2022-01-26 12:47:162022-03-14 14:56:26The Paulie Plot in Ukraine
Because community members are posting Ukraine content in the Durham-Sussman thread, I’m putting up a fresh post here to capture Ukraine related comments.
~ 3 ~
Look, we all should have and could have seen the current situation coming. Think about it.
— Paul Manafort, former consultant and lobbyist for pro-Russian former President of Ukraine Viktor Yanukovych, was Trump’s campaign manager in 2016 during which the GOP’s platform was tweaked in favor of Russia over Ukraine;
— Trump was in Russia’s pocket before and after his inauguration, from his real estate and golf course development to his first visit by Russian foreign minister Sergei Lavrov in the White House in May 2017 and beyond;
— The threat by Lavrov in 2019 about Georgia becoming a NATO member;
— Trump’s gross abuse of office over the Ukraine quid pro quo for which he was impeached by a Democratic-majority House but not convicted by a GOP-majority Senate in 2020;
— The change in leadership in Germany and the increasingly white nationalist fascist positions of European countries like Hungary;
— The questionable election in Belarus as a soft annexation by Russia.
I’m sure there’s much, much more to this list of predicate events and conditions but I want to get this post up and not write a book. I’ve already published a lengthy piece back in 2019 with a timeline documenting many points of conflict since WWII between Ukraine and Russia spelling out generations’ worth of tension.
We shouldn’t be surprised at all by the current situation. If anything we should be surprised this hadn’t ramped up more quickly last January-February while Biden was still getting his sea legs in office during a pandemic.
Of course now, during winter when natural gas supplies offer increased leverage on the EU, when it’s easier to move heavy equipment over frozen ground, when soldiers are more likely to want to wear masks so their faces don’t freeze off. There are a lot of not so obvious reasons why now.
One of them may be the possibility that 2022 is up in the air — the hold on Congress may be thin, and a lot of negative sentiment one way or the other can build up over the next 9 months. It may be too close to call.
The other may be that destabilization is at its maximum considering the majority of this country voted for Biden and GOP voters are killing themselves with COVID. A key ally, the United Kingdom, has nearly had enough of destabilization by Brexit and Boris Johnson, and may soon be angry enough to reject one if not both.
And then there’s time. Putin is 69 years old. The average life expectancy for men in Russia is a little over 73 years. Granted, Putin will have access to better care than the overwhelming majority of his countrymen. But time doesn’t care, and the pandemic has reduced access to quality health care for everyone by some degree everywhere. He doesn’t have long to do whatever it is he wants to do for his own ego trip and for his legacy.
Don’t need a clock to hear that tick-tock.
~ 2 ~
Here’s Michael McFaul about the increased tensions over Ukraine:
“In my view, having negotiated with Vladimir Putin for many years… he’s not going to be ‘provoked’ by military assistance to Ukraine or NATO troops moving around in NATO countries. He will invent a provocation” – @McFaul w/ @NicolleDWallacepic.twitter.com/CAElTK0ACw
McFaul’s had a lot of experience dealing with Russia. A key point his expressed position doesn’t communicate is that Putin isn’t a legitimate leader with authority conferred upon him by a free citizenry — just ask Alexei Navalny. Oops, you really can’t do that freely.
What we are dealing with is another flavor of narcissist, this time one who is far more ruthless and clever than Trump, retaining power with an iron grip and a lot of defenestrations and dead journalists. We are dealing with a mob boss of mob bosses who wants to protect his turf absolutely and wants to add yet more turf.
We are constrained by being a democracy and the needs of our NATO allies and the people of Ukraine.
We’re somehow going to have to navigate that difference to protect Ukraine and NATO.
~ 1 ~
But why are we bothering at all? Why don’t we let fishstick heir and now Russian asset Tucker Carlson persuade us that Russia is merely protecting its interests with those +100,000 Russian troops sitting at the Ukraine-Russia border?
The U.S. is party to the 1994 Budapest Memorandum on Security Assurances — as is Russia and the UK — in which it was agreed that the parties would “respect the independence and sovereignty and the existing borders of Ukraine” and “refrain from the threat or use of force” against Ukraine.
Russia is and has been in violation of this agreement since 2014.
The U.S. is a proponent of democracy, and Ukraine is a democracy. If Ukraine asks our assistance to protect its democracy and enforce the 1994 Budapest Memorandum, we should provide aid.
The U.S. is a NATO member; under Article 5 of the North Atlantic Treaty, any attack on a NATO member is an attack on all of NATO. NATO’s EU members rely heavily on natural gas supplied through Ukrainian pipelines; any effort to cut off natural gas to and through Ukraine poses an economic attack — hybrid warfare, in other words. Cyber attacks on Ukraine which affect NATO members may also constitute hybrid warfare. We may be engaged just as we were in 2017 when Ukraine was attacked with NotPetya since U.S. business interests were affected.
~ 0 ~
Let’s confine comments on Ukraine-Russia to posts about Ukraine, please. Marcy may have a Ukraine-related post soon as well. Leave the January 6-related comments under those posts.
The other day, I asked Jason Leopold where the Mueller FOIA release was this month. DOJ remains under obligation to hand over hundreds of pages a month in response to his FOIA, and they usually hand it over in the first days of the month.
He shared this month’s release, which makes it clear DOJ did something pretty dickish to him. DOJ turned over notice it was withholding 696 consecutive pages of materials, all of which invoke the b73 exemption for grand jury materials. Effectively, DOJ just dumped a bunch of interviews conducted before grand jury testimony, all of which DOJ has been withholding under that grand jury exemption, to fulfill their monthly obligation.
But there is, however, one detail that we can learn from this. Of the 696 grand jury related pages DOJ withheld, 40 of them also invoke the b7A exemption for an ongoing investigation.
That means that, in addition to the grand jury exemption, more than 5% of the pages were also withheld for ongoing investigations. We have no idea if these interviews are representative of the total. We also can’t see how many individual interviews these records include. But of this batch, it’s over 5%.
To be sure, given what we’ve seen of late, I don’t think that means we’re going to see indictments based on the Trump cases. While individual pages of the Stone, Bannon, and Flynn materials released in the last year reflect ongoing investigations, a whole lot of Sam Patten’s materials do (or at least did, last summer).
Patten, you’ll recall, was sort of a mirror image for Konstantin Kilimnik to Paul Manafort, another American political consultant that he used to access US networks. Patten was referred to Mueller by the Senate Intelligence Committee because he lied in his interview with the Committee. After that he entered into a cooperation agreement where he shared a whole bunch of what he had learned about how Russia interferes in Ukrainian politics (and through that, in US politics).
That is, my guess is that a bunch of these ongoing investigations pertain to stuff like counterintelligence investigations leading to the Treasury sanctions imposed yesterday, including one person who had worked with Kilimnik to interfere in the 2020 US elections.
Whatever it is, though, the only value of DOJ pulling this dickish move is to give a sense of how much of this material remains ongoing.
https://www.emptywheel.net/wp-content/uploads/2018/02/RobertMueller_PeteSouza_2012_Wikimedia.jpg10541500emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2022-01-21 11:05:392022-01-21 11:06:47Five Percent of Mueller Pre-Grand Jury Interviews Pertain to Still Ongoing Investigations
I continue to have little patience for the people–many of them paid to expound as lawyers on TV–who spend their time whinging that Merrick Garland is not moving quickly enough to hold Trump accountable rather than spending their time doing other more productive things to protect democracy.
I’m not aware that any of these people has tracked the January 6 investigation closely enough to name those one or two degrees away from the former President who have been charged or are clearly subjects of investigation. Similarly, I’ve seen none do reporting on the current status of Rudy Giuliani’s phones, which after a Special Master review will release a bunch of information to prosecutors to use under any warrant that DOJ might have. Indeed, many of the same people complain that Trump has not been accountable for his Ukraine extortion, without recognizing that any Ukraine charges for Trump would almost certainly have to go through that Rudy investigation. The approval for the search on Rudy’s phones may have been among the first decisions Lisa Monaco made as Deputy Attorney General.
It’s not so much that I’m certain DOJ would prosecute Trump for his serial attempts to overthrow democracy. There are tea leaves that DOJ could get there via a combination of working up from pawns who stormed the Capitol and down from rooks referred from the January 6 Commission. But I’m more exasperated with the claims that there were crimes wrapped with a bow (such as Trump’s extortion of Ukraine) that Garland’s DOJ could have charged on March 11, when he was sworn in. Even the Tom Barrack prosecution, a Mueller referral which reportedly was all set to indict in July 2020, took six months after Biden’s inauguration before it was indicted. The January 6 investigation started less than eleven months ago; eleven months into the Russian investigation, Coffee Boy George Papadopoulos had not yet been arrested and he was still months away from pleading guilty, on a simple false statements charge. We have no idea how much deliberate damage Billy Barr did to other ongoing investigations arising out of the Mueller investigation, but his public actions in the Mike Flynn, Roger Stone, and Paul Manafort cases suggests it is likely considerable. As for the January 6 investigation, as I’ve noted, it took nine months from the time FBI learned that a Capitol Police Officer had warned Jacob Hiles to delete his Facebook posts until the time DOJ indicted Michael Riley on two counts of obstruction. To imagine that DOJ would have already indicted Trump on anything he might be hypothetically under investigation at this point, particularly relating to January 6, is just denial about how long investigations take, even assuming the subject were not the former President with abundant access to free or RNC-provided legal representation.
It’s not that I don’t understand the gravity of the threat. I absolutely share the panic of those who believe that if something doesn’t happen by midterms, Republicans will take over the House and shut every last bit of accountability down. I agree the threat to democracy is grave.
But there is no rule that permits DOJ to skip investigative steps and due process simply because people have invested in DOJ as the last bulwark of democracy, or because the target is the greatest threat to democracy America has faced since the Civil War. DOJ investigations take time. And that is one reason why, if people are hoping some damning indictment will save our democracy, they’re investing their hopes in the wrong place, because an investigation into Trump simply will not be rolled out that quickly. Even if Trump were indicted by mid-terms, the Republicans have invested so much energy into delegitimizing rule of law it’s not clear it would sway Fox viewers or even independent voters.
I can’t tell you whether DOJ will indict Trump. I can tell you that if they do, it will not come in time to be the one thing that saves democracy.
And so, because I believe the panicked hand-wringing is about the least productive way to save democracy, I made a list. Here are ten way that TV lawyers could better spend their time than whinging that Merrick Garland hasn’t indicted Donald Trump yet:
Counter the propaganda effort to treat the Jan 6 defendants as martyrs.
Explain how brown and black defendants actually faced worse conditions in the DC jail — and have complained with no results for years.
Explain how DOJ has lost cases against white terrorists (including on sedition charges) in the past.
Describe what really goes into an indictment, what kind of evidence is required, how long it takes, and the approvals that are needed to help people understand what to really expect.
Emphasize the prosecutions/charges/investigations that have or are occurring.
Describe the damage done by Trump’s pardons.
Describe the way that even loyal Trumpsters will be and have been harmed as he corrupts the rule of law.
Focus on the legal threats to democracy in the states.
Counter the propaganda effort to treat the Jan 6 defendants as martyrs
Whether or not Trump is ever charged with crimes related to January 6, the right wing noise machine has already kicked into gear trying to make it harder to prosecute other culprits for the January 6 riot. They’ve done so by falselyclaiming:
The event was just a protest like the protests of Brett Kavanaugh’s confirmation, a claim DOJ already debunked, in part by showing that the Kavanaugh protestors who briefly halted his confirmation hearing had been legally admitted.
They’re being treated more harshly than those who used violence at BLM or Portland protests. DOJ has submitted multiple filings showing that such claims are based on cherry-picked data that ignore the state charges many of these defendants face, the better quality of evidence against Jan 6ers (in part because they bragged about their actions on social media), and the more heinous goal of the protest involved.
Large numbers of non-violent January 6 are being held in pretrial detention. In reality, the overwhelming majority of those detained were charged either in a militia conspiracy or for assaulting cops. The exceptions to this rule are generally people (like Brandon Fellows or Thomas Robertson) who violated pretrial release conditions. Additionally, a good number of those accused of assaulting cops have been released.
January 6 defendants are subjected to especially onerous treatment in jail. Many of the conditions they’re complaining about are COVID restrictions imposed on all detainees (though often more restrictive for those who, like a lot of January 6 defendants, choose not to get vaccinated). And in an inspection triggered by January 6 defendant Christopher Worrell’s complaints, the Marshals determined that the other part of the DC jail violated Federal standards, though the part in which the Jan 6ers are held did not.
January 6 defendants are just patriots trying to save the country. In reality, of course, these people were attempting to invalidate the legal votes of 81 million Americans.
Again, all these claims are easily shown to be false. But far too many people with a platform are allowing them to go unanswered, instead complaining that DOJ is not doing enough to defend the rule of law. This sustained effort to turn the Jan 6ers into martyrs will achieve real hold unless it is systematically countered.
Explain how brown and black defendants actually faced worse conditions in the DC jail — and have complained with no results for years
As noted above, after Proud Boy assault defendant Worrell complained about the treatment he received in DC jail, the Marshals conducted a snap inspection. They discovered that the older part of the DC jail, one housing other detainees but not Jan 6ers, did not meet Federal standards and have started transferring those detainees to a prison in Pennsylvania.
What has gotten far less attention is that problems with the DC jail have been known for decades. Even though the problems occasionally have gotten passing attention, in general it has been allowed to remain in the inadequate condition the Marshals purportedly discovered anew because a white person complained.
This is an example, then, when a white person has claimed himself to be the victim when, in fact, it’s yet another example of how brown and black people have less access to justice than similarly situated white people.
This development deserves focused attention, most of all because it is unjust. But such attention will flip the script that Jan 6ers are using in an attempt to get sympathy from those who don’t understand the truth.
Explain how DOJ has lost cases against white terrorists (including on sedition charges) in the past
There’s a lot of impatience that DOJ hasn’t simply charged January 6 defendants with sedition or insurrection.
Thus far, DOJ has chosen to use a less inflammatory and more flexible statute, obstruction, instead. Obstruction comes with enhancements — for threatening violence or especially obstructive behavior — that DOJ has used to tailor sentencing recommendations.
The wisdom of this approach will soon be tested, as several DC Judges weigh challenges to the application of the statute. If the application is overturned, it’s unclear whether DOJ will charge something else, like sedition, instead.
But DOJ probably chose their current approach for very good reason: because sedition is harder to prove than obstruction, and in the past, white terrorists have successfully beaten such charges. That’s true for a lot of reasons, partly because the absence of a material support statute makes association with a right wing terrorist group harder to prosecute.
A cable personality whom I have great respect for — NBC’s Barb McQuade — knows this as well as anyone, as she was US Attorney when a sedition conspiracy case against the Hutaree collapsed. In that case, DOJ had trouble proving that defendants wanted to overthrow the US government, the kind of evidentiary claim that DOJ will face in January 6 trials, even as currently charged.
There are real challenges to prosecuting white terrorism. Some education on this point would alleviate some of the impatience about the charging decisions DOJ has made.
Describe what really goes into an indictment, what kind of evidence is required, how long it takes, and the approvals that are needed to help people understand what to really expect
In the period between the time Steve Bannon was referred to DOJ for contempt and the time he was charged, a number of commentators used the delay to explain what it takes to get an indictment (against a high profile political figure) that stands a chance of work; one good example is this column by Joyce Vance.
There have been and are numerous examples of similar delays — the Tom Barrack indictment and the Rudy Giuliani Special Master review are two — that offer similar teaching opportunities about the process and protections involved in indicting someone.
Due process takes time. And yet in an era of instant gratification, few people understand why that’s the case. If we’re going to defend due process even while trying to defend our democracy, more education about what due process involves would temper some of the panic.
Emphasize the prosecutions/charges/investigations against Trump that have or are occurring
Given the din calling for prosecution of Donald Trump, you’d think none of his associates had been prosecuted. As Teri Kanefield noted the other day, it would be far better if, instead of saying Trump had suffered no consequences for his actions, there was some focus instead on where he had.
His Campaign Manager, his National Security Advisor, his Coffee Boy, his Rat-Fucker, and one of his personal lawyers were found guilty of lying to cover up what really happened with Russia in 2016. Several of these men (as well as a top RNC donor) also admitted they were secretly working for frenemy countries, including (in Mike Flynn’s case), while receiving classified briefings as Trump’s top national security aide. Trump’s biggest campaign donor, Tom Barrack, is being prosecuted for using the access he purchased to Trump to do the bidding of the Emirates. Another of Trump’s personal lawyers, Rudy Giuliani, is under investigation for the same crime, secretly working for another country while claiming to represent the interests of the President of the United States.
The sheer scale of this is especially breathtaking when you consider the projection the GOP has — successfully — focused on Hunter Biden for similar crimes. Even with years of effort and help from Russia, the GOP has not yet been able to prove that the President’s son’s influence peddling or potential tax accounting violated the law. Yet the GOP continues to focus on him relentlessly, even as the long list of Republicans who admit to the same crime continues to grow.
Trump has already proven to be the most corrupt president in some time, possibly ever. And instead of relentless messaging about that, Democrats are complaining about Merrick Garland.
Describe the damage done by Trump’s pardons
One reason why it’s hard to focus on all those criminal prosecutions is because Trump pardoned his way out of it. With the exception of Michael Cohen and Rick Gates, all the people who lied to cover up his Russian ties were pardoned, as was Steve Bannon and others who personally benefitted Trump.
Perhaps because these pardons happened in the wake of January 6, Trump avoided some of the shame he might otherwise have experienced for these pardons. But for several reasons, there should be renewed attention to them.
That’s true, for starters, because Trump’s pardons put the entire country at risk. By pardoning Eddie Gallagher for war crimes, for example, the US risks being treated as a human rights abuser by international bodies. The military faces additional disciplinary challenges. And those who cooperated against Gallagher effectively paid a real cost for cooperating against him only to see him escape consequences.
Paul Manafort’s pardon is another one that deserves renewed attention. That’s true not just because the pardon ended up halting the forfeiture that otherwise would have paid for the Mueller investigation, the cost of which right wingers claimed to care about. It’s true because Trump has basically dismissed the import of industrial scale tax cheating (even while right wingers insinuate that Hunter Biden might have made one error on his taxes). And finally, it’s true because Trump made an affirmative choice that a guy who facilitated Russia’s effort to undermine democracy in 2016, sharing information directly with someone deemed to be a Russian spy, should not be punished for his actions.
Finally, there should be renewed attention on what Trump got for his pardons. Did Steve Bannon and Mike Flynn pay central roles in January 6 in exchange for a pardon?
The US needs some means to prohibit such self-serving pardons like Trump pursued. But in the meantime, there needs to be some effort to shame Trump for relying on such bribes to stay out of prison himself.
Describe the way that even loyal Trumpsters will be and have been harmed as he corrupts the rule of law
Donald Trump pardoned Steve Bannon for defrauding a bunch of Trump loyalists. According to very recent reporting, Sidney Powell is under investigation (and being abandoned by her former allies) on suspicion she defrauded the thousands of Trump supporters who sent money to support her election conspiracy theories.
Meanwhile, the Republican Party continues to dump money into protecting Trump for his own crimes, even as Republicans lose races that could have benefitted from the money.
However, some RNC members and donors accused the party of running afoul of its own neutrality rules and misplacing its priorities. Some of these same officials who spoke to CNN also questioned why the party would foot the legal bills of a self-professed billionaire who was sitting on a $102 million war chest as recently as July and has previously used his various political committees to cover legal costs. According to FEC filings from August, the former President’s Make America Great Again committee has paid Jones Day more than $37,000 since the beginning of the year, while his Make America Great
Again super PAC has paid a combined $7.8 million to attorneys handling his lawsuits related to the 2020 election.
“This is not normal. Nothing about this is normal, especially since he’s not only a former President but a billionaire,” said a former top RNC official.
“What does any of this have to do with assisting Republicans in 2022 or preparing for the 2024 primary?” the official added.
Bill Palatucci, a national committeeman from New Jersey, said the fact that the RNC made the payments to Trump’s attorneys in October was particularly frustrating given his own plea to party officials that same month for additional resources as the New Jersey GOP sought to push Republican Jack Ciattarelli over the finish line in his challenge to incumbent Democratic Gov. Phil Murphy.
“We sure as heck could have used $121,000,” Palatucci told CNN.
Loyal Trumpsters are the victim of one after another grift, and that should be emphasized to make it clear who is really taking advantage of them.
And one after another former Trump loyalist get themselves in their own legal trouble. One of the messages Michael Cohen tried to share in his testimony before going to prison was that “if [other Republicans] follow blindly, like I have,” they will end up like he did, going to prison. Hundreds of January 6 defendants — some of whom imagined they, too, might benefit from Trump’s clemency (they still might, but they’ll have to wait) — are learning Cohen’s lesson the hard way.
Kleptocracy only benefits those at the top. And yet Trump’s supporters continue to aggressively pursue policies that will make the US more of a kleptocracy.
It’s fairly easy to demonstrate the damage degrading rule of law in exchange for a kleptocracy is. Except average people aren’t going to understand that unless high profile experts make that case.
Focus on the efforts of Chuck Grassley, Jim Jordan, James Comer, and Ron Johnson to undercut the investigation into Project Veritas’ suspected theft of Ashely Biden’s diary
The Project Veritas scandal remains obscure and may never amount to charges against PV itself. Yet even as it has become clear that DOJ is investigating theft, key Republicans Chuck Grassley, Jim Jordan, James Comer, and Ron Johnson are trying to shut down the investigation into that theft. Chuck Grassley’s efforts to do so are particularly noxious given that a long-term staffer of his, Barbara Ledeen, is a sometime co-conspirator of Project Veritas.
Republicans have undermined legitimate investigations into Trump, over and over, with little pushback from the press. This is an example where it would seem especially easy to inflict a political cost (especially since Grassley is up for re-election next year).
It would be far more useful, in defending rule of law, to impose political costs on undermining the investigations that commentators are demanding from DOJ than it is to complain (incorrectly) that such investigations aren’t happening. Merrick Garland (however imperfect) is not the enemy of rule of law here, Jim Jordan is.
Explain how shoddy John Durham’s indictments are
One of the complaints that David Rothkopf made in the column that kicked off my latest bout of impatience with the hand-wringing about Garland complained that Garland “is letting” Durham charge those who raise concerns about Trump’s ties to Russia, even while (Rothkopf assumes) ignoring Trump’s own efforts to obstruct the investigation.
We have seen that Garland is letting the highly politicized investigation of special prosecutor John Durham into the conduct of the Trump-Russia investigation continue (by continuing its funding). We therefore have the real prospect that those who sought to look into the Trump-Russia ties that both Mueller and Congressional investigations have demonstrated were real, unprecedented and dangerous might be prosecuted while those who actively sought the help of a foreign enemy to win an election will not be.
And while there was some worthwhile criticism of the Michael Sussmann indictment (perhaps because he’s well-connected in DC), Democrats seem to take Durham’s word that Igor Danchenko — and not Christopher Steele or Russian disinformation — is responsible for the flaws in the dossier. Perhaps as a result, the legal experts who could point out how ridiculous it is to rely on a Twitter feed for a key factual claim have remained silent.
With such silence, it is not (just) Garland who “is letting [Duram’s] highly politicized investigation” continue unchecked, but also the experts whose criticism could do something to rein him in.
If the investigation is politicized — and it is — then Durham is a far more appropriate target than Garland.
Focus on the legal threats to democracy in the states
There has, admittedly, been deserved focus on the ways Republicans are chipping away at democratic representation in the states.
But that is where the battle for democracy is being fought. And in most of the states where Trump attempted to undermine the 2020 election, there are follow-on legal issues, whether it’s the investigation into the suspected voting machine theft in Colorado (including into a former campaign manager for Lauren Boebert), a seemingly related investigation in Ohio, or the effort to criminalize efforts to ease voting by seniors during the pandemic in Wisconsin.
Republicans are trying to criminalize democracy. That makes it all the more important to ensure that the call for rule of law remains laser focused on the criminal efforts to cheat to win, if for no other reason than to shame those involved.
The threat to democracy is undoubtedly grave. Republicans are deploying their considerable propaganda effort into legitimizing that attack on democracy (even while suggesting Biden has committed the kind of graft that Trump engaged in non-stop, classic projection).
In the face of that unrelenting effort, expert commentators who support democracy have a choice: They can defend the rule of law and shame those who have denigrated it, or they can spend their time complaining about the guy trying, however imperfectly, to defend it himself. The latter will make Garland less able to do his job, the former will help him do whatever he is willing and able to do.
Update: Added “suspected” to the PV bullet.
https://www.emptywheel.net/wp-content/uploads/2021/10/Screen-Shot-2021-10-21-at-6.45.46-PM.png10061180emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2021-12-03 09:30:222023-07-01 15:22:23Ten Things TV Lawyers Can Do Rather than Whinging about Merrick Garland
CJR was kind enough to invite me on to discuss media accountability and the Steele dossier with Erik Wemple last week.
On the show, I made the argument that it’s not enough to identify the things that didn’t, but should have, shown up in the dossier: like George Papadopoulos getting advance warning of the Russian operation not far from Christopher Steele’s office, or a dirt-for-sanctions-relief meeting in Trump Tower attended by a client of Fusion GPS, or a deputy for Steele client Oleg Deripaska, Konstantin Kilimnik, trading Trump’s campaign manager $19 million in debt relief to obtain the campaign’s strategy.
Given the way that, on July 30, 2016, Deripaska used Steele (via his lawyers) to make Manafort more vulnerable just days before, on August 2, 2016, Deripaska used that vulnerability to carry out a key step in the election operation, it is reasonable to consider whether any disinformation in the dossier became a key part of the Russian operation. That makes it important to look at the stories that did get told in it, to understand how they related to other aspects of the operation.
Wheeler: If, in fact, the dossier is full of disinformation, which is what every Republican in Congress believes and what I think is largely the case, then the question is not, what was the access. The question was, why did Oleg Deripaska learn about it, as the DOJ IG Report suggests happened, why did he learn about it before the second report? Why did two Russian intelligence people learn about it before the second report, and why did the stories that get told get told? So, yes, there’s the absence of, you know, Papadopoulos in London, but the stories of Michael Cohen in Prague which are the, the, the most easily debunked, do, are near misses on things that were really happening in the Russian operation. Michael Cohen was in fact covering up stuff about Russia at the time — he was covering up the Trump Tower deal. Michael Cohen was also covering stuff having to do with sex at the time. You put those two together and you’ve got the Prague thing. That’s a pretty near miss.
Wemple: Is it though? The allegation in the dossier was that he was meeting with Kremlin representatives — as I recall — to —
Wheeler: And he called up the Kremlin and got Putin’s involvement in the Trump Tower deal.
Wemple: But he met in Prague to cover up or figure out how to pay hackers, if I recall the allegation.
Wheeler: Yeah yeah yeah. Yup.
Wemple: I don’t know. I don’t see it as being that close to what Michael Cohen actually did but we can —
Wheeler: Right, but do you deny that Michael Cohen was covering up stuff about Russia that involved, actually, the Kremlin?
Wemple: Well, it’s clear that he was involved in keeping quiet the Trump Tower —
Wheeler: Okay. Which involved the Kremlin. And involved a GRU officer.
Wemple: Unquestionably, no question.
Wheeler: Okay. So that’s my point. Russia knew that. Russia knew that when Trump made a statement in July of 2016 that he had no business in Russia — which by the way, Durham is reacting against; he’s trying to claim it was unreasonable for cybersecurity researchers to respond to that and say, that’s very alarming, which was very alarming. As soon as Trump made that comment, in July of 2016 (and he had made it a bunch of times before that), Russia knew that Michael Cohen and Donald Trump and a number of other people were lying, publicly, about this ridiculously lucrative deal that involved the Kremlin and involved a GRU officer. And so the Prague story is absolutely garbage. And that came from Olga Galkina, right?
Wemple: It did. Who’s a middle school friend of Danchenko
Wheeler: Right. She’s central to the Danchenko indictment. One of the things that Durham charges Danchenko with is trying to hide how obvious, how much Galkina knew about that. And he didn’t hide it at all. I think that allegation is completely, is completely easily debunked if you actually read the interview. But my point is that, in fact, Michael Cohen was covering up communications with the Kremlin and with a GRU officer. And Russia knew that. And if those Michael Cohen reports which, by January 2017, the FBI believed to be disinformation, so if those were disinformation, why did we get that form of disinformation, when in fact Michael Cohen — and if you read Danchenko, Galkina knew, right away, Michael Cohen’s name. She was ready for it, so those questions. If you want to talk about media accountability, those questions have to be asked as well.
The details of any disinformation in the dossier — the possibility that Russian intelligence deliberately planted false stories about secret communications Michael Cohen had with the Kremlin — are important because they may have served the overall Russian operation. In some cases, such as the claim that Carter Page was Paul Manafort’s purported go-between with Russia rather than Konstantin Kilimnik, might have provided cover. The claims that Russia had years old FSB intercepts of Hillary they planned to release as kompromat, rather than recently stolen emails from John Podesta, would similarly provide cover. In others, disinformation might have worked in the same way Oleg Deripaska’s double game did, increasing the vulnerability of Trump’s people even while making it more likely they’d do what Russia wanted.
I have argued in the past that the Trump Tower deal wasn’t important because it showed that Trump was pursuing a real estate deal while running for President. Rather, it was important to the success of the Russian operation because it gave Russia proof, before any hint of the Russian operation became public, that Donald Trump would be willing to work, in secret, with sanctioned banks and a GRU officer to make an impossibly lucrative real estate deal happen.
[T]here is a piece of the Cohen statement of the offense the significance of which hasn’t gotten sufficient attention. That’s the detail that Dmitry Peskov’s personal assistant took detailed notes from a 20-minute January 20, 2016 phone call with Cohen, which led to Putin’s office contacting Felix Sater the next day.
On or about January 16, 2016, COHEN emailed [Peskov]’s office again, said he was trying to reach another high-level Russian official, and asked for someone who spoke English to contact him.
On or about January 20, 2016 , COHEN received an email from the personal assistant to [Peskov] (“Assistant 1 “), stating that she had been trying to reach COHEN and requesting that he call her using a Moscow-based phone number she provided.
Shortly after receiving the email, COHEN called Assistant 1 and spoke to her for approximately 20 minutes. On that call, COHEN described his position at the Company and outlined the proposed Moscow Project, including the Russian development company with which the Company had partnered. COHEN requested assistance in moving the project forward, both in securing land to build the proposed tower and financing the construction. Assistant 1 asked detailed questions and took notes, stating that she would follow up with others in Russia.
The day after COHEN’s call with Assistant 1, [Sater] contacted him, asking for a call. Individual 2 wrote to COHEN, “It’s about [the President of Russia] they called today.”
Cohen had lied about this, claiming that he had emailed Peskov’s public comment line just once, but gotten no response.
This language is important not just because it shows that Cohen lied. It’s important because of what Cohen would have said to Peskov’s assistant. And it’s important because a written record of what Cohen said got handed on to Putin’s office, if not Putin himself.
[snip]
[W]hen Cohen called Peskov’s assistant, he would have told her that he was speaking on behalf of Donald Trump, that Trump remained interested in a Trump Tower in Moscow (as he had been in 2013, the last time Putin had dangled a personal meeting with Trump), and that on Trump’s behalf Cohen was willing to discuss making a deal involving both a sanctioned bank (whichever one it was) and a former GRU officer.
The impossibly lucrative real estate deal was useful to the Russian operation because it ensured that, even before GRU hacked the DNC, Putin had collected receipts showing that Trump’s personal lawyer had secretly been in discussions about a deal brokered by a GRU officer and sanctioned banks for Trump’s benefit. Trump would want to (and in fact did) keep this fact from voters because it would have proven he was lying about having business interests in Russia. The attribution of the DNC hack to the GRU made Trump’s secret more inflammatory, because it meant Trump stood to benefit personally from the same people who hacked his opponent. Trump and Cohen couldn’t have known all that when Cohen called Peskov in January. But Russia did. Indeed, that may well have been the entire point.
The Cohen-in-Prague story includes outlines of Trump’s real secret: contact by Trump’s personal lawyer with the Kremlin and those who conducted the DNC hack. But the Cohen-in-Prague story displaced the key details of that secret, providing a place and personal details that would be even more damning, but also easier to debunk.
In fact, when Michael Cohen broke the law (by lying to Congress) to cover up this secret, when the Trump Organization withheld from Congress the most damning documents about it, when Trump told his most provable lie to Mueller about it, they (along with Felix Sater and others) used the Cohen-in-Prague story as an easy way to issue true denials while limiting admissions (and lying) about the extent of the Trump Tower deal. Here’s what I described, in August 2017, about the way Cohen used Prague denials to pre-empt his limited (and therefore false) admissions of his pursuit of the Trump Tower deal.
There are real, unanswered questions about the provenance of the document as leaked by BuzzFeed. Some of the circumstances surrounding its production — most notably its funders and their claimed goals, and Steele’s production of a final report, based off voluntarily provided information, for free — raise real questions about parts of the dossier. I think it quite likely some parts of the dossier, especially the last, most inflammatory report (which accuses Cohen of attending a meeting where payments from Trump to the hackers that targeted the Democrats were discussed), were disinformation fed by the Russians. I believe the Intelligence Community is almost certainly lying about what they knew about the dossier. I believe the Russians know precisely how the dossier got constructed (remember, a suspected source for it died in mysterious circumstances in December), and they expect the exposure of those details will discredit it.
So while I think there are truths in the dossier, I do think its current form includes rumor and even affirmative disinformation meant to discredit it.
With that said — and remembering all the time that shortly after this letter got written, documents were disclosed showing Cohen was involved in brokering a deal that Sater thought might get Trump elected — here’s my analysis of the document.
[Cohen’s letter to Congress] is pitched around the claim that HPSCI “included Mr. Cohen in its inquiry based solely upon certain sensational allegations contained” in the Steele dossier. “Absent those allegations,” the letter continues, “Mr. Cohen would not be involved in your investigation.” The idea — presented two weeks before disclosure of emails showing Cohen brokering a deal with Russians in early 2016 — is if Cohen can discredit the dossier, then he will have shown that there is no reason to investigate him or his role brokering deals with the Russians. Even the denial of any documents of interest is limited to the dossier: “We have not uncovered a single document that would in any way corroborate the Dossier’s allegations regarding Mr. Cohen, nor do we believe that any such document exists.”
With that, Cohen’s lawyers address the allegations in the dossier, one by one. As a result, the rebuttal reads kind of like this:
I Did Not Go to Prague I Did Not Go to Prague I Did Not Go to Prague I Did Not Go to Prague
Cohen literally denies that he ever traveled to Prague six times, as well as denying carefully worded, often quoted, versions of meeting with Russians in a European capital in 2016. Of course that formulation — He did not participate in meetings of any kind with Kremlin officials in Prague in August 2016 — stops well short of other potential ties to Russians. And two of his denials look very different given the emails disclosed two weeks later showing an attempt to broker a deal that Felix Sater thought might get Trump elected, including an email from him to one of the most trusted agents of the Kremlin.
Mr. Cohen is not aware of any “secret TRUMP campaign/Kremlin relationship.”
Mr. Cohen is not aware of any indirect communications between the “TRUMP team” and “trusted agents” of the Kremlin.
The Cohen-in-Prague story provided an easy way for Cohen to issue true denials. But it also magnified the risk of the secret — a secret Russia knew — they were keeping, because they committed crimes to keep the secret.
There can be little doubt that, if the Cohen-in-Prague story was deliberate disinformation, it was wildly successful. Indeed, most Trump supporters — including many of the people debunking the dossier full time — seemed to believe that if they could prove that Cohen never went to Prague, that by itself would amount to proof that Trump had no ties with Russia in 2016, a claim every bit as outlandish as the pee tape.
If the Cohen-in-Prague story was deliberate disinformation, it was spectacularly successful, both for obscuring the Trump Tower discussions and for creating an easily debunked stand-in for Trump’s real cooperation, distracting from Manafort’s role.
Years later, we now know there were reasons to think the Cohen-in-Prague story was deliberate disinformation from the start. A declassified DOJ IG footnote describes that, even before the Igor Danchenko interviews in January 2017, FBI had received intelligence suggesting that was the case.
In addition to the information in Steele’s Delta file documenting Steele’s frequent contacts with representatives for multiple Russian oligarchs, we identified reporting the Crossfire Hurricane team received from [redacted] indicating the potential for Russian disinformation influencing Steele’s election reporting. A January 12, 2017, report relayed information from [redacted] outlining an inaccuracy in a limited subset of Steele’s reporting about the activities of Michael Cohen. The [redacted] stated that it did not have high confidence in this subset of Steele’s reporting and assessed that the referenced subset was part of a Russian disinformation campaign to denigrate U.S. foreign relations. [italicized language declassified]
If it was disinformation, Danchenko’s source for it, his childhood friend Olga Galkina, seems to have been prepared. When Danchenko described the sourcing of the report, he explained that that Galkina was “almost immediately” familiar with Cohen when he asked.
[Danchenko] began his explanation of the Prague and Michael Cohen-related reports by stating that Christopher Steele had given him 4-5 names to research for the election-related tasking. He could only remember three of the names: Carter Page, Paul Manafort and Michael Cohen. When he talked to [Galkina] in the fall of 2016 — he believes it was a phone call — he rattled off these names and, out of them, he was surprised to hear that [Galkina] immediately [later [Danchenko] softened this to “almost immediately”] recognized Cohen’s name.
[snip]
Danchenko believes he had 2, maybe even 3, conversations with [Galkina] on this topic later in October. Nothing on Prague and Cohen was collected during the [redacted] trip in [redacted]. The first conversation is the one during which he believes [Galkina] noted her recognition of Cohen’s name. The second conversation is the one in which she discussed Prague, the visit of Cohen plus three other individuals, and the meeting with the Russia side. There may have been a third conversation on the topic, but [Danchenko] could not recall exactly and said that they had also talked about “a private subject.”
Several details in the Danchenko indictment explain why Galkina might be prepared.
Charles Dolan, the PR Executive whom Danchenko introduced to Galkina that spring, had worked directly with Dmitry Peskov for years and remained in touch with Putin’s Press Secretary in conjunction with an event he was helping plan in October 2016. During the summer, Dolan recommended Galkina to Peskov for a job in the Presidential Administration.
[F]rom in or about 2006 through in or about 2014, the Russian Federation retained PR Executive-I and his then-employer to handle global public relations for the Russian government and a state-owned energy company. PR Executive-I served as a lead consultant during that project and frequently interacted with senior Russian Federation leadership whose names would later appear in the Company Reports, including the Press Secretary of the Russian Presidential Administration (“Russian Press Secretary-I”), the Deputy Press Secretary (“Russian Deputy Press Secretary-I”), and others in the Russian Presidential Press Department.
[snip]
In anticipation of the June 2016 Planning Trip to Moscow, PR Executive-I also communicated with Russian Press Secretary-I and Russian Deputy Press Secretary-I, both of whom worked in the Kremlin and, as noted above, also appeared in the Company Reports.
[snip]
Additionally, on or about July 13, 2016, Russian Sub-Source-I sent a message to a Russia-based associate and stated that PR Executive-I had written a letter to Russian Press Secretary-I in support of Russian-Sub-Source-I’s candidacy for a position in the Russian Presidential Administration.
As it was, Danchenko attributed of any mention of Peskov in the dossier to Galkina. But Galkina’s real ties to Peskov, the person who knew more about Michael Cohen and Trump’s secret than anyone else in Russia — who knew they were pursuing an impossibly lucrative real estate deal involving sanctioned banks and a retired GRU officer with Peskov’s help — had been enhanced in months leading up to that reporting. Galkina’s ties to Peskov would had been enhanced in a way that may have made her source relationship with Danchenko even more evident to Russian spooks (though it would always have been easy to discover).
That is, Dolan’s business relationships with the Russian government may not be important because Galkina appeared to share his enthusiasm for Hillary — the reason Durham included garden variety business networking in the midst of the Danchenko indictment. Rather, it may be important because it made her a much more lucrative target for disinformation.
Olga Galkina was in a position where, if Russia had wanted to tell the secret they knew Trump was keeping from voters, she might have learned the truth behind Cohen’s real, hidden communications with the Kremlin, a truth that voters had a right to know. Instead, she told a false story that mirrored certain aspects of the story that Cohen would do prison time in a failed attempt to hide, but which instead became an easily debunked stand-in for the real story of Trump’s enthusiasm for Russia’s efforts to tamper in America’s democracy.
If the dossier was significantly disinformation, then all Americans were victims of it. It turned a legitimate concern about real Russian interference into American elections into one of the biggest sources of political polarization in recent history. Like the social media trolling from Internet Research Agency, it stoked divisions, with the added benefit that it led significant numbers of Trump voters to trust the Russians who were feeding that disinformation more than they trust the current President. One viral Twitter thread earlier this year even claimed that the dossier (and therefore any Russian disinformation in it) led directly to and justified the attack on the Capitol on January 6. As such, disinformation injected into the dossier should increasingly be treated as a potential central part of the 2016 Russian influence operation — perhaps its most successful and lasting part.
Erik Wemple has spent a lot of time pushing CNN into committing the same reporting failures with the Danchenko indictment as they did on the dossier itself. But that has left largely unexamined the question of why the stories that did get told got told, which may be far more important to understanding how Russia was willing to screw both Paul Manafort and Hillary Clinton.
https://www.emptywheel.net/wp-content/uploads/2018/04/Screen-Shot-2018-04-15-at-2.41.39-PM.png296447emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2021-11-23 07:12:352021-11-26 04:09:58The Disinformation that Got Told: Michael Cohen Was, in Fact, Hiding Secret Communications with the Kremlin
Michael Sussmann’s lawyers reserve their right to challenge the Durham indictment of Sussmann via other pretrial motions in their motion for a Bill of Particulars six different times. The motion does so three different times when noting that Durham used squishy language to paraphrase Sussmann’s alleged lie and couldn’t seem to decide whether he affirmatively lied or lied by omission.
Mr. Sussmann is entitled to understand which particular crime he must defend himself against. Without prejudice to any other pretrial motions Mr. Sussmann may bring on the matter, Mr. Sussmann is also entitled to additional particulars regarding the alleged omissions in the Indictment, including regarding the legal duty, if any, that required him to disclose the allegedly omitted information the Indictment suggests he should have disclosed.
[snip]
The Special Counsel should be required to clarify which crime he believes Mr. Sussmann committed and, to the extent the Special Counsel is proceeding on an omissions theory, he should be required to provide additional particulars (without prejudice to any motions Mr. Sussmann may make later).
[snip]
To the extent that the Special Counsel believes the Indictment is alleging a material omission under Section 1001(a)(1), and without prejudicing any other motions Mr. Sussmann may make on this issue, the Special Counsel should be required to clarify: (1) what specific information Mr. Sussmann failed to disclose; (2) to whom he failed to disclose it; (3) what legal duty required Mr. Sussmann to make the required disclosure; and (4) why the omission was material. See United States v. Safavian, 528 F.3d 957, 964 (D.C. Cir. 2008). [my emphasis]
It does so twice when asking that Durham address problems with his claims that Sussmann’s alleged lie was material.
The Indictment does make several allegations regarding materiality, and yet these allegations are vague, imprecise, and inconsistent. Suggesting the FBI might have asked more questions, taken other steps, or allocated resources differently, without specifying how or why it would have done so, leaves Mr. Sussmann having to guess about the meaning of the allegations that the Special Counsel has leveled against him. Accordingly, without prejudice to any pretrial motions Mr. Sussmann may make regarding materiality, Mr. Sussmann requests that the Court order the Special Counsel to provide more detail about why the purported false statement was material.
[snip]
Accordingly, without prejudice to any pretrial motions Mr. Sussmann may make regarding materiality, Mr. Sussmann requests that the Special Counsel be ordered to provide more detail about why the purported false statement was material. See Fed. R. Crim. P. 7(c)(1). [my emphasis]
And the motion does so again when pointing out that Durham hasn’t included specifics about another alleged lie, to just two of an unidentified number of people who attended a meeting at CIA, which Sussmann elsewhere describes as improper inclusion of 404(b) material in an indictment.
Without prejudicing any other motions Mr. Sussmann may make on this issue, the Special Counsel should first be required to clarify the false statement alleged to have been made to the two anonymous Agency-2 employees, and any other individuals present at the meeting, in February 2017. [my emphasis]
A list of things John Durham didn’t provide in his Michael Sussmann indictment
It’s only after making it clear that this is just his opening move before filing a motion to dismiss and other legal challenges to the indictment…
The Indictment is seriously vulnerable to challenge as a matter of law, and Mr. Sussmann will make relevant pretrial motions at the appropriate time. For now, Mr. Sussmann moves for a bill of particulars.
…that Sussmann lays out a list of things he claims he can’t figure out from Durham’s sloppy indictment:
For the foregoing reasons, this Motion for a Bill of Particulars should be granted, and the Court should order the Special Counsel to promptly:
A. Provide particulars regarding the specific false statement the Special Counsel alleges Mr. Sussmann made to Mr. Baker, namely:
1. The exact words of Mr. Sussmann’s alleged false statement;
2. The specific context in which the statement was made so that the meaning of the words is clear;
3. What part of the statement is allegedly false, i.e., whether the statement was false because Mr. Sussmann allegedly stated he was not “acting on behalf of any client in conveying particular allegations concerning a Presidential Candidate” as alleged in Paragraph 46, or if he falsely stated that he was not doing any “work” on behalf of a client more generally, as alleged in Paragraphs 4, 27(a), 28;
4. What is meant by “his work,” as referenced in Paragraph 4;
5. What is meant by “acting [or acted] on behalf of any client” as alleged in Paragraphs 27(a) and 30; and
6. What “this” refers to in the Assistant Director’s notes referenced in Paragraph 28.
B. Provide particulars regarding the statutory violation charged and, if applicable any alleged omissions, namely:
1. Which crime the Special Counsel believes Mr. Sussmann has committed; and
2. To the extent the Special Counsel alleges that Mr. Sussmann made a material omission in violation of 18 U.S.C. § 1001(a)(1), as suggested by Paragraph 30 of the Indictment –
a. the specific information Mr. Sussmann allegedly failed to disclose;
b. to whom he allegedly failed to make that disclosure;
c. what legal duty required Mr. Sussmann to disclose such information; and
d. why the allegedly omitted information was material.
C. Provide particulars regarding how the alleged false statement to Mr. Baker was material, specifically:
1. The “other reasons” Mr. Sussmann’s false statement was material, as alleged in Paragraphs 5 and 32;
2. What “his work” refers to as referenced in Paragraph 5, what about such work was unknown to the FBI, and how the “political nature of his work” was material to the FBI’s investigation;
3. How Mr. Sussmann’s alleged false statement was material to the FBI’s ability to “assess and uncover the origins of the relevant data and technical analysis,” as alleged in Paragraph 5, when Mr. Sussmann disclosed the origins of the data and technical analysis;
4. How Mr. Sussmann’s role as a paid advocate was materially “relevant” to the FBI’s investigation, as alleged in Paragraph 32, given that the information itself raised serious national security concerns and the FBI otherwise enables civilians to provide anonymous tips; and
5. What potential questions, additional steps, resource allocations, or more complete information the FBI would have gathered absent Mr. Sussmann’s false statement, as alleged in Paragraph 32.
D. Provide particulars regarding the alleged false statement Mr. Sussmann made to all Agency-2 employees and representatives, as alleged in Paragraphs 39 and 42, namely:
1. The exact words of Mr. Sussmann’s alleged false statement;
2. The specific context in which the statement was made so that the meaning of the words is clear;
3. What portion of the statement is allegedly false;
4. The identities of all individuals to whom the statement was made, including:
a. both Employee-1 and Employee-2 as referenced in Paragraph 42; and
b. anyone else present who also heard the false statement.
E. Provide particulars regarding the identities of the “representatives and agents of the Clinton Campaign” referenced in Paragraph 6.
Motions for a Bill of Particular rarely work
Make no mistake, most demands for a Bill of Particulars like this fail. The prosecution will argue that everything Sussmann needs is in the indictment and, if Judge Christopher Cooper agrees, Sussmann will just submit his motion to dismiss and other challenges like he’s clearly planning to do anyway.
That’s almost certainly what will happen for several of these requests, such as the names of Clinton Campaign personnel Durham accuses Sussmann of coordinating with on the Alfa Bank materials. But Sussmann likely doesn’t really need these names because he likely knows that Durham has nothing to substantiate this claim. If he did, Durham would have described such evidence in his speaking indictment. Sussmann may well know there are no names — of campaign personnel with whom he personally coordinated in advance of the James Baker meeting, at least — to give, because he didn’t coordinate with anyone from the campaign (Durham probably wants to substantiate this claim by charging Marc Elias in a conspiracy with Sussmann, but that all depends on being able to prove that anyone was lying about all this).
Similarly, Sussmann seems to know — and Durham may not — that there were more than just two people at a February 9, 2017 meeting at which Sussmann tried to bring new concerns to the attention of the government. This request seems to suggest there was at least one and possibly other witnesses who were at this meeting that Durham should know of who didn’t corroborate a claim that Sussmann lied, witnesses Durham didn’t mention in his indictment.
Likewise, Sussmann is unlikely to get very far asking for more details about Durham’s materiality claim, in particular, Durham’s repeated allegation that what he presented were just some, “among other reasons,” why Sussmann’s alleged lie was material. Prosecutors will argue that materiality is a matter for the jury to decide. But if Sussmann can force Durham to admit he has a theory of prosecution he hasn’t included in his indictment — that Durham believes that, rather than raising a real anomaly to the FBI’s attention because it was a real anomaly, lawyers who were paid by Hillary were trying to start a witch hunt against Donald Trump (never mind that the actual investigation that would prove at least three Trump officials, and probably Trump himself, got advance warning of a Russian attack on Hillary started three weeks before the meeting at which Sussmann is alleged to have lied) — then it will make it far easier for Sussmann to attack the indictment down the road.
What a false statement charge is supposed to look like
But Sussmann may succeed on his key complaint, that Durham has built a 27-page indictment around a false claim allegation without any means to clearly lay out what was the specific lie Sussmann told.
To understand what Sussmann means when he says,
It is simply not enough for the Indictment to make allegations generally about the substance of the purported false statement. Rather, the law requires that the Special Counsel identify the specific false statement made, i.e., the precise words that were allegedly used.
We can look at the false statements that Trump’s associates made to cover up the Trump campaign’s ties to Russia. For example, for each of six charged lies in the Roger Stone indictment, Mueller’s prosecutors quoted the precise questions he was asked as well as his response, then laid out specific evidence that each lie was a lie.
22. During his HPSCI testimony, STONE was asked, “So you have no emails to anyone concerning the allegations of hacked documents . . . or any discussions you have had with third parties about [the head of Organization 1]? You have no emails, no texts, no documents whatsoever, any kind of that nature?” STONE falsely and misleadingly answered, “That is correct. Not to my knowledge.”
23. In truth and in fact, STONE had sent and received numerous emails and text messages during the 2016 campaign in which he discussed Organization 1, its head, and its possession of hacked emails. At the time of his false testimony, STONE was still in possession of many of these emails and text messages, including:
a. The email from STONE to Person 1 on or about July 25, 2016 that read in part, “Get to [the head of Organization 1] [a]t Ecuadorian Embassy in London and get the pending [Organization 1] emails . . . they deal with Foundation, allegedly.”;
b. The email from STONE to Person 1 on or about July 31, 2016 that said an associate of Person 1 “should see [the head of Organization 1].”;
c. The email from Person 1 to STONE on or about August 2, 2016 that stated in part, “Word is friend in embassy plans 2 more dumps. One shortly after I’m back. 2nd in Oct. Impact planned to be very damaging.”;
d. Dozens of text messages and emails, beginning on or about August 19, 2016 and continuing through the election, between STONE and Person 2 in which they discussed Organization 1 and the head of Organization 1;
e. The email from STONE on or about October 3, 2016 to the supporter involved with the Trump Campaign, which read in part, “Spoke to my friend in London last night. The payload is still coming.”; and
f. The emails on or about October 4, 2016 between STONE and the high-ranking member of the Trump Campaign, including STONE’s statement that Organization 1 would release “a load every week going forward.”
For some of Stone’s charged lies, prosecutors even had communications with Jerome Corsi or Randy Credico or one of his lawyers showing Stone planned in advance to lie.
In George Papadopoulos’ statement of offense, for each of several lies outlined, prosecutors laid out specifically what he told the FBI and then laid out how Papadopoulos’ own communications records and his later testimony proved those statements to be false.
c. Defendant PAPADOPOULOS claimed he met a certain female Russian national before he joined the Campaign and that their communications consisted of emails such as, ‘”Hi , how are you?”‘ In truth and in fact, however, defendant PAPADOPOULOS met the female Russian national on or about March 24, 2016, after he had become an adviser to the Campaign; he believed that she had connections to Russian government officials; and he sought to use her Russian connections over a period of months in an effort to arrange a meeting between the Campaign and Russian government officials.
The most recent Mueller backup liberated by Jason Leopold reveals that, in addition to Papaodpoulos’ communications and later testimony that prove this particular claim to be an intentional lie, Papadopoulos also emailed the FBI on January 27 after consulting his records, laying out his claim that he met Olga before he joined the Trump campaign and never met her after that.
As promised, wanted to send you the name of the individual that Joseph Mifsud introduced me to over lunch in February or early March (while I was working with the London Center of International Law Practice and did not even know at that time whether or not I would even have moved back to the U.S. or especially worked on another presidential campaign).
He introduced her as his student, but was looking to impress her by meeting with me fresh off my Ben Carson gig. That is all I know. Never met her again.
I could go on for each of the false statements charged against Trump’s flunkies (and also show how, when Andrew Weissmann fell short of this kind of evidence, Amy Berman Jackson ruled against prosecutors on two of five claimed lies alleged in Paul Manafort’s plea breach determination).
Even Mike Flynn’s statement of offense, substantiating a charge that Trump loyalists have spent years wailing about, laid out clearly the two charged lies.
During the interview, FLYNN falsely stated that he did not ask Russia’s Ambassador to the United States (“Russian Ambassador”) to refrain from escalating the situation in response to sanctions that the United States had imposed against Russia. FLYNN also falsely stated that he did not remember a follow-up conversation in which the Russian Ambassador stated that Russia had chosen to moderate its response to those sanctions as a result of FL YNN’s request.
[snip]
During the January 24 voluntary interview, FLYNN made additional false statements about calls he made to Russia and several other countries regarding a resolution submitted by Egypt to the United Nations Security Council on December 21, 2016. Specifically FLYNN falsely stated that he only asked the countries’ positions on the vote, and that he did not request that any of the countries take any particular action on the resolution. FLYNN also falsely stated that the Russian Ambassador never described to him Russia’s response to FL YNN’s request regarding the resolution.
Not only did prosecutors describe what a transcript of these calls said, but they also had testimony from both Flynn himself and KT McFarland substantiating that these were lies. They even had a text that Flynn sent McFarland, before any of these intercepts had leaked, that Flynn later admitted he had deliberately written to cover up the content of his calls with Sergey Kislyak.
Then, after Sidney Powell spent six months trying to claim that one of Flynn’s lies wasn’t clearly laid out in his original 302, Judge Emmet Sullivan meticulously pointed out that the notes of both FBI interviewers matched every iteration of Flynn’s 302.
Having carefully reviewed the interviewing FBI agents’ notes, the draft interview reports, the final version of the FD302, and the statements contained therein, the Court agrees with the government that those documents are “consistent and clear that [Mr. Flynn] made multiple false statements to the [FBI] agents about his communications with the Russian Ambassador on January 24, 2017.” Gov’t’s Surreply, ECF No. 132 at 4-5. The Court rejects Mr. Flynn’s request for additional information regarding the drafting process for the FD-302s and a search for the “original 302,” see Def.’s Sur-Surreply, ECF No. 135 at 8- 10, because the interviewing FBI agents’ notes, the draft interview reports, the final version of the FD-302, and Mr. Flynn’s own admissions of his false statements make clear that Mr. Flynn made those false statements.
These are what false statements charges are supposed to look like. They’re backed by contemporaneous admissible evidence and laid out in specific detail in charging documents.
Trump and his supporters have wailed for years about these charges. Except prosecutors had evidence to substantiate them, the kind of evidence Durham makes no claim to have.
What few witnesses Durham has may not all agree on Sussmann’s alleged lies
Sussmann is more likely to succeed with his request to have his alleged false statement laid out in quote form and in context — and even if he doesn’t, he may back Durham into a corner he doesn’t want to be in — because Sussmann has presented several central questions about what the allegation really is. Is it that Sussmann didn’t offer up that he was working with (Sussmann claims) Rodney Joffe or (Durham also alleges) Hillary on the Alfa Bank issues? Is it that Sussmann falsely claimed not to be billing the meeting with James Baker (evidence of which Durham has not presented)? Or does Durham have any shred of evidence that Baker affirmatively asked Sussmann, “are you sharing this on behalf of a client,” or even less supported in the indictment, “are you sharing this on behalf of Trump’s opponent, Hillary Clinton”? Similarly, Durham doesn’t explain whether when he claims that Sussmann lied about “this,” or “his work,” he means about the meetings that were actually billed to Hillary’s campaign internally at Perkins Coie (even if Hillary paid no money specifically tied to those meetings), or that the meeting with Baker was billed to one or another client (no evidence of which Durham presents). Those details will all be necessary for Durham to prove his case and for Sussmann to rebut it. And Sussmann needs to know whether he should focus his time on the absence of billing records substantiating that he met with Baker and then billed it to Hillary (something implicated by the meaning of “this” and “his work”), or whether he needs to focus on showing whether Priestap distinguished these allegations from the other claims about a Russian information operation undeniably targeting Hillary (something implicating whether this is supposed to be a crime of commission or omission).
It’s quite possible that Durham has presented these allegations using such squishy language because what little evidence he has doesn’t actually agree on the claimed lies. That is, it may be that Baker believes Sussmann simply didn’t bother explaining which client he was working for, but Bill Priestap, the next in line in a game of telephone, differently understood from Baker’s report that Sussmann affirmatively failed to provide Baker information that (Priestap’s own notes prove) the FBI already had anyway, that he was working with Hillary Clinton.
If, having had these weaknesses laid out by Sussmann’s attorneys, Durham can show that all his evidence actually substantiates the same false claim, he could get a superseding indictment making that clear. But once he does that, it may tie his hands at trial.
But it’s distinctly possible that Durham can’t prove that what little evidence he has backs the same interpretation of Sussmann’s alleged lie. That is, there may be a reason — on top of the fact that he has no contemporaneous transcript from a witness — that he avoided being more specific in his indictment, and that’s because it was the only way he could cobble together enough evidence to get a grand jury to indict.
So while much of the rest of this motion of a Bill of Particulars may serve only to call attention to gaping holes in the rest of the indictment, the request for specifics about what, specifically, Sussmann is alleged to have said when he lied may succeed. And even if it doesn’t, it may force Durham to commit to an interpretation that not all of his thin evidence would ultimately support.
https://www.emptywheel.net/wp-content/uploads/2020/08/440px-John_H._Durham-e1635469881685.jpg293439emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2021-10-07 09:26:162021-10-10 06:28:14Michael Sussmann Attempts to Bill [of Particulars] Durham for His Sloppy Indictment Language
