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How DOJ Worked Overtime to Avoid Connecting the Dots in the Whistleblower Complaint

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As the legal saga of Lev Parnas and Igor Fruman plays out against the background of an impeachment inquiry launched when DOJ tried to bury a whistleblower complaint, DOJ has been forced to offer a series of increasingly inconsistent explanations about who at DOJ knew what when. I’ve been working on a timeline examining What Did Bill Barr Know and When Did He Know It (that work in progress appears below). While I’m not ready to answer that question, one thing is clear: the personnel under Brian Benczkowski who reviewed and dismissed the complaint in August could not have followed normal process on assessing a referral if NYT’s reporting and Benczkowski’s most recent claims are true.

Benczkowski tries to prevent Rudy Giuliani from implicating him in his crimes

I’m speaking of a comment that Benczkowski had released to NYT for an October 20 story explaining why Benczkowski and fraud investigators would be willing to hear Rudy Giuliani pitch a client’s case when he was under active investigation for influence peddling in SDNY himself.

“When Mr. Benczkowski and fraud section lawyers met with Mr. Giuliani, they were not aware of any investigation of Mr. Giuliani’s associates in the Southern District of New York and would not have met with him had they known,” said Peter Carr, a department spokesman.

That comment was a response to this Rudy-sourced Ken Vogel story that revealed the meeting, though without any of the answers as to Who What When questions that normally appear in finished news stories. The story may have been Rudy’s attempt to do the same thing he did as his shenanigans at State became public, raise the costs of making him the sole scapegoat by making it clear that his activities had high level knowledge and approval by Trump officials at the agency in question. That is, Rudy may have been making sure that if he gets in trouble for influence peddling, Brian Benzckowski will be implicated as well.

Importantly, both NYT stories on the meeting say the meeting happened a few weeks before October 18, a timeline that DOJ sources may be walking back in time considerably to “earlier this summer” included in this CNN article. One of the only ways for all these descriptions of timing be true is if the meeting took place around September 20, which would make it highly likely it involved Victoria Toensing, since Rudy was pictured meeting her and Lev Parnas across the street from DOJ that same day. (h/t DK for that insight) If it did (or if the descriptions of the meeting taking place a few weeks before October 18 are correct), then it means the meeting happened after DOJ reviewed and dismissed the whistleblower complaint about Trump’s July 25 call with Volodymyr Zelensky in late August.

As I’ll show below, the Peter Carr quote to the NYT might be true. But if it is, it means that well-connected Republicans can get a meeting with the Assistant Attorney General with almost no due diligence.

But if the Carr quotation is true (and if the timing of the meeting described to NYT is correct), then it is an on-the-record admission on behalf of Benczkowski that investigators working underneath him who reviewed and dismissed the whistleblower complaint did not follow procedures designed to keep our nation safe that have been codified since 9/11.

Benczkowski’s claim he didn’t know ignores what DOJ knew

Benczkowski’s explanation in the October 20 NYT story is based on a further one that suggests the only way he could have known about the criminal investigation into Parnas, Fruman, and Rudy is if a subordinate informed him directly.

While the Southern District of New York has been investigating Mr. Giuliani’s associates — an inquiry that may be tied to a broader investigation of Mr. Giuliani himself — prosecutors there had not told Mr. Benczkowski of the Criminal Division of the case, as he does not oversee or supervise their work. The United States attorney’s offices report to the deputy attorney general, Jeffrey A. Rosen.

Prosecutors in Manhattan informed Attorney General William P. Barr about the investigation of Mr. Parnas and Mr. Fruman soon after he was confirmed in February, according to a Justice Department official.

DOJ has locked into a statement that Bill Barr had been briefed on this investigation shortly after he was confirmed in February and repeatedly thereafter since the day the arrest of the Ukrainian grifters became public. But Benczkowski claims he didn’t know about it because he’s not in that chain of command. SDNY reports to the Deputy Attorney General, which would have been Rod Rosenstein when Barr was initially briefed, but would be Jeffrey Rosen in any of the briefings DOJ has admitted to since.

This table attempts to summarize what DOJ learned of Parnas, Fruman, and Rudy when. It’s incomplete in at least one important respect, as I’ll show. But it captures most of the ways DOJ and FBI would have been informed about parts of the Ukrainian grift.

Remarkably, we don’t yet know how the SDNY came to open the investigation. It could have been a Mueller referral, SDNY could have discovered the grift from something that happened in NYC (though the venue that ultimately got laid out in the indictment suggests the obvious signs of corruption took place in FL), or it could have stemmed from a Campaign Legal Center complaint filed with the FEC on July 25, 2018. But by the time Barr was briefed in February, we should assume that DOJ knew at least as much as CLC knew the summer before, which is that Parnas and Fruman had set up a shell company, Global Energy Producers, that they were using to make big donations to Republicans, including a $325,000 donation to a Trump SuperPAC just days after Parnas and Fruman met with Trump at the White House. That’s what Barr would have learned when he got briefed shortly after he was confirmed on February 14: that these Ukrainian-Americans were giving straw donations to Republicans in apparent coordination with key meetings with the recipients.

Here’s where the gap in this table comes in. Someone trying to spin the CNN for its version of the Benczkowski quote claimed that Rudy was not yet a focus of the SDNY investigation at the time Barr was briefed (the claim is silent, however, about all the other times Barr was briefed, per an October 10 statement from DOJ). Nevertheless, as CNN lays out, that claim is probably not true, because a NY lawyer was already getting questions from FBI counterintelligence agents by that time.

A person familiar with the matter said that at the time, Giuliani wasn’t a central figure in the case as he is now. That emerged in recent weeks, the person said.

Still, New York federal prosecutors had their eyes set on Giuliani months ago. A New York lawyer told CNN that FBI counterintelligence agents asked him questions in February or March related to Giuliani and his associates.

The day after the Ukrainian grifters’ arrest became public, NYT reported that Rudy was under investigation for FARA (for activities that extend well beyond his Ukraine work). Particularly given that the National Security Division is setting up a unit to prosecute FARA violations, that, plus the involvement of CI agents, should involve NSD and therefore would suggest that NSD head John Demers would know of the focus on Rudy. That can’t be guaranteed, however, because SDNY often does its own thing. So that’s the gap: We don’t know when Demers would have first learned that Rudy’s under investigation for his sleazy influence peddling.

We do know, however, that sometime in May, State Department’s Inspector General Steve Linick sent FBI (we don’t know which unit) the “Rudy Dossier,” the disinformation developed as part of his Ukraine work. Among the things that dossier includes is an email via which John Solomon sent a draft of this article to Rudy, Victoria Toensing, and Lev Parnas. Whoever received that dossier should have immediately identified that Parnas and Rudy were under active criminal investigation in SDNY for influence peddling, a topic on which that email would be directly relevant. In addition to Victoria Toensing and Rudy, the packet would also directly implicate the White House and Mike Pompeo, because the packet was sent under White House imprimatur to the Secretary of State. So by May, that dossier should have been in Parnas and Rudy’s investigative file. Except that, when Linick asked FBI if they were cool with him sharing the dossier with Congress, they were, which suggests it may not have been added to the investigative file.

Assuming that the vaunted SDNY is at least as sharp as a small campaign finance NGO, then by the time CLC updated their SEC complaint on June 20, SDNY would have known what that GEP’s straw donations (including a $325,000 donation to a Trump SuperPAC) came immediately after Parnas got a $1.2 million infusion from a lawyer who helps foreigners launder money through real estate, something that should have raised further counterintelligence and foreign campaign donation concerns.

After that, the whistleblower complaint comes into DOJ, in two different forms. The first time, it comes when CIA General Counsel Courtney Simmons Elwood and White House Associate Counsel John Eisenberg inform John Demers (who, remember, may or may not know about a FARA investigation into Rudy by this point). Demers went to the White House and reviews the transcript, which would have informed him that multiple people were concerned about the call, that Trump invoked both Rudy and Demers’ boss, Bill Barr, on the call, and that Trump was soliciting dirt related to both the investigation into the Russian operation in 2016 (ongoing parts of which Demers still oversees) and Trump’s imagined 2020 opponent, Joe Biden. If Demers did know that Rudy was under investigation for FARA at this time, Trump’s request that Ukraine share dirt with Rudy would have been directly relevant to that investigation, but in a way that implicated Demers’ boss as well. In any case, a simple database search would have revealed that, along with the $1.2 million cash transfer raising additional concerns about foreign money backing those campaign efforts.

Demers’ reported response to reading the transcript was to tell Brian Benczkowski (who claims not to have known about Parnas and Fruman, but whose Peter Carr quote was silent about whether he knew of any investigation into Rudy) and Jeffrey Rosen (who was probably confirmed after Barr’s first briefing on Parnas and Fruman, but who is currently Geoffrey Berman’s supervisor and so should be in the loop in the subsequent briefings that DOJ admitted Barr had after that initial briefing.

According to public reports, DOJ did nothing with this initial complaint.

DOJ avoids (admitting to) reviewing the full whistleblower complaint based off a false claim it doesn’t include direct knowledge

But then the whistleblower tried again, going to the Intelligence Community Inspector General and writing up his complaint, which then got referred to Brian Benczkowski and some public integrity investigators. According to Kerri Kupec, here’s what happened next.

In August, the Department of Justice was referred a matter relating to a letter the director national intelligence had received from the inspector general for the intelligence community regarding a purported whistleblower complaint. The inspector general’s letter cited a conversation between the president and Ukrainian President Zelensky as a potential violation of federal campaign finance law, while acknowledging that neither the inspector general nor the complainant had firsthand knowledge of the conversation,” Kupec said.

“Relying on established procedures set forth in the justice manual, the department’s criminal division reviewed the official record of the call and determined based on the facts and applicable law that there was no campaign finance violence and that no further action was warranted. All relevant components of the department agreed with this legal conclusion, and the department has concluded this matter,” Kupec concluded.

In another statement, Kupec said that Barr had not spoken with Mr. Trump about Ukraine investigating Biden, and that the president had not asked Barr to contact Ukraine or Giuliani.

In explaining how DOJ came to dismiss this complaint, Kupec cites not from the complaint itself, but from Michael Atkinson’s letter conveying the complaint. Kupec cites from the letter, which notes the whistleblower “was not a direct witness to the President’s telephone call,” and uses that to treat only the transcript of the call — not the broader whistleblower complaint itself, which does include firsthand knowledge — as the official record. And, having referred to just the call, DOJ viewed this as exclusively a campaign finance matter, and therefore dismissed it (DOJ ignores another crime laid out in Atkinson’s letter, a crime Mick Mulvaney has now confessed to, but I’ll come back to how they managed to ignore that).

In fact, parts of the whistleblower complaint make it clear that he was a direct witness to aspects of his complaint, and so DOJ should have treated the complaint itself as an official document (this is why the frothy right invested so much energy into the goddamned whistleblower form, to rationalize DOJ’s decision not to read the actual complaint).

Had DOJ read the complaint and done the most basic investigative work on the materials included in the complaint, they (including Benczkowski) would have known that Trump’s call related directly to matters under active investigation in SDNY.

While the whistleblower complaint does not mention Parnas and Fruman by name, it repeatedly invokes this OCCRP profile (see footnotes 4, 9, 10, 11), The profile would have made it crystal clear — if DOJ’s investigators couldn’t figure it out for themselves — how the evidence that SDNY was already reviewing (including the campaign finance stuff and the Rudy dossier) connected directly with the July 25 call.

Since early last year, the men have emerged from obscurity to become major donors to Republican campaigns in the United States. They have collectively contributed over half a million dollars to candidates and outside campaign groups, the lion’s share in a single transaction that an independent watchdog has flagged as a potential violation of electoral funding law.

The men appear to enjoy a measure of access to influential figures. They’ve dined with Trump, had a “power breakfast” with his son Donald Jr., met with U.S. congressmen, and mixed with Republican elites.

Months before their earliest known work with Giuliani, Parnas and Fruman also lobbied at least one congressman — former U.S. Rep. Pete Sessions, a Texas Republican — to call for the dismissal of the United States’ ambassador to Ukraine, Marie Yovanovitch. She stepped down a year later after allegations in the conservative media that she had been disloyal to Trump.

While setting up meetings for Giuliani with Ukrainian officials, the men also promoted a business plan of their own: Selling American liquefied natural gas to Ukraine to replace Russian imports disrupted by war.

Three days before the call itself, OCCRP and BuzzFeed had already laid out parts of the crime that SDNY has since indicted. And that profile was part of the whistleblower complaint provided to DOJ, in which DOJ claimed they could find no evidence of a crime.

FBI’s three investigative levels are Full Investigations (opened once FBI has evidence that a crime has occurred), Preliminary Investigations (opened once FBI has reason to believe a crime has been committed), and Assessments (the work FBI does to assess the credibility of tips). FBI Agents are expected — encouraged, explicitly, as a matter of national security — to do searches of FBI’s existing investigative databases at the Assessment level. They do this not just to make sure that suspected foreign agents like Parnas and Fruman aren’t allowed to insinuate themselves into top tiers of power unnoticed, but also for deconfliction, to make sure DOJ knows precisely which part of DOJ is investigating which people.

Had FBI followed its DIOG based on the information included in the whistleblower complaint, it would have been crystal clear that the July 25 call related to an ongoing Full Investigation, and the July 25 call — and the President’s extortion — would have been made part of that investigative record.

The Criminal Division Chief has confessed it did not follow protocols in reviewing this complaint

All of which brings me full cycle to DOJ’s efforts to pretend they didn’t know that Rudy was a suspected criminal when they met with him to discuss the accused criminals he represents.

Brian Benczkowski, the head of the Criminal Division (and yet, someone who has never prosecuted a case), claims that he had no way of knowing that Rudy Giuliani’s clients and co-conspirators were about to be indicted when he met with Rudy on some date no one wants to reveal. That may be true — though if it is, it means either his staffers did almost no due diligence before setting up that meeting, or the fact that Rudy, in addition to Parnas and Fruman, was under active investigation did not dissuade Benczkowski from taking the meeting.

But, if the meeting took place after the whistleblower review, as multiple reporters at NYT seem to believe it did, for him to claim that he didn’t know about Parnas and Fruman also amounts to an explicit confession that the investigators reviewing the whistleblower complaint did not follow FBI guidelines requiring them to look up all the names in a tip to see if the FBI already knows about them.

That is, Brian Benczkowski, in trying to claim ignorance of Rudy’s own legal problems in advance of that meeting, confessed that his division, hiding behind whatever false excuses, did not properly investigate the whistleblower complaint.

February 14: Barr sworn in.

February, undated: Barr and Public Integrity lawyers reporting to Brian Benczkowski briefed on investigation into Lev Parnas and Igor Fruman, though NYT reported lawyer questioned about Rudy in that time period.

March 5: Barr briefed on Mueller investigation.

March 22: Mueller investigation concludes.

March 24: Barr releases misleading “summary” of Mueller Report.

March 26: John Solomon posts column first reviewed by Joe DiGenova, Victoria Toensing, and Lev Parnas

April 19: DOJ releases redacted Mueller Report.

May, undated: State IG Steve Linick receives Rudy dossier, passes on to FBI.

May 31: Barr does interview explaining his Durham investigation without once explaining any irregularities to justify investigation.

June 20: Campaign Legal Center submits supplemental complaint to FEC.

July 18: OMB informs Departments that Trump has ordered suspension of all aide to Ukraine.

July 25: Trump-Zelensky phone call.

Week after call: Whistleblower informs CIA General counsel Courtney Simmons Elwood, who speaks several times to NSC lawyer John Eisenberg.

August 12: Date of whistleblower complaint.

August 14: Elwood and Eisenberg inform National Security Division head, John Demers.

August 15: Demers reads transcript of call. Senior DOJ officials, including Jeffrey Rosen, Brian Benczkowski, and Barr informed.

The deputy attorney general, Jeffrey A. Rosen, and Brian A. Benczkowski, the head of the department’s criminal division, were soon looped in, according to two administration officials.

Department officials began to discuss the accusations and whether and how to follow up, and Attorney General William P. Barr learned of the allegations around that time, according to a person familiar with the matter. Although Mr. Barr was briefed, he did not oversee the discussions about how to proceed, the person said.

August 26: IG Michael Atkinson hand delivers message on whistleblower complaint to Acting DNI Joseph Maguire.

September 3: Original classified OLC memo deeming the whistleblower complaint “not urgent,” treating Barr’s involvement as Top Secret.

September 20: Rudy, Parnas, Victoria Toensing and Joe DiGenova lunch at Trump International across the street from DOJ. Rudy also attends State Dinner for Australia.

September 24: Declassification of Telcon. Version of OLC memo hiding Barr’s involvement as classified issue.

September 26: Release of TelCon and whistleblower complaint. Justice Department explains non-prosecution:

In August, the Department of Justice was referred a matter relating to a letter the director national intelligence had received from the inspector general for the intelligence community regarding a purported whistleblower complaint. The inspector general’s letter cited a conversation between the president and Ukrainian President Zelensky as a potential violation of federal campaign finance law, while acknowledging that neither the inspector general nor the complainant had firsthand knowledge of the conversation,” Kupec said.

“Relying on established procedures set forth in the justice manual, the department’s criminal division reviewed the official record of the call and determined based on the facts and applicable law that there was no campaign finance violence and that no further action was warranted. All relevant components of the department agreed with this legal conclusion, and the department has concluded this matter,” Kupec concluded.

In another statement, Kupec said that Barr had not spoken with Mr. Trump about Ukraine investigating Biden, and that the president had not asked Barr to contact Ukraine or Giuliani.

September 29: AP claims Barr was “surprised and angry” when he learned he had been lumped in with Rudy. His further denials include a lot of wiggle room (including unofficial contacts).

Barr has not spoken with Trump about investigating Biden or Biden’s son Hunter, and Trump has not asked Barr to contact Ukranian officials about the matter, the department said. Barr has also not spoken with Giuliani about anything related to Ukraine, officials have said.

October 1: State IG Steve Linick briefs Congress on opposition packet routed to him from Pompeo. Preservation letters to Parnas and Fruman.

October 4: Initial rough date for Rudy meeting with Benczkowski.

October 9: Parnas and Fruman lunch with Rudy at Trump Hotel across from DOJ, later that eventing they are indicted and arrested.

October 10: Lev Parnas and Igor Fruman arrest unsealed. Anonymous DOJ sources report that Barr was briefed in February and “in recent weeks.”

Attorney General William Barr was briefed on the case in February, shortly after he was confirmed. Barr has received additional briefings in recent weeks and fully supports the case.

October 11: NYT reports that Rudy under investigation for Ukraine work.

October 18: NYT reports that Rudy was lobbying Brian Benczkowski and lawyers from Fraud section “a few weeks ago” about a very sensitive bribery case.

October 20: NYT story with on-the-record quote from Peter Carr states Benczkowski and fraud section lawyers would not have met with Giuliani if they had known of the investigation of his associates; it describes the meeting as taking place “several weeks ago.”

October 21: CNN adds DOJ clarification that Rudy was not central to investigation briefed to Barr in February, even though CI Agents were questioning witnesses by March, and that Public Integrity lawyers (who report to Benczkowski) were briefed.

The Carr Correction and the Barr Pseudo Exoneration

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Last week, Buzzfeed released part of a package of materials that Michael Cohen’s lawyers provided to Congress in what appears a last minute bid to stay out of prison. While it still represents just Cohen’s self-interested view (and not any of the corroborating information that Mueller’s team surely has), it makes it clear why Buzzfeed felt justified in claiming that Trump “directed” Cohen to lie. The most shocking new detail is that after Cohen testified, Trump’s lawyer (this package doesn’t reveal whether it was Jay Sekulow or someone else) called Cohen to congratulate him.

Trump knew with certainty that Cohen continued to discuss the Moscow Trump Tower project well beyond January 31, 2016. Yet after the testimony, Cohen received a call from Trump’s attorney, who congratulated him on the testimony – and said his “client” was happy with Cohen’s testimony.

Still, a call from one lawyer in a joint defense agreement to someone else in the JDA — a call that by description Cohen didn’t record — is not sufficient evidence to charge someone with suborning perjury.

Nevertheless, this new evidence may explain why Buzzfeed remains confident in its characterization that Trump directed Cohen to lie.

More importantly, it raises even more questions about why Peter Carr corrected the Buzzfeed characterization. As I noted at the time, someone from Rod Rosenstein’s office called Mueller’s office before they did make a correction. And the next day, Rudy Giuliani claimed credit for getting Mueller to correct the story.

And here we are, not three months later, learning new details of how closely involved Trump’s lawyers were in orchestrating Cohen’s testimony while Attorney General Bill Barr (who had been appointed but not confirmed at the time of the story) withholds Mueller’s own view of those documents, and just weeks after Barr and Rosenstein usurped the role of Congress to declare that the President’s behavior — including efforts, however inadequately supported by admissible evidence, to suborn perjury — does not amount to criminal obstruction of justice.

The details behind Rosenstein’s call and Rudy’s victory lap are not yet public; they’re certainly something the House Judiciary Committee should pursue.

But we can see how important that correction, unique in the history of the Mueller investigation, was to what has come since. The Buzzfeed story elicited the kinds of response that the long trajectory of seeing Trump direct lies should have, the recognition that that such actions might amount to impeachable offenses (which is different than Barr’s judgment about obstruction of justice, even assuming many things didn’t make that judgment suspect). By “correcting” a statement that seems utterly reasonable now, DOJ preserved the opportunity for Rosenstein and Barr to weigh in, however inappropriately.

Even at the time, it appeared that Rosenstein’s (office’s) intervention and Rudy’s victory lap (to say nothing of the campaign rolled out against Buzzfeed, including CNN doing a hit piece against Jason Leopold) should have gotten more attention than the hyperparsing of a word that was readily explainable on its face. That’s all the more clear now.

Had Buzzfeed not been corrected for what now seems an even more defensible word choice, Barr would not have had the opportunity to put his thumb on the scale of injustice.

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

Michael Cohen’s Testimony: Metacommentary

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Michael Cohen’s statement to the House Oversight Committee is here. I’d like to make three meta-comments about what he says about the Russian investigation (which is technically outside the scope of today’s hearing but what the fuck, he’s going to prison anyway…).

Why Cohen claimed he knew that Trump knew of the June 9 meeting ahead of time

After he pled guilty, Cohen claimed he was a meeting where Trump spoke of the June 9 meeting ahead of time. Later, he backed off any claim of knowing about the meeting in advance.

Here’s what he based that initial claim on:

Sometime in the summer of 2017, I read all over the media that there had been a meeting in Trump Tower in June 2016 involving Don Jr. and others from the campaign with Russians, including a representative of the Russian government, and an email setting up the meeting with the subject line, “Dirt on Hillary Clinton.” Something clicked in my mind. I remember being in the room with Mr. Trump, probably in early June 2016, when something peculiar happened. Don Jr. came into the room and walked behind his father’s desk – which in itself was unusual. People didn’t just walk behind Mr. Trump’s desk to talk to him. I recalled Don Jr. leaning over to his father and speaking in a low voice, which I could clearly hear, and saying: “The meeting is all set.” I remember Mr. Trump saying, “Ok good…let me know.”

What struck me as I looked back and thought about that exchange between Don Jr. and his father was, first, that Mr. Trump had frequently told me and others that his son Don Jr. had the worst judgment of anyone in the world. And also, that Don Jr. would never set up any meeting of any significance alone – and certainly not without checking with his father. I also knew that nothing went on in Trump world, especially the campaign, without Mr. Trump’s knowledge and approval. So, I concluded that Don Jr. was referring to that June 2016 Trump Tower meeting about dirt on Hillary with the Russian representative when he walked behind his dad’s desk that day — and that Mr. Trump knew that was the meeting Don Jr. was talking about when he said, “That’s good…let me know.”

Particularly absent a real date, all this exchange tells us is that Don Jr was setting up really sensitive meetings that Trump knew about. It’s possible it was an entirely different criminal meeting. Or it’s possible that this was about the June 9 meeting.

Ultimately, if Mueller wants to charge a conspiracy, he doesn’t need to prove that Trump knew in advance, because Trump took so many other overt acts that made it clear he was part of this conspiracy, including coordinating a public statement about it with Vladimir Putin.

But Trump probably knew in advance.

How to suborn perjury

In the wake of the BuzzFeed article and Peter Carr “correction” — which I suggested reflected different priorities about the role of Trump in lying about the Trump Tower Moscow deal –I suggested that Trump’s flunkies don’t need to be told to lie by him. They just do it.

Cohen’s statement confirms that’s what happened.

I lied to Congress about when Mr. Trump stopped negotiating the Moscow Tower project in Russia. I stated that we stopped negotiating in January 2016. That was false – our negotiations continued for months later during the campaign. Mr. Trump did not directly tell me to lie to Congress. That’s not how he operates. In conversations we had during the campaign, at the same time I was actively negotiating in Russia for him, he would look me in the eye and tell me there’s no business in Russia and then go out and lie to the American people by saying the same thing. In his way, he was telling me to lie. There were at least a half-dozen times between the Iowa Caucus in January 2016 and the end of June when he would ask me “How’s it going in Russia?” – referring to the Moscow Tower project. You need to know that Mr. Trump’s personal lawyers reviewed and edited my statement to Congress about the timing of the Moscow Tower negotiations before I gave it. To be clear: Mr. Trump knew of and directed the Trump Moscow negotiations throughout the campaign and lied about it. He lied about it because he never expected to win the election. He also lied about it because he stood to make hundreds of millions of dollars on the Moscow real estate project.

There’s still more that needs to be told about the response to the BuzzFeed story, most notably why Mueller’s office chose to issue a “correction” when they hadn’t for more egregiously erroneous reporting. Hopefully, the outlets that credulously repeated the DOJ line will chase that down. Hopefully, too, the Big Dick Toilet Salesman will be asked to explain his own role in that “correction” when he takes a Mulligan on telling the truth to Congress.

Mueller isn’t telling us everything

Cohen will testify that he was in Trump’s office one day, before the DNC Convention, when Roger Stone was put through and Trump put the rat-fucker on the speaker phone.

In July 2016, days before the Democratic convention, I was in Mr. Trump’s office when his secretary announced that Roger Stone was on the phone. Mr. Trump put Mr. Stone on the speakerphone. Mr. Stone told Mr. Trump that he had just gotten off the phone with Julian Assange and that Mr. Assange told Mr. Stone that, within a couple of days, there would be a massive dump of emails that would damage Hillary Clinton’s campaign. Mr. Trump responded by stating to the effect of “wouldn’t that be great.”

Likely, Stone was once again overselling his access to Assange. Likely, this came via a cut-out. It’s likely Stone learned about this from his meeting with Nigel Farage at the RNC.

But it is an example of the kinds of details that Mueller — in spite of his speaking indictment of Stone — was trying to keep secret. It shifts Stone’s knowledge of WikiLeaks earlier than the indictment. It also makes it far more likely that Trump is the one who ordered someone to find out from Stone what more was coming.

The biggest takeaway from seeing clarifications about what a Mueller witness said is this: Mueller is working to preserve the credibility of a bunch of sleazy sources. And the sources likely don’t understand that they don’t have to place Trump with a smoking gun. Because of the way conspiracy law works. it’s enough to show that Trump willingly entered into the conspiracy and took many overt acts to pursue the objects of the conspiracy.

Cohen’s more accurate testimony does that.

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

Rudy Is Relying on Tapes to Claim Buzzfeed Is Phony: But There Aren’t Tapes of Everything

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Yesterday, I noted that Rudy could not be sure the Buzzfeed story was phony when Trump’s lawyers called Mueller’s office Friday, because the White House should have no knowledge of what Michael Cohen said in his interviews with law enforcement.

Today, the New Yorker provided Rudy’s latest splutter explaining why he believed he could be sure the story was phony.

Where are we now with Trump and Cohen and the BuzzFeed story, and your response to it?

I guess the BuzzFeed story—I don’t remember what it said about Cohen—but it said there was corroboration that the President talked to Cohen and told him to lie about, I guess it was, the Moscow proposal. There are no tapes, there are no texts, there is no corroboration that the President told him to lie. That’s why the special counsel said that the story was inaccurate. First time the special counsel has ever done that. As a prosecutor, having done that for fifteen years, that is quite a heavy rebuke of BuzzFeed. And the reality is that the President never talked to him and told him to lie. And I don’t know what Cohen is saying, but certainly the idea that two federal agents said that there was corroboration is totally untrue.

Did President Trump’s lawyers or you yourself reach out to the special counsel’s office after the story, as has just been reported?

I can’t discuss that. President Trump would not have done that. If anybody would have done it, obviously it would have been his lawyers, and I really can’t discuss that. That would be confidential.

Do you—

But I can tell you, from the moment I read the story, I knew the story was false.

Because?

Because I have been through all the tapes, I have been through all the texts, I have been through all the e-mails, and I knew none existed. And then, basically, when the special counsel said that, just in case there are any others I might not know about, they probably went through others and found the same thing.

Wait, what tapes have you gone through?

I shouldn’t have said tapes. They alleged there were texts and e-mails that corroborated that Cohen was saying the President told him to lie. There were no texts, there were no e-mails, and the President never told him to lie.

So, there were no tapes you listened to, though?

No tapes. Well, I have listened to tapes, but none of them concern this.

This passage explains everything we need to know both about why Mueller’s office set the bar on Cohen’s testimony where they did, and why the White House responded the way it did.

But it doesn’t mean Rudy can be certain that Cohen didn’t tell authorities that Trump ordered him to lie.

Remember that when Cohen was raided, Trump squealed like having his fixer raided was the biggest constitutional crime of the century. Both Trump Org and Trump himself insisted on paying $1 million to get a special master appointed to conduct the privilege review.

The results were expansive and seemingly an expensive dud for Trump. Special Master Barbara Jones ended up finding just 7,434 items out of boxes and boxes of evidence to be privileged. There were 57 other items Trump and friends wanted to claim were privileged, but not enough to argue why they were publicly.

In her summary, Jones described that altogether 7,434 items had been deemed privileged. Trump and or Cohen had objected to Jones’ designations with regards to 57 items, but were unwilling to fight to have Wood overrule Jones’ designation if their arguments would be public.

It was part way through the Special Master process when Cohen started talking about being abandoned by Trump and warming up to flipping on the guy he had been loyal to for so long.

On July 2 and July 13, Jones started releasing big chunks of non-privileged items. Almost 2.2 million items were turned over. On July 10, Cohen moved to share all these materials with Guy Petrillo. By this point, Cohen felt he had been abandoned by Trump and was preparing to flip against his client. July 23 is when Jones reported that Cohen and Trump had withdrawn designations of privilege with respect to 12 audio files, which were then released to the government (and began to be leaked on cable shows).

I guess I was wrong when I said this process was an expensive dud. Trump’s lawyers weren’t using it to assert privilege over stuff they knew was mostly not.

They were using it to assess how much damage Cohen could do to the President. Once they reviewed that discovery, they recognized they didn’t have to continue to dangle a pardon for Cohen, because there wasn’t documentary or recorded evidence to back up the most damning allegations he might make against the President. It’d just be Cohen’s word against Trump’s.

And that’s the basis on which the White House contacted Mueller’s office Friday: Having reviewed everything seized from Cohen’s raid, including any tapes Cohen made of conversations with Trump, they believed they could assert to Mueller’s office that the Buzzfeed story was not true.

This also explains why Mueller set the bar on Cohen’s allocution where he did. Cohen may well have told Mueller that he believed Trump ordered him to lie. Trump likely did! Certainly, Rudy is not denying that happened. But unless Cohen recorded that conversation — as he did for the hush payments — then Mueller is not going to set himself up to have to prove that. That necessarily partly explains (in addition to the issues I raised here) the difference in how SDNY allocuted Cohen and how Mueller did. SDNY has tapes, courtesy of Cohen, of Trump ordering him to pay off his sex partners; Mueller does not have tapes, courtesy of Cohen, of Trump ordering Cohen to lie to Congress.

That said, Rudy still should have no basis for asserting what Cohen has said to one or another law enforcement agent. While it’s not clear what Cohen’s status was at various times of this process, he would only have been recorded by the FBI if he was in custody. And the White House should not have his 302s (nor might they have all the other materials from others who have been interviewed, though admittedly would have lot from having done Trump Organization’s document production and being in a joint defense agreement with most of the relevant people).

One more thing: The degree to which Rudy emphasizes that Trump would not have reached out to Mueller’s office makes me believe we’re shortly going to learn he did reach out to Big Dick Toilet Salesman Matt Whitaker.

President Trump would not have done that.

That’s one of the most logical explanations for the currently contradictory messages coming from seemingly official DOJ sources about what Rod Rosenstein’s office did.

Epic cheap-ass Donald Trump paid $500,000 to figure out whether Michael Cohen had recorded the most damning conversations between them. But it was worth it! He paid it to be able to do what he did Friday, demand a statement disclaiming what is obviously true: that has Trump repeatedly suborned perjury from his advisors to hide what he did with Russia.

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

Trump’s Lawyers Raised Concerns with Mueller’s Office about Testimony They Shouldn’t Know Whether Is Phony or Not

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In the day since I noted Rudy Giuliani taking credit for the Peter Carr statement Friday night, multiple outlets have confirmed that Trump’s lawyers (the reports have not specified which lawyers) contacted Mueller’s office Friday morning  about Buzzfeed’s report that Trump had directed Michael Cohen to lie to Congress. NBC describes that Trump’s team “‘raised concerns’ in a letter to Mueller’s office.” Meanwhile, CNN has a report that seems to back off WaPo’s report that “In the advanced stages of [Mueller’s discussion about the story Friday], the deputy attorney general’s office called to inquire if the special counsel planned any kind of response, and was informed a statement was being prepared.” Instead, CNN describes Rosenstein’s office getting just a “heads up,” not calling to check in if Mueller was releasing a statement. 

The statement was drafted internally within the special counsel’s office, which made the decision to release it, according to two sources with direct knowledge of the situation. The deputy attorney general’s office, which oversees the special counsel, was only given a heads up it was coming Friday evening.

Whatever happened, Friday was the first time Mueller’s office has issued a statement on a specific story and the first time Trump has offered such positive comments about Mueller’s team.

It was a total phony story, and I appreciate the special counsel coming out with a statement last night. I think it was very appropriate that they did so. I very much appreciate that.”

So even if Trump has bitched before (WSJ says they have not; NYT Maggie says they have) — this has been the only time it worked.

The thing is — Trump shouldn’t know one way or another whether Buzzfeed’s was a phony story. They should have zero idea how Michael Cohen testified (though I note, again, that Mueller has a real incentive to be very modest about how they claim Cohen has testified). Trump’s lawyers may know what Trump Organization employees testified through a joint defense agreement. But Trump’s own lawyer said yesterday that it’s possible Trump spoke to Cohen about his testimony to Congress (he’s now trying to walk that back). If Rudy doesn’t know whether Trump told Cohen to “make it happen” or not, as Buzzfeed alleges, then he can’t know whether the story is phony.

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

Rudy Claims Credit for Peter Carr’s Correction of BuzzFeed, Which Had the Goal of Tamping Down Impeachment Talk

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In this post, I suggested that Rod Rosenstein’s call to Mueller’s office to see if they were going to release a statement pushing back against Buzzfeed’s story on Michael Cohen’s testimony might be a violation of SCO regulations protecting against “day-to-day supervision” by DOJ.

In his appearance on Jake Tapper’s show today, Rudy Giuliani (starting at 14:25) appears to take credit for SCO’s statement. After agreeing with Tapper that the NYT had corrected their claim that Paul Manafort had shared polling data with Konstantin Kilimnik with the intent that it in turn get shared with two Ukrainian oligarchs he worked for, he noted that the NYT had not issued the correction on their own. He then said that the Special Counsel’s office had not, either.

Rudy: Originally the NYTimes ran with the story [about Paul Manafort sharing polling data with Konstantin Kilimnik] — again, fake news — that he shared it with a Russian, not true. [note: actually it is true, because Kilimnik himself is a Russian citizen]

Tapper: They corrected that. They corrected that.

Rudy: They did correct that. They didn’t correct that — my friend, they didn’t correct that, they didn’t correct that just completely on their own by the way. The same thing with Special Counsel. That didn’t happen spontaneously.

At the very least, this undermines WaPo’s claim that Mueller already had a correction of Buzzfeed in the works before Rosenstein’s office called.

In the advanced stages of those talks, the deputy attorney general’s office called to inquire if the special counsel planned any kind of response, and was informed a statement was being prepared, the people said.

Worse still, it seems to suggest he or someone from the White House was involved.

The WaPo story suggested that the statement was issued because Democrats were discussing impeachment.

[W]ith Democrats raising the specter of investigation and impeachment, Mueller’s team started discussing a step they had never before taken: publicly disputing reporting on evidence in their ongoing investigation.

I’ve since heard the same.

It is not appropriate one way or another to issue a statement that otherwise would not have gotten made solely to tamp down discussion about impeachment — as opposed to reestablish what Special Counsel claims it can prove with regards to Cohen’s lies. If Trump suborned perjury about his own doings with Russia — and Congress already had abundant evidence that he had done so before Buzzfeed’s story — then that is grounds to discuss impeachment. That is a proper function of Congress. It is not the function of the Deputy Attorney General’s office to suppress perfectly legitimate discussions of impeachment.

But if the White House or Trump’s personal lawyer demanded that DOJ interfere in the day-to-day supervision of Mueller’s office with the specific goal of silencing talk about impeachment, as Rudy seems to suggest, that is a far more egregious intervention. That would mean Rosenstein’s office (either with or without the intervention of Big Dick Toilet Salesman Matt Whitaker) did what they did because Trump demanded it, which led them to take action that is arguably outside their permissible role with Mueller, all for the political purpose of squelching legitimate congressional discussion about impeachment.

The Special Counsel’s office declined to comment for this post.

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

The House Intelligence Committee Can and Should Subpoena the 18-Minute Gap on the Trump Tower Deal

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Over the last few days the following happened:

  • Buzzfeed published a story stating what the evidence already shows: Trump suborned perjury
  • Mueller’s spox Peter Carr issued an unprecedented rebuttal to a specific story
  • WaPo, in a story presenting DOJ’s side of events, revealed that someone from Rod Rosenstein’s office (probably Ed O’Callaghan, who has managed most interactions with Mueller’s office) called to ask them if they were going to issue such a statement

I am not certain whether the call from Rosenstein’s office violated Special Counsel regulations protecting the Special Counsel from day-to-day interference in the office, but it certainly is something Jerry Nadler’s committee should inquire about.

And while I think Mueller’s office can make a very good case they needed to respond to Buzzfeed’s story for prosecutorial reasons, Rosenstein’s involvement seems far more suspect, particularly since he’s the guy who set the new DOJ standard that even warning a journalist off a story, as former FBI General Counsel Jim Baker did, may get you disciplined or referred for prosecution. By all appearances, Peter Carr was playing by Rosenstein’s rules in his interactions with Buzzfeed, so Rosenstein is the last person who should weigh in if he doesn’t like the outcome.

But — in addition to House Judiciary Committee (HJC) asking DOJ about contacts between Rosenstein’s office and Mueller’s, as well as contacts between Big Dick Toilet Salesman Matt Whitaker and Rosenstein and contacts between the White House and either one — Congress has a means of pursuing this question that should not harm Mueller’s investigation: Subpoena the information that Cohen, Felix Sater, the Trump Organization, and the campaign withheld from the House Intelligence Committee so as to sustain Cohen’s false testimony through March 22, 2018.

I’ve put the section of the House Intelligence Report that deals with the Trump Tower deal below, with the claims we now know to be false underlined. In addition to a caveat that the findings in the section are based on the documents turned over to the committee, the section includes the following claims we now know to be false given Cohen’s statement of the offense and/or Buzzfeeed’s extensive report on the deal:

  • The report claims the deal died in January but communications (which may or may not be limited to text messages) between Sater and Cohen show that it continued (at least) through June and Buzzfeed suggests the communications extended into July. Rudy Giuliani today stated publicly it may have gone through November.
  • The report claims Cohen was working with Sater’s company, which may or may not be true. But Buzzfeed makes it clear there should be an October 2015 email between Sater and Cohen — sent weeks before Trump signed the Letter of Intent — showing that VTB, a sanctioned bank, would provide financing. A December 19, 2015 communication (it’s unclear whether email or text) would have showed VTB would host Cohen. On December 31, 2015, Sater sent an image showing another sanctioned bank, GenBank, would instead provide financing. There would also be a letter dated late January from Andrey Ryabinskiy, a Russian mortgage tycoon.
  • The report claims Cohen never received a response from anyone associated with the Russian government. But Cohen received a January 20, 2016 email from Dmitry Peskov’s personal assistant, and his call records would reflect a 20 minute call to the number she provided him to call her on.
  • Sater claimed to HPSCI that his claims about Putin’s involvement was “mere puffery” and that “neither President Putin nor any element of the Russian government was actually directly involved in the project.” Yet on January 21, Sater wrote Cohen, “It’s about [Putin] they called today,” which would show still more response to Cohen from the Russian government. And a May 5 text message from Sater to Cohen conveyed Dmitry Peskov’s invitation to attend the St. Petersburg Forum, at which Cohen could discuss the deal with Peskov and he might meet Putin personally.
  • The report says the deal failed because the due diligence failed and  Trump Organization’s representative (it’s unclear whether this would be Cohen, Sater, or someone else) lost confidence in the licensee. That’s almost certainly not consistent with whatever reason Cohen gave Sater on June 14, three hours after WaPo reported that Russia had hacked the DNC, to say he would not be traveling to St. Petersburg after all. There may well be discussion of the WaPo report in the four texts Sater sent Cohen. There also may be communication reflecting Cohen’s assurances that “We’ll go after Cleveland.”
  • The report says the potential licensing deal was not related to the campaign but Cohen, “asked a senior campaign official about potential business travel to Russia.” It’s unclear whether there’s a paper trail of that or not. But there are communications reflecting Cohen’s consideration of other campaign events — definitely the Convention and probably the WaPo report on the DNC hack. And there should be communications showing it go through November, only to be halted — or rather, moved under Segei Millian and George Papadopoulos — once Trump got elected.

While it’s possible the House Intelligence Committee (HPSCI) received the 2015 communications indicating that Trump contemplated working with sanctioned banks during the time he was running for President (in which case it would be scandalous that the Republicans suppressed that detail, and the one that a former GRU officer was involved), much of the rest of these communications could not have been turned over to HPSCI when they requested documents in 2017. While some of the communications are limited to texts between Sater and Cohen, at least some of this paper trail (including Cohen’s meetings with Trump and Don Jr about it) would either reside at the campaign or Trump Organization (or both).

Remember, when SDNY got a warrant — one naming “many” thus far uncharged people — to raid Michael Cohen a month after subpoenaing Trump Organization, they explained there was a concern that documents would get destroyed.

One of the filings on Cohen (I’m still trying to chase down this reference) suggests Mueller had to get his communications on this matter from someone else. It seems likely Mueller had to get the text messages from Sater’s phone (or perhaps even from forensics on Cohen’s own phone).

Nevertheless, the public record identifies an abundant paper trail that should have been turned over to HPSCI, Senate Intelligence Committee (SSCI), and Senate Judiciary Committee (SJC), but could not have been, given what HPSCI reported last March. Additionally, Don Jr’s testimony to HPSCI is necessarily inconsistent with his SJC, yet still appears to include false claims about the Trump Tower deal (though some got cleaned up between his September testimony to SJC and his December testimony to HPSCI).

While Cohen was initially formally subpoenaed (though possibly only for Steele dossier documents), Trump Organization, Felix Sater, and the campaign were not.

Adam Schiff’s committee can make an important first step to clear up questions about the degree to which Trump only tacitly permitted Cohen, Sater, and his spawn to lie to Congress, or whether — as was the case with the June 9 response — his lawyers worked directly with witnesses to craft a false message to the public and Congress. If the June 9 response is any indication, there should be communications directly between Alan Futerfas or Garten with Cohen as he crafted his false story, which would go a long way to showing that their ultimate client suborned perjury.

Rosenstein’s intervention with Mueller’s office regarding Friday’s statement suggests that he, the Big Dick Toilet Salesman, or their boss, may be trying to tamp down discussions about Trump participating in Cohen’s lies. But because the discovery to HPSCI was so obviously incomplete, that committee has an available significant first step that could answer that question themselves, with little opportunity for DOJ to prevent that (and, given that the documents have already been identified in Buzzfeed’s story already, probably little risk of damaging the Mueller investigation in the way that further Cohen testimony might).

It may not be the kind of showboat witness testimony Schiff seems most interested in right now. But he has the ability to demand all the documents that show what details Cohen, Sater, and the President’s company and campaign knew to withhold to sustain Cohen’s lies. That — and a request for any communications about this matter, both in 2017 and in the wake of last year’s raid on Cohen — would go a long way towards answering a question that only Congress can deal with anyway: the degree to which Donald Trump orchestrated his lawyers’ lies about his ongoing business negotiations with Russia while Russia was helping him get elected.

House Intelligence Report

In approximately September 2015, he received a separate proposal for Trump Tower Moscow from a businessman named [Sater] According to Cohen, the concept of the project was that “[t]he Trump Organization would lend its name and management skills, but It was not going to borrow any money and it would not have any resulting debt for the purchase of the land and the building of the facility.”;~ Cohen worked on this idea with [Sater] and his company, the Bayrock Group, a real estate consultancy that had previously worked with the Trump Organization.

[gratuitous paragraph on what a colorful fellow Sater is]

(U) After signing a letter of intent with a local developer in October 2015,36 Cohen and [Sater] exchanged a number of emails and text messages in late 2015 detailing their attempts to move the project forward. For instance, in December 2015, [Sater] tried to get Cohen and candidate Trump to travel to Russia to work on the project.

(U) Several of [Sater’s] communications with Cohen involved an attempt to broker a meeting or other ties between candidate Trump and President Putin, and purported to convey Russian government interest in the project. Perhaps most notably, [Sater] told Cohen in a November 3, 2015, email, “[b]uddy our boy can become President of the USA and we can engineer it.” 39 [Sater] continued that if “Putin gets on stage with Donald for a ribbon cutting for Trump Moscow, . .. Donald owns the republican nomination.” 10 This assertion apparently arose from [Sater’s] rather grandiose theory that cementing a deal with a hostile U.S. adversary would increase candidate Trump’s foreign policy bona fides.41

(U) Sater testified that his communications with Cohen regarding President Putin were ”mere puffery,” designed to elicit a response from the · Trump Organization to move the project along.42 [Sater] explained that “[u]ntil the bank writes the check, it’s all salesmanship and promotion to try to get many, many, many parties towards the center to try to get the deal done.” 43 Cohen similarly characterized [Sater] as “a salesman” who “uses very colorful language.”44

(U) When the project started proceeding too slowly for the Trump Organization,45 Cohen and [Sater] began to exchange acrimonious text messages. 46 As part of those text messages [Sater] told Cohen that President Putin’s people were backing the deal, including “this is thru Putins [sic] administration, and nothing gets done there without approval from the top,” as well as meetings in Russia with “Ministers” and “Putins [sic] top administration people.”] [Sater] also mentioned Dmitry Peskov (President Putin’s spokesman) would “most likely” be included. 48

(U) Cohen thus attempted to reach out to members of the Russian government in an attempt to make the project proceed, but apparently did not have any direct points of contact. for example, Cohen sent an email to a general press mailbox at the Kremlin in an effort to reach Peskov.49 Cohen’s message notes that he has been working with a local partner to build a Trump Tower in Moscow and that communications have stalled with the local partner.50 The email further seeks contact with Peskov so they may ” discuss the specifics as well as arrang[e] meetings with the appropriate individuals.”51 Based on the documents produced to the Committee, it does not appear Cohen ever received a response from anyone affiliated with the Russian government.

(U) [Sater’s] testimony likewise made clear that neither President Putin nor any element of the Russian government was actually directly involved in the project. For instance, in one exchange, [Sater] testified he was offering the Trump Organization access to one of his acquaintances. This acquaintance was an acquaintance of someone else who is “partners on a real estate development with a friend of Putin’s.” 52

[Sater] testified that he was unaware of “any direct meetings with any [Russian] government officials” in connection with the Trump Tower Moscow project.53 In addition, neither candidate Trump nor Cohen traveled to Russia in support of the deal.54

[U] It appears the Trump Tower Moscow project failed in January 2016.57 Trump Jr. testified that, as of early June 2016, he believed the Trump Tower Moscow project was dormant.53 The project failed because “[t]he due diligence did not come through” and the Trump Organization’s representative “lost confidence in the licensee, and [he] abandoned the project.”59 In fact, the Trump Organization did not have a confirmed site, so the deal never reached the point where the company was discussing financing arrangements for the project.60 The Committee determined that the Trump Tower Moscow project did not progress beyond an early developmental phase, and that this potential licensing deal was not related to the Trump campaign.61

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

DAG Rod Rosenstein Involves Himself in Mueller’s Press Response to Buzzfeed Story

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WaPo has a story that provides the official DOJ version of what happened with the BuzzFeed story the other day. It is certainly one explanation for what has happened since Thursday — one that appears to rely on the same number of anonymous sources (two) as the BuzzFeed story it is reporting on (leaving aside a Trump Organization source for both and off the record sources).

And while I’m confident that parts of my take on what happened are correct, I’ll confess the WaPo story makes it clear I was overly optimistic in dismissing the possibility that Big Dick Toilet Salesman Matt Whitaker or his now-subordinate Rod Rosenstein may have weighed in. Indeed, the story reveals that Rosenstein’s office did call to check whether Mueller was going to release a statement debunking the BuzzFeed story.

In the view of the special counsel’s office, that was wrong, two people familiar with the matter said, speaking on the condition of anonymity to discuss internal deliberations. And with Democrats raising the specter of investigation and impeachment, Mueller’s team started discussing a step they had never before taken: publicly disputing reporting on evidence in their ongoing investigation.

[snip]

In the advanced stages of those talks, the deputy attorney general’s office called to inquire if the special counsel planned any kind of response, and was informed a statement was being prepared, the people said.

That seems to be a violation of Special Counsel regulations, which say that Mueller’s office shall not be subject to day-to-day supervision of any official, whether DAG or Acting Attorney General.

The Special Counsel shall not be subject to the day-to-day supervision of any official of the Department. However, the Attorney General may request that the Special Counsel provide an explanation for any investigative or prosecutorial step, and may after review conclude that the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued.

Maybe Mueller and Peter Carr don’t care. But it should set off all sorts of alarm bells that as soon as a media report states what has long been clear — that Trump suborned perjury — Mueller’s office is getting calls about how to respond to the press, which last I checked was not an “investigative or prosecutorial step” at all. All the more so given that Carr appears to have bent over backward not to reveal any investigative details to the press, adhering rigorously to any DOJ guidelines on that front.

Whichever side is correct (again, I believe WaPo has just one part of this story), that Rosenstein (or Whitaker) got involved seems to be far more important.

Peter Carr Speaks

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Yesterday, Mueller’s spox Peter Carr issued a statement vaguely denying Thursday’s Buzzfeed story claiming that Trump ordered Michael Cohen to lie.

BuzzFeed’s description of specific statements to the special counsel’s office, and characterization of documents and testimony obtained by this office, regarding Michael Cohen’s congressional testimony are not accurate.

Clearly, there are parts of the story that are correct, in that they provide specific details that match the vague ones Mueller himself has released.

The new details in the story include a price tag for the Trump Tower detail: Trump, “hoped could bring his company profits in excess of $300 million” (Mueller’s sentencing memorandum stated that the deal might be worth “hundreds of millions of dollars from Russian sources in licensing fees and other revenues”).  It quantifies how many times Trump and Cohen spoke about the deal: Trump, “had at least 10 face-to-face meetings with Cohen about the deal during the campaign.” It also confirms that Don Jr and Ivanka were the “family members” described in Cohen’s allocution who were apprised of the details.

That, by itself, suggests that Buzzfeed’s sources have direct access to some of this evidence.

But one thing Mueller is almost certainly responding to is a claim that puts blame for the lies Cohen told to Congress on Trump. Michael Cohen is under oath saying not that Trump ordered him to lie, but that he lied to match the messaging that Trump was using.

By 2017 I was no longer employed in this capacity, but continued to serve on several matters as an attorney to the former CEO of the Trump Organization and now President of the United States, who is referred to as Individual 1 in the information.

As I had in the years before the election, I continued in 2017 to follow the day-to-day political messaging that both Individual 1 and his staff and advisers repeatedly broadcast, and I stayed in close contact with these advisers to Individual 1. As such, I was aware of Individual 1’s repeated disavowals of commercial and political ties between himself and Russia, his repeated statements that investigations of such ties were politically motivated and without evidence, and that any contact with Russian nationals by Individual 1’s campaign or the Trump Organization had all terminated before the Iowa Caucus, which was on February 1 of 2016.

In 2017, I was scheduled to appear before the Senate Select Committee on Intelligence as well as the House Permanent Select Committee on Intelligence concerning matters under their investigation, including principally whether Russia was involved in or interfered in the 2016 campaign and election.

In connection with my appearances, I submitted a written statement to Congress, including, amongst other things, a description of a proposed real estate project in Moscow that I had worked on while I was employed by the Trump Organization.

That description was false — I knew at the time — in that I had asserted that all efforts concerning the project had ceased in January of 2016 when, in fact, they had continued through June of 2016;

That I had very limited discussions with Individual 1 and others in the company concerning the project, when in fact I had more extensive communications; and,

Lastly, that I had never agreed to travel to Russia in connection with the project and had never asked Individual 1 to travel, when in fact I took steps to and had discussions with Individual 1 about travel to Russia.

And I would like to note that I did not in fact travel there, nor have I ever been to Russia.

I made these misstatements to be consistent with Individual 1’s political messaging and out of loyalty to Individual 1. [my emphasis]

That’s a point I made yesterday: Buzzfeed’s story materially differed from the sworn testimony in the case, and even if their sources were right that, in fact, Trump sanctioned Cohen’s lie, they should have explained why Mueller says differently.

Notably, Cohen’s allocution says that he “stayed in close contact with these advisers to Individual 1,” not that he was talking to Trump directly. It’d be hard (though by no means impossible) to have been ordered directly by Trump to lie if he was no longer in day-to-day contact with Trump.

Carr is also seemingly objecting to this characterization:

The special counsel’s office learned about Trump’s directive for Cohen to lie to Congress through interviews with multiple witnesses from the Trump Organization and internal company emails, text messages, and a cache of other documents.

That’s unsurprising. He’s denying that Mueller has documents and Trump Organization (which may be different from White House) witnesses that would make Cohen’s sworn allocution false. In any case, Trump doesn’t use email, so there’s no email where Trump ordered Cohen to lie.

My very strong suspicion is that this happened — and Mueller pushed back — for two reasons.

First, as I noted yesterday, Buzzfeed’s sources appear to have access to primary evidence, but their focal awareness of what Cohen said to Mueller appears to be limited to precisely what Cohen’s sentencing memo had. That is, Buzzfeed didn’t receive any of the details that would be more useful for understanding how the Trump Tower deal relates to any larger conspiracy between Trump and Russia, they received the details that made it into the sentencing memo.

Cohen’s sentencing went through SDNY, where his other guilty plea was, which means SDNY (both the US Attorney’s office and the FBI Field Office) would have visibility on that process. So it’s likely that Buzzfeed’s sources are there, which would be consistent with the two descriptions Buzzfeed provided for their two law enforcement sources.

two federal law enforcement officials involved in an investigation of the matter

law enforcement sources familiar with his testimony to the special counsel

If that’s right, it explains a big part of what happened. As I noted yesterday, there’s a stark difference in the way that Cohen allocuted his hush payments for Trump and the way he allocuted his lies for Trump. Regarding the hush payments, he says he acted at the direction of Trump.

With respect to the conduct charged in these Counts, Michael kept his client contemporaneously informed and acted on his client’s instructions. This is not an excuse, and Michael accepts that he acted wrongfully. Nevertheless, we respectfully request that the Court consider that as personal counsel to Client-1, Michael felt obligated to assist Client-1, on Client-1’s instruction, to attempt to prevent Woman-1 and Woman-2 from disseminating narratives that would adversely affect the Campaign and cause personal embarrassment to Client-1 and his family. [my emphasis]

Regarding the lies to Congress, he says he was just trying to advance Trump’s political messaging.

Michael’s false statements to Congress likewise sprung regrettably from Michael’s effort, as a loyal ally and then-champion of Client-1, to support and advance Client-1’s political messaging. [my emphasis]

Both these statements would have been written in consultation with the prosecutors running the case. So SDNY used a fairly aggressive frame to implicate Trump in the hush payments, whereas Mueller was much more circumspect about Trump’s role.

The difference may, in part, be that when Cohen made those hush payments he was still working directly for Trump, and so was in a position to get a direct order rather than speaking (as he said he was) with Trump’s advisers. But even if both cases basically show Trump making his intentions known and Cohen executing those intentions, there’s a good reason for the asymmetry on the description.

Cohen is not a cooperating witness for SDNY. While they continue to investigate Trump and Trump Organization for campaign finance violations, they’re not relying on Cohen to make that case. They’re relying on immunized testimony from Allen  Weisselberg and David Pecker. So SDNY (whether people in the office or FBI Agents assigned to the case) has no incentive to be exacting in their description of the evidence on the Trump Tower deal. They can go big, just like they did in the hush payment allocution.

Cohen is, however, a cooperating witness for Mueller. If and when they make a case that the Trump Tower deal was part of a larger election year conspiracy, they will likely need to be able to call Cohen to the stand and describe the truth of how he kept Trump and Don Jr in the loop on the deal, most notably to explain how it factored into Don Jr’s mindset when he accepted a meeting offering dirt in exchange for sanctions relief. They need Cohen to explain that Don Jr would have understood there was $300 million riding on that meeting.

Everything about how Mueller’s team has handled Cohen attests to that possibility. They didn’t need to charge him with false statements and the charge did not add any prison time to his sentence. They didn’t need to make him publicly explain, under oath, why he lied. But by doing that, they began to rehabilitate Cohen publicly. In spite of Cohen’s significant cooperation, they didn’t offer him a 5K letter at sentencing, meaning he’s still on the hook for cooperation; unlike Mike Flynn, for example, he’s not getting a sentence reduction before he takes the stand. But because of the way they handled it, they can mandate his silence about what he told Mueller, demand that Congress limit the scope of his testimony next month, and dictate any response Cohen made yesterday to the story.

The possibility they’ll put Cohen on the stand is likely one reason why Cohen’s allocution about the Trump Tower lies is so much more modest than the SDNY allocution: Mueller will need to be able to corroborate, with other documentary evidence, everything that Cohen will ultimately testify to. And so while they may have reason to believe Trump approved of the lies being told on his behalf — maybe even ordered people at Trump Organization or his spawn to do what they needed to sustain the lies (which might look to SDNY law enforcement as clear evidence that he was directing the lies) — Mueller is not going to set the bar for proof of Cohen’s statement anywhere further than they need for a possible larger conspiracy case. And they don’t need to prove that Trump had a role in Cohen’s lies. Rather, they need to be able to prove that Cohen kept Trump and Don Jr in the loop on the deal itself.

If all this is right, it — and not the magnitude of any errors in the Buzzfeed story (because there have been a number of other big stories where the errors were clearly just as significant) — explains why Carr issued a statement yesterday. First, to make it very clear that in Mueller’s mind, Cohen’s allocution was honest, that he wasn’t (for example) protecting Trump in taking responsibility for the initial lie. But also, to make sure the bar they very deliberately set for Cohen’s testimony remained precisely where they put it in his plea allocution. The last thing Mueller needs is a juror who thinks that unless they show an email with Trump ordering Cohen to lie, then Cohen’s testimony is false. And by making this unprecedented statement, Mueller will make it harder for any defense attorney to raise the bar on what Mueller needs to prove in this case.

There’s probably another reason why Carr made this statement. I don’t doubt that Mueller hates Jason Leopold and Anthony Cormier for the way they got the financial transfer part of this story when no one else did, and more of the Moscow Tower deal story than others (which seems to be forgotten in the squawking about Buzzfeed’s loneliness on this latest story).

But I suspect Carr took this step, even more, as a message to SDNY and any other Agents working tangents of this case. Because of the way Mueller is spinning off parts of this case, he has less control over some aspects of it, like Cohen’s plea. And in this specific case (again, presuming I’m right about the SDNY sourcing), Buzzfeed’s sources just jeopardized Mueller’s hard-earned reputation, built over 20 months, for not leaking. By emphasizing in his statement what happened in “the special counsel’s office,” “testimony obtained by this office,” Carr strongly suggests that the people who served as sources had nothing to do with the office.

A couple more points. A lot of people are complaining that Carr didn’t more aggressively warn Buzzfeed off the story (though he did provide what sounds like Cohen’s allocution, which — if it had been reviewed by one of Buzzfeed’s superb legal reporters — probably would have led to the cautions I raised yesterday). I get why that would be nice. But I think people really misunderstand the degree to which Mueller knows that every single action they take will eventually be subjected to scrutiny courtesy of a Judicial Watch FOIA. And any hint at all that Carr provided any inkling about the case to journalists will be blown up by Trump and his lawyers.

Finally, the actions Carr took yesterday (and Mueller’s big-footing on Cohen’s testimony before the Oversight Committee next month) only make sense if Cohen might have to play a role in a possible trial, and not a report submitted confidentially to Attorney General William Barr. That’s what more likely explains Carr’s response than anything else: the discrepancy between what Buzzfeed reported and what Cohen allocuted posed a risk to a possible jury trial. And that may explain another reason why Mueller is a lot more modest about Trump’s role in Cohen’s lies than SDNY is.

Trump’s not going to be indicted by Mueller — at least not before he leaves office via election defeat or impeachment. So Mueller’s focus needs to be on the crimes of those he can charge, like Don Jr. That doesn’t rule out that the evidence he’s looking at shows that Trump oversaw a series of coordinated false statements. He did! With Mike Flynn’s lies, Don McGahn’s clean up of Flynn and Jim Comey’s firings, the response to the June 9 meeting, and yes, this Trump Tower deal, nothing explains the coordinated story-telling of multiple Trump flunkies other than Trump’s approval of those lies. It is, frankly, journalistic malpractice that the press hasn’t noted that, especially on the June 9 meeting, the evidence that Trump lied and ordered others to has already been made public. Trump’s tacit (and explicit, with the June 9 statement) approval of serial false statements, to Congress, to the FBI Director, to FBI Agents, and to Mueller, is an impeachable offense. Multiple outlets have gotten solid proof of that, they just haven’t stated the obvious like Buzzfeed did, perhaps in part because they’re relying on White House sources for their reporting.

But Mueller won’t need to allege that for his case in chief, at least not on the issue of the Trump Tower deal. Because the events that matter to Mueller’s case in chief — the events to which Cohen might have to serve as a witness — happened in 2016, not 2017 or 2018. And the guilt that Mueller would need to prove beyond a reasonable doubt if he does indict this conspiracy is not Trump’s guilt — except as an unindicted co-conspirator. It is Don Jr’s guilt.

So outlets that are suggesting that Mueller’s pushback backs off any evidence that Trump committed a crime make no more sense than the original Buzzfeed report (and ignore the actual evidence of how Cohen’s lies evolved, an evolution in which these outlets were active participants). The only thing that explains Carr issuing such an unprecedented statement is if Cohen’s ability to testify on the stand must be preserved.

Robert Mueller has the unenviable task of needing to sustain as much credibility for a bunch of serial liars as possible, starting with Michael Cohen. Buzzfeed’s story — whether generally true or erroneous on details about Trump Organization witnesses or totally wrong — threatened that effort.

And that’s why, I strongly suspect, Peter Carr finally publicly spoke.

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

William Barr’s Asymmetric Confusion about Shitty Mueller Reporting

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It turns out that once and future Attorney General William Barr has been better able to wade past shitty reporting on the outcome of the Mueller investigation than he has shitty reporting on the public evidence about what Mueller has found.

In two of my posts on Barr’s memo about the Mueller investigation (one, two), I note that Barr’s project consists of writing up 19 pages on a subject that start with an admission he knows nothing about the subject.

Barr also adopts the logically and ethically problematic stance of assuming, in a memo that states, “I realize I am in the dark about many facts” in the second sentence, that he knows what Mueller is up to, repeating over and over claims about what theory of obstruction he knows Mueller is pursuing.

Both in his prepared statement yesterday and in his testimony, he excused his memo by blaming his badly mistaken understanding of what Mueller was doing on media reports.

[M]y memo was narrow in scope, explaining my thinking on a specific obstruction-of-justice theory under a single statute that I thought, based on media reports, the Special Counsel might be considering.

He’s not wrong! I have long bitched about shitty Mueller reporting that suggested Mueller was primarily investigating whether Trump obstructed justice. Such problems persist even in recent reports that the counterintelligence focus on Trump was any different from the obstruction inquiry.

The investigation the F.B.I. opened into Mr. Trump also had a criminal aspect, which has long been publicly known: whether his firing of Mr. Comey constituted obstruction of justice.

That has, in turn, led to claims that the counterintelligence concerns stemmed exclusively from the firing of Jim Comey and not a slew of other behaviors going back some time before that.

So Barr might be excused for totally misunderstanding what the public evidence from the Mueller investigation actually showed (though not his willingness to comment without first learning what the evidence actually was), because most mainstream media reports badly misreported the public record.

Curiously, Barr didn’t get snookered by the other topic that is consistently badly reported (and badly reportedly, most likely, for the same reason — because Trump’s team has seeded that shitty reporting): whether and how Mueller will issue a report. A great deal of yesterday’s testimony pertained to whether Barr will release “the Mueller report.” Barr promised, in his his prepared testimony and later, to release as much of the results of the investigation as he could.

I also believe it is very important that the public and Congress be informed of the results of the Special Counsel’s work. For that reason, my goal will be to provide as much transparency as I can consistent with the law.

But both Democratic and Republican Senators were concerned by that (which is itself a testament to wildly divergent understandings of what Mueller is looking at), with John Kennedy going so far as suggesting Barr should release all the grand jury materials and Dianne Feinstein conditioning her vote on whether Barr commits to make Mueller’s report public.

In fact, Barr did two things. First, he said he’d speak to Rod Rosenstein and Mueller to understand what their current plans for a report were. But he also repeatedly cited the regulations to argue that Mueller’s report is — by regulation — confidential.

For shits and giggles and because I knew what response I’d get, I asked Mueller’s spokesperson Peter Carr what form their report will take today. I wasn’t disappointed. His response was to attach their governing regulations and call attention to the language that describes the mandated Special Counsel Report.

Thanks for reaching out. All I can point you to is the regulations that govern our office, which are attached. Section 600.8 states the following:

(c) Closing documentation. At the conclusion of the Special Counsel’s work, he or she shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel. [my emphasis]

That is, if you ask Mueller — or the closest thing we get, his spokesperson — he will answer precisely what Barr did: that his mandated report is simply a confidential prosecutions and declinations report.

That shouldn’t be surprising, either. Mueller continues to use pseudonyms for identities of people in his filings — like Donald Trump himself — that are readily identifiable, based on the principle that DOJ doesn’t refer to uncharged individuals. It’s a principle that explains part of why Mueller submitted yesterday’s Manafort filing in heavily redacted form.

[T]he redactions relate to ongoing law enforcement investigations or uncharged individuals, and public disclosure of certain information in the submission could unduly risk harming those efforts.

In other words, virtually all of the coverage of the “Mueller report” has promised it will be something other than we had reason to believe — short of an indictment request overridden by the Attorney General — that it would be.

By the same token, there’s abundant reason to believe that that’s not what the “Mueller report” will be.

Yesterday, the same day questions about a Mueller report were central to Barr’s confirmation hearing, the WSJ reported this entirely unsurprising detail about Michael Cohen’s testimony before the Oversight Committee on February 7.

Mr. Cohen, who is scheduled to speak in an open hearing on Capitol Hill for the first time Feb. 7, won’t be able to talk about topics that he has discussed with special counsel Robert Mueller, according to a person close to Mr. Cohen.

The indication that Cohen’s testimony will be sharply limited (presumably based on the intercession of Mueller’s congressional liaison, Stephen Kelly, about whom we’re likely to hear more in coming days) suggests several things: First, Mueller doesn’t expect to be done with Michael Cohen by February 7. That, in turn, suggests that all the claims — which I’ve heard too — that Mueller will soon issue a “report” likely misunderstand what form that report will take, because a one-time report covering the importance of Trump Tower deals to entice Trump’s family would present little reason to silence Cohen next month, particularly because he’d be free to talk about it anyway. But if something more public — such as an indictment, even if it’s just of Trump Organization — or if a non-public report that can be conveyed to the House Judiciary Committee is in the works, then you’d want to silence Cohen. Indeed, contrary to a lot of other bad reporting, Cohen remains on the hook in his cooperation with Mueller; he won’t get a reduction in sentence until they decide he has done enough to get a year lopped off his existing sentence.

That many reporters are being told by reliable sources that Mueller will soon unveil a “report” and that Mueller still officially maintains that their required report won’t be public suggests Mueller is moving towards yet another speaking indictment, which is how he has always reported. That’s consistent with the limits on Cohen’s report, it’s consistent with reports that Mueller is presenting evidence against Jerome Corsi to a grand jury, and it’s consistent with what we saw in yesterday’s Manafort filing (which presented evidence of Trump campaign crimes dating to 2016).

I have my concerns about Barr, especially his willingness to make policy decisions informed only by right wing propaganda (on which point he was worse on his testimony about immigration and criminal justice issues than on Mueller). Those concerns extend to what will happen if Barr gets to decide what parts of a Mueller report gets made public; it’s clear that Barr currently believes that Mueller will issue a report finding that Trump did nothing criminal. Those concerns are heightened by the fact that on virtually every other topic, Barr had not done enough homework to answer basic questions (the most remarkable instance of which was his confession that he hasn’t read the Supreme Court’s decision in Carpenter), but he was prepared to state, correctly, that Mueller’s report will be confidential, addressed solely to him.

I have other concerns. Once CSPAN fixes their transcript, I hope to show how badly hypocritical Barr is about both Matt Whitaker and Donald Trump’s sleazy influence peddling. His comments about recusal from the Mueller investigation were troubling. And he seems to believe — as he explained to Patrick Leahy near the end of the hearing — that in November 2017 there remained, after DOJ had investigated both and after Mueller had rolled out the George Papadopoulos plea deal showing him trying to hide that he was discussing emails and meetings with Putin in the days after he became a foreign policy advisor to Trump, more evidence to support an investigation of the Uranium One and Clinton Foundation allegations than into “collusion.”

But Barr also strongly suggested he would not step in the way of any Mueller indictments. And Senators did get him on the record agreeing that if Trump suborned perjury it would be criminal. And he respects Mueller, so if Mueller shows him evidence that Trump has been gravely compromised, then he should take that evidence seriously.

Barr appears to be an arrogant man who believes right wing propaganda is sufficient evidence to base policy decisions on.

But he also has a better idea of what the regulations say to expect from a Mueller report — as distinct from Mueller indictments — than the Senators questioning him did.

Update: This useful JustSecurity piece lays out the regulations and the Attorney General’s discretion.

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