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The Long List of Reasons Why Potential Intimidation of Proud Boy Jurors Must Be Taken Seriously

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Enrique Tarrio has already been investigated by a grand jury in Prettyman Courthouse for any role he had in threats to undermine a criminal prosecution.

That’s important background to Brandi’s report, at the end of her update on the Proud Boys trial, of how much of last week the trial was halted for a series of sealed hearings.

Apart from routine objections launched by the defense to even the most mundane of issues and separate from the unending series of motions for mistrial, last week featured a new and unwelcome variable: the sealed hearing.

A sealed hearing, or a hearing closed to the public and press, is typically held when sensitive or classified matters are being discussed by the parties. Trial days were stopped and started three times last week for sealed hearings that stretched for more than an hour. A press coalition moved to unseal proceedings on at least one of those days but was promptly denied by Judge Kelly for reasons he failed to describe on the record.

Though the exact reason was not disclosed by the court (nor would one expect it to be at this point), CNN reported that multiple sources said the sealed hearing was prompted after a juror raised concerns that she was being followed. Another juror has said they were “accosted” but no further details were available.

As CNN reported, a juror had become worried that someone was following her.

A juror told the court an individual came up to her outside of a Washington, DC, metro station and asked if she was a juror, multiple sources told CNN. The juror told court staff she had seen the same individual on several occasions and thought they might be following her.

Some jurors appear to be split on their views of the incidents, people familiar said. One juror told the judge he thought it was possible the interactions were random and it might have been someone experiencing homelessness in the area.

[snip]

When other jurors found out about the incident, they also began to look out for the individual and had taken at least one picture of the person, according to someone familiar with the matter.

Other jurors also told the court in sealed hearings this week that they had been “accosted,” one source told CNN, though it’s unclear to what extent.

But that report and some of the discussions I’ve seen elsewhere didn’t describe the list of reasons why such threats should be taken seriously.

First, there’s the fact that defendant Enrique Tarrio has already been investigated in this courthouse for his potential role in a threat against a judge. In 2019, Amy Berman Jackson put Roger Stone under oath and asked how he came to post an Instagram post of her with crosshairs on it. He blamed the “volunteers” who had made the meme — one of whom, he named, was Tarrio.

Amy Berman Jackson. How was the image conveyed to you by the person who selected it?

Stone. It was emailed to me or text-messaged to me. I’m not certain.

Q. Who sent the email?

A. I would have to go back and look. I don’t recognize. I don’t know. Somebody else uses my —

THE COURT: How big is your staff, Mr. Stone?

THE DEFENDANT: I don’t have a staff, Your Honor. I have a few volunteers. I also — others use my phone, so I’m not the only one texting, because it is my account and, therefore, it’s registered to me. So I’m uncertain how I got the image. I think it is conceivable that it was selected on my phone. I believe that is the case, but I’m uncertain.

THE COURT: So individuals, whom you cannot identify, provide you with material to be posted on your personal Instagram account and you post it, even if you don’t know who it came from?

THE DEFENDANT: Everybody who works for me is a volunteer. My phone is used by numerous people because it can only be posted to the person to whom it is registered.

[snip]

[AUSA] Jonathan Kravis. What are the names of the five or six volunteers that you’re referring to?

Stone. I would — Jacob Engles, Enrique Tarrio. I would have to go back and look

As CNN itself later reported, those whom Stone named were subpoenaed to testify about whether Stone had paid them to make threatening memes targeting his judge.

Tarrio, the leader of the Proud Boys, had been helping him ​with his social media, Stone said under oath, as had the Proud Boys’ Florida chapter founder Tyler Ziolkowski, who went by Tyler Whyte at the time; Jacob Engels, a Proud Boys associate who is close to Stone and identifies himself as a journalist in Florida; and another Florida man named Rey Perez, whose name is spelled Raymond Peres in the court transcript​.

A few days later, federal authorities tracked down the men and gave them subpoenas to testify to a grand jury, according to Ziolkowski, who was one of the witnesses.

Ziolkowski and the others flew to DC in the weeks afterwards to testify.

“They asked me about if I had anything to do about posting that. They were asking me if Stone has ever paid me, what he’s ever paid me for,” Ziolkowski told CNN this week. When he first received the subpoena, the authorities wouldn’t tell Ziolkowski what was being investigated, but a prosecutor later told him “they were investigating the picture and if he had paid anybody,” Ziolkowski said. He says he told the grand jury Stone never paid him, and that he hadn’t posted the photo.

So four years ago, in this very courthouse, Tarrio or his associates were questioned about the circumstances of any participation they had in threatening a judge.

That wasn’t the only role the Proud Boys had in Stone’s witness tampering in that case. The first contact that Randy Credico had with FBI agents investigating 2016 was not the highly publicized grand jury testimony to which he brought his comfort dog Bianca. It was a Duty to Warn contact earlier that summer after the FBI had identified credible threats against him. Those credible threats came from the gangs, including the Proud Boys, that Stone hung out with.

In entirely unrelated news, Credico posted pictures showing him in Moscow last week.

It didn’t end with Stone’s guilty verdict, either. After the verdict, Stone associates got leaked copies of the jury questionnaires. Mike Cernovich started hunting down details on the jurors to retroactively cast doubt on the judgment, and Trump joined in the effort to create a mob. In the wake of those efforts, the jurors expressed fear and some regret at having served.

ALL 12 OF the jurors in the Roger Stone case have expressed fear in court filings on Wednesday. They worry they will continue to be harassed and they fear for the safety of themselves and their families if their identities are revealed.

According to The National Law Journal, jurors cited tweets from President Trump and remarks from conspiracy theorist Alex Jones as the reason “the threats to the jurors’ safety and privacy persist” after the trial ended in November.

One juror wrote, “I try to stay away from danger, but now it seems like the danger is coming to me.”

The jurors are looking to thwart the legal efforts of right-wing conspiracy theorist Mike Cernovich, who is attempting to make public the pretrial questionnaires the jurors filled out. Those questionnaires include jurors’ private information and employment history. The supposed aim of the petition to release the questionnaires is to vet them for bias in hopes of getting a new trial for Stone.

Another juror wrote, “Given the current climate of polarization and harassment, I do not want to draw any attention to myself, my family, or my employer in any way, shape, or form. It is intimidating when the president of the United States attacks the foreperson of a jury by name.”

“I am frightened that someone could harm my family simply because I was summoned and then chosen to serve on the jury,” another juror wrote.

The efforts to intimidate have continued to this case. During a period when Zach Rehl was reportedly considering a plea, Tarrio sent messages to other Proud Boys about remaining loyal.

“The bigger problem with that is the guys that are in prison right now are holding on to hope that everybody is f—ing staying put because they didn’t do anything wrong,” Tarrio said. “The moment that they think one of the guys flipped, it throws everything off and it makes everybody turn on each other, and that’s what we are trying to f—ing avoid.”

Asked about the audio message, Tarrio told Reuters he was simply trying to stop members from speculating that anyone had decided to help prosecutors who are examining the deadly insurrection. “What I was trying to avoid is them turning against each other because of media stories,” he said.

Trial testimony showed that witnesses for the defense — in this case Fernando Alonzo — made threatening comments about Eddie Block for posting the video of the Proud Boys he shot on January 6. [Warning: he used an ableist slur against Block, who relies on a mobility scooter.]

Witnesses for other January 6 defendant have been harassed, as when one January 6 participant confronted Sergeant Aquilino Gonell during the trial of Kyle Fitzsimons on assault charges.

[January 6 participant Tommy] Tatum also tried to confront another officer, this one with the Capitol Police, in a courthouse elevator on Wednesday. He recorded and posted clips of both exchanges with the officers and identified himself outside the courthouse.

U.S. Capitol Police Sgt. Aquilino Gonell, who is also testifying in the trial, said that Tatum told him that he should be ashamed of himself in an exchange near the bathroom inside the courthouse on Wednesday. Shortly after, Tatum got into an expletive-laden confrontation with David Laufman, an attorney for Gonell, after he tried to get into an elevator with Gonell, Laufman and an NBC News reporter.

NBC News separately heard Tatum make negative comments inside the courthouse about how he believed Gonell was acting. Outside the courthouse, Tatum recorded himself accusing Gonell of committing perjury.

The confrontations with Gonell came before the conclusion of his testimony in the case against Fitzsimons, who is accused of assaulting Gonell inside the tunnel. Gonell’s cross-examination by Fitzsimons’ federal public defender will continue on Thursday morning.

“For Sgt. Gonell to be accosted like that, within the courthouse and while he remains a live witness at trial, was outrageous and amounts to witness intimidation that promptly should be addressed by the court as well as the FBI and the Department of Justice,” Laufman, who is representing Gonell pro bono, told NBC News on Wednesday night.

Finally, there are other key players in January 6 — most notably former Green Beret, Ivan Raiklin, who played a key role in Operation Pence Card, the effort to pressure Pence to overturn the election — who lurk around all events associated with January 6. Fellow Proud Boy Gabriel Garcia, in a recent bid to avoid pre-trial release sanctions for going to CPAC after he told Judge Amy Berman Jackson he was coming to DC to observe — among other things — the Proud Boys trial, claimed that he hung out with Raiklin at CPAC to formulate his defense.

While at CPAC, Mr. Garcia was working on his defense to these charges. Indeed, he asked Congressman M. Gaetz, who is from Mr. Garcia’s home state, how and when could his defense team access the 40,000 hours of unreleased video Capitol Police have. Also, he and his counsel met, and conferred extensively with, attorney Ivan Raiklin, whom they may retain for assistance and trial preparation. Mr. Raiklin had spoken to Mr. Garcia on March 2 at CPAC, and he told Mr. Garcia to return the next day with his counsel to discuss at length defense strategies, which they did.

Former Army Captain Garcia is one of the Proud Boys who, in exhibits submitted at trial (here, Gabriel PB), was issuing the most chilling threats in advance of January 6.

None of this makes things easier for Tim Kelly, as he tries to sustain this jury long enough to get through deliberations. It’s not yet clear whether the jurors, watching testimony about the extent to which Proud Boys using intimidation to protect their organization, are seeing shadows, or whether there’s a real attempt to intimidate jurors before they start deliberating.

But given the history of individuals directly associated with the defendants, the threat is not an idle one.

“The Whole Idea Was to Intimidate Congress:” Bill Barr Continues to Minimize Witness Tampering

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In a supine interview to help Bill Barr rehabilitate his reputation, Lester Holt asked the former Attorney General about intervening to lessen Roger Stone’s sentence. According to the summary thus far posted, Barr claims it was made to look bad, but really he just thought it was right to halve the sentencing recommendation for the guy hiding the President’s knowledge of Russian interference during the 2016 election.

As for his decision to soften a prison sentence for longtime Trump adviser Roger Stone that Trump had repeatedly blasted as unfair, Barr said: “I knew it would be made to look bad. At the end of the day, all you can do is what you think is right.”

Barr’s intervention was an ominous precursor to the January 6 riot. In slashing Stone’s sentencing recommendation, Barr affirmatively said that threats by Roger Stone and the Proud Boys on judge Amy Berman Jackson were just a technicality unworthy of a sentencing enhancement. He similarly suggested that the threat of militia violence against Randy Credico that, in summer 2018, was serious enough that the FBI gave him a warning, did not merit a full 8-point enhancement for threats of violence.

Less than a year before two Stone-connected militias led an attack on Congress, the Attorney General let it be known he didn’t find those threats to be all that serious.

That’s likely one factor that led the FBI to treat the Proud Boys as intelligence partners against Antifa rather than a dangerous gang to be infiltrated.

And Barr continues that approach to militia-assisted witness tampering. Holt asked Barr whether Trump was responsible for the mob led by Stone’s militia buddies at the Capitol. Barr responded by describing, effectively, witness tampering.

Do you think that President Trump was responsible for what happened here, ultimately?

I do think he was responsible in the broad sense of that word in that, it appears that part of the plan was to send this group up to the Hill. I think the whole idea was to intimidate Congress. And I think that that was wrong.

“Part of the plan,” the former top law enforcement officer in the US said, “was to send this group up to the Hill … to intimidate Congress.”

In describing January 6 that way, Barr better understands how the insurrection worked than so many TV lawyers. He described it as an attempt to corruptly convince Congress to do something illegal and, in asserting that sending the mob was part of the plan, describes it as pre-mediated obstruction. This is, by all appearances, the crime for which that DOJ is investigating the former President.

But then, having described the same crime, witness tampering and obstruction, achieved in partnership with the same militias, the Oath Keepers and Proud Boys, as Barr minimized with Stone, Barr then suggests Trump hasn’t committed the crime of incitement.

But, he added, he hasn’t seen evidence that Trump committed an actual crime. “I haven’t seen anything to say he was legally responsible for it in terms of incitement,” Barr said.

And Holt let him.

Barr is going to keep saying that mob violence by the Proud Boys is no big thing until someone like Lester Holt calls him out for coddling crime.

DOJ Treated Jerome Corsi as News Media but Not Roger Stone or Randy Credico (or Julian Assange)

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Yesterday, DOJ released both an updated list of times when its media guidelines came into play (here are the 2016, 2017, and 2018 reports), as well as a summary of DOJ’s attempts to get records related to CNN, NYT, and WaPo reporting.

The former has raised some questions about how Mueller’s investigation applied these rules (as a reminder, my interview with the FBI was not with Mueller, though based on a month-long approval process I know to have occurred, I believe there is an entry in the 2017 report that pertains to me).

They’re easier to understand if you work through the second one, for legal process in 2019, first.

In the prosecution of an individual charged with obstructing the investigation into Russian interference in the 2016 presidential election, a United States Attorney authorized the issuance of a subpoena to a member of the news media for testimony. The member of the news media expressly agreed to testify pursuant to the subpoena. Because the member of the news media expressly agreed to testify, Attorney General authorization was not required. See 28 C.F.R. § 50.10(c)(3)(i)(A). The prosecution team did not call the member of the news media at trial.

There was just one trial of anyone for obstructing the investigation into Russian interference in 2016. George Papadopoulos, Mike Flynn, Michael Cohen, and Richard Pinedo never went to trial (nor did Alex Van der Zwaan, though his obstruction covered earlier events). Paul Manafort did go to trial for his tax cheating, but not for interfering with the Russian investigation (his plea breach hearing, which did pertain to lies he told to cover up his role in the Russian interference, was not a trial).

That means this has to be a reference to Roger Stone’s trial.

Two witnesses are known to have been subpoenaed, but not called to testify: Andrew Miller and Jerome Corsi. Randy Credico, a radio personality, testified at great length, including about how he booked Julian Assange and Roger Stone to appear on his radio show.

That’s not enough to prove that the reference is to Corsi (in part because there could have been other witnesses who were subpoenaed but not called to testify that we don’t know about). But now consider the second reference to the Mueller investigation, for something that happened in 2018.

In connection with an investigation into an alleged conspiracy involving persons or entities associated with a foreign government hacking the computers of a United States political party’s central organization, the Deputy Attorney General, acting as Attorney General, authorized the issuance of a grand jury subpoena duces tecum for the production of toll records from a cellular service provider for a telephone used by a member of the news media suspected of participating the conspiracy, as well as an application for a search warrant to search the member of the news media’s internet cloud and email accounts. Following the initial authorization, the Deputy Attorney General, acting as Attorney General, later authorized a voluntary interview of, and the issuance of a testimonial grand jury subpoena to, the member of the news media. All of this information was necessary to further the investigation of whether the member of the news media was involved in the conspiracy to unlawfully obtain and utilize the information from the hacked political party or other victims.

This is a description of someone investigated as a suspect.

While Mueller reviewed whether Don Jr violated the CFAA for accessing a non-public website he got sent a password to, the investigation into whether someone was part of the hack-and-leak conspiracy focused on Roger Stone (and Julian Assange, who does not obviously show up anywhere in this report, even though Mueller obtained a warrant targeting him as well). Two people were known to have been investigated as fellow suspects of Stone: Corsi and Ted Malloch. Mueller’s team obtained warrants and subpoenas targeting both. In Malloch’s case, however, the government is only known to have obtained his phone and his Gmail.

In Corsi’s case, however, Mueller targeted his Apple accounts, as well as email accounts held at CSC Holdings, and Windstream.

Mueller is not, however, known to have obtained a warrant targeting Credico.

If the government treated Corsi as a member of the news media in 2018, when they obtained warrants targeting him as a suspected co-conspirator of Roger Stone, then they likely treated him as a member of the news media in 2019, when they subpoenaed him — but did not call him — as a witness in Stone’s trial. That is, the available evidence strongly suggests that Corsi is the person described in both Mueller entries.

Which, in turn, suggests that DOJ treated Corsi — but not Stone or Credico — as members of the news media.

For what it’s worth, I’m virtually certain that there’s still a Mueller entry missing, pertaining to a member of the news media who asked for a subpoena before he would share materials relating to his work. That person has never been publicly referenced in Mueller-related investigative materials since released, but I believe 302s from the investigation reflect FBI having obtained the materials they were asking for from that member of the news media. But that incident would have fit under 28 CFR 50.10(c)(3)(i)(A), when a member of the news media agrees to provide information so long as he gets a subpoena, which under the media guidelines does not require Attorney General approval.

Update: There’s an important point that has been forgotten by these debates but which is implied in Merrick Garland’s statements about the media policy. There are other means to obtain records on people playing a journalistic function: under FISA, by providing probable cause that they are an agent of a foreign power.

Bill Barr Claimed a Threat Meriting a Four Subpoena Investigation Didn’t Merit a Sentencing Enhancement

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In the aftermath of the Proud Boys-led insurrection, I’ve been reporting over and over on how Bill Barr’s DOJ treated threats by the Proud Boys against Amy Berman Jackson — which the probation office treated as the same kind of threat as the obstruction charge being used against many of the January 6 defendants — as a technicality unworthy of a sentencing enhancement.

Katelyn Polantz advanced that story last night, reporting that DOJ subpoenaed the four Proud Boys implicated by Roger Stone in his threat against ABJ for grand jury testimony.

Stone — testifying at a court hearing in 2019 to explain the post — said at the time that a person working with him on his social media accounts had chosen it.

Then, at another hearing the same year, Stone named names. Tarrio, the leader of the Proud Boys, had been helping him ​with his social media, Stone said under oath, as had the Proud Boys’ Florida chapter founder Tyler Ziolkowski, who went by Tyler Whyte at the time; Jacob Engels, a Proud Boys associate who is close to Stone and identifies himself as a journalist in Florida; and another Florida man named Rey Perez, whose name is spelled Raymond Peres in the court transcript​.

A few days later, federal authorities tracked down the men and gave them subpoenas to testify to a grand jury, according to Ziolkowski, who was one of the witnesses.

Ziolkowski and the others flew to DC in the weeks afterwards to testify.

“They asked me about if I had anything to do about posting that. They were asking me if Stone has ever paid me, what he’s ever paid me for,” Ziolkowski told CNN this week. When he first received the subpoena, the authorities wouldn’t tell Ziolkowski what was being investigated, but a prosecutor later told him “they were investigating the picture and if he had paid anybody,” Ziolkowski said. He says he told the grand jury Stone never paid him, and that he hadn’t posted the photo.

Tarrio and Engels did not respond to inquiries from CNN, and Stone declined to respond to CNN’s questions. ​The FBI’s Washington, DC, office did not respond to requests for comment from CNN.

A person familiar with the case said it had closed without resulting in any charges.

For what it’s worth, given the interest Mueller showed in Stone’s social media work, given the close ties between Stone’s social media work and that of the Proud Boys, and given that parts of the investigation against Stone continued well after his trial, it’s possible prosecutors used Stone’s comments as a way to ask other questions: about whether Stone had paid four of his closest buddies in the Proud Boys (remember they were also looking for a notebook Stone used for his 2016 book that recorded all of his communications with Trump).

That said, DC’s US Attorney’s office paid for four witnesses to come to DC to testify about whether they had had a role in Stone’s threats against the judge presiding over his case.

That raises the stakes on the things Barr said publicly about this threat. As noted, in a sentencing memo written as Barr’s urging, DOJ claimed that the threat against ABJ “overlap[ped] … with the offense conduct in this case.”

Second, the two-level enhancement for obstruction of justice (§ 3C1.1) overlaps to a degree with the offense conduct in this case. Moreover, it is unclear to what extent the defendant’s obstructive conduct actually prejudiced the government at trial.

And DOJ dismissed the import of a threat against a judge by suggesting that if it didn’t prejudice prosecutors at trial, it doesn’t much matter.

More problematic still was Barr’s testimony before House Judiciary Committee last July, just over two months before the President said the Proud Boys should “stand back and stand by.”

When Congressman Ted Deutch asked Barr if he could think of any other case where threatening to kill a witness and then threatening a judge were treated as mere technicalities, Barr kept repeating, at least five times, that “the Judge agreed with me.”

Deutch: You said enhancements were technically applicable. Mr. Attorney General, can you think of any other cases where the defendant threatened to kill a witness, threatened a judge, lied to a judge, where the Department of Justice claimed that those were mere technicalities? Can you think of even one?

Barr: The judge agreed with our analysis.

Deutch: Can you think of even one? I’m not asking about the judge. I’m asking about what you did to reduce the sentence of Roger Stone?

Barr: [attempts to make an excuse]

Deutch: Mr. Attorney General, he threatened the life of a witness —

Barr: And the witness said he didn’t feel threatened.

Deutch: And you view that as a technicality, Mr. Attorney General. Is there another time

Barr: The witness — can I answer the question? Just a few seconds to answer the question?

Deutch: Sure. I’m asking if there’s another time in all the time in the Justice Department.

Barr: In this case, the judge agreed with our — the judge agreed with our —

Deutch: It’s unfortunate that the appearance is that, as you said earlier, this is exactly what you want. The essence of rule of law is that we have one rule for everybody and we don’t in this case because he’s a friend of the President’s. I yield.

That claim — that ABJ agreed with the analysis of Barr and his flunkies — was a lie, a lie made under oath. ABJ, a liberal judge without Barr’s lifetime authoritarian claims about crime, believed the sentencing guidelines are too harsh. She did not believe these enhancements were mere technicalities.

Indeed, in ruling that the enhancement for the threat against her applied — a threat against official proceedings, the same charge being used against many of the insurrectionists — she talked about how posting a threat on social media, “increased the risk that someone else, with even poorer judgment than he has, would act on his behalf.”

I suppose I could say: Oh, I don’t know that I believe that Roger Stone was actually going to hurt me, or that he intended to hurt me. It’s just classic bad judgment.

But, the D.C. Circuit has made it clear that such conduct satisfied the test. They said: To the extent our precedent holds that a §3C1.1 enhancement is only appropriate where the defendant acts with the intent to obstruct justice, a requirement that flows logically from the definition of the word “willful” requires that the defendant consciously act with the purpose of obstructing justice.

However, where the defendant willfully engages in behavior that is inherently obstructive, that is, behavior that a rational person would expect to obstruct justice, this Court has not required a separate finding of the specific intent to obstruct justice.

Here, the defendant willfully engaged in behavior that a rational person would find to be inherently obstructive. It’s important to note that he didn’t just fire off a few intemperate emails. He used the tools of social media to achieve the broadest dissemination possible. It wasn’t accidental. He had a staff that helped him do it.

As the defendant emphasized in emails introduced into evidence in this case, using the new social media is his “sweet spot.” It’s his area of expertise. And even the letters submitted on his behalf by his friends emphasized that incendiary activity is precisely what he is specifically known for. He knew exactly what he was doing. And by choosing Instagram and Twitter as his platforms, he understood that he was multiplying the number of people who would hear his message.

By deliberately stoking public opinion against prosecution and the Court in this matter, he willfully increased the risk that someone else, with even poorer judgment than he has, would act on his behalf. This is intolerable to the administration of justice, and the Court cannot sit idly by, shrug its shoulder and say: Oh, that’s just Roger being Roger, or it wouldn’t have grounds to act the next time someone tries it.

The behavior was designed to disrupt and divert the proceedings, and the impact was compounded by the defendant’s disingenuousness.

This warning about what happens when people post inciteful language on Instagram might well have served as a warning in advance of January 6. But Barr, in testimony under oath to House Judiciary Committee, pretended that his DOJ had not ignored such a threat.

While it didn’t make the sentencing guidelines, the Proud Boy-linked threats to Credico were sufficiently serious that under FBI’s Duty to Warn, they alerted Credico to the threats. Now we learned that line prosecutors treated the threat against ABJ as sufficiently serious that they obtained grand jury subpoenas to learn more about it.

And in testimony under oath, Bill Barr pretended that ABJ agreed — and it was reasonable for his office to treat — such threats as mere technicalities.

Trump’s Second Impeachment Has Already Had a Beneficial Effect

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After Billy Barr spent eight months dedicating DOJ resources to supporting Sidney Powell’s conspiracy theories about Mike Flynn, Trump pardoned his short-lived National Security Advisor for everything associated with the Mueller investigation. Within weeks, Flynn called for martial law, a three-star General with an avid QAnon following inciting an insurrection.

After Billy Barr dismissed the seriousness of threats against Randy Credico and Amy Berman Jackson backed by Proud Boy associates of Roger Stone, Trump first ensured that Stone would do no prison time and then pardoned him for his cover-up of the Trump campaign’s efforts to optimize the release of stolen John Podesta files. While Roger Stone claims to have had no role, the key organization behind the riot, Stop the Steal, adopted the name and the methods he used in 2016. And thus far five members of the Proud Boys have been arrested in association with the coup attempt.

It seems that Trump’s belief in his own invincibility — one he got, in significant part, by successfully obstructing the Mueller investigation by buying silence with promised pardons, then hiring an Attorney General who would and did repeatedly protect him from consequences — not only led him to believe he could incite a riot, but led key bridges between him and the foot soldiers in this coup attempt to believe they had impunity too.

But according to stories in virtually all major outlets (here’s the CNN version), in the wake of both the coup attempt and impeachment for it, Trump has backed off plans to complete that act of impunity by pardoning his spawn and himself.

Initially, two major batches had been ready to roll out, one at the end of last week and one on Tuesday. Now, officials expect the last batch to be the only one — unless Trump decides at the last minute to grant pardons to controversial allies, members of his family or himself.

[snip]

The January 6 riots that led to Trump’s second impeachment have complicated his desire to pardon himself, his kids and personal lawyer Rudy Giuliani. At this point, aides do not think he will do so, but caution only Trump knows what he will do with his last bit of presidential power before he is officially out of office at noon on January 20.

After the riots, advisers encouraged Trump to forgo a self-pardon because it would appear like he was guilty of something, according to one person familiar with the conversations. Several of Trump’s closest advisers have also urged him not to grant clemency to anyone involved in the siege on the US Capitol, despite Trump’s initial stance that those involved had done nothing wrong.

I predicted this would happen here.

To be clear, I don’t think Trump’s moderated plans come from any remorse or sense of contrition. Rather, after the riot Pat Cipollone apparently refused to be a part of such plans anymore (though I also think the Stone and Paul Manafort pardons were far more modest than they might have been). Lindsey Graham’s efforts to minimize the impeachment trial in the Senate also helped, as Lindsey knows any attempt to prevent conviction in the Senate is premised on Trump avoiding any further abuse.

None of this changes the fact that Trump has abused the pardon power far more than any president before him. Nor will it prevent a great many other abusive pardons today.

But to restore legitimacy and belief in the rule of law, the story of Trump’s crimes needs to be told, and told in a way that makes the damage he caused and the betrayal of his supporters clear. If, indeed, Trump decides not to pardon his lawyer, his spawn, and himself, it will be one important step in that process.

Update: This CNN story reports on precisely this phenomenon.

The decision to not pardon any Republican lawmakers or his family members was a last minute one. After initially defending the idea that he may pardon himself or his family members out of concern they would be targeted once he’s out of office, Trump decided Saturday night that he would not pardon anyone in his family or himself.

Trump agreed with the attorneys and other advisers that doing so would increase the appearance of guilt and could make them more vulnerable, but was disappointed at the outcome, according to people familiar with the matter.

Trump, according to people he’d spoken to, appeared more taken with the message of unchecked power it might send to his naysayers than actual protection from liability. His pardon power was among his favorite perks of the job.

The newfound concerns about actually exercising this favorite perk of the job extends to members of Congress worried about their own legal exposure and Ed Snowden and Julian Assange.

Several Republican lawmakers who are alleged to have been involved in the rally that preceded the deadly riot on the US Capitol have sought clemency from Trump before he leaves office, but after meeting with his legal advisers for several hours on Saturday, the President decided he would not grant them, according to two people familiar with his plans.

[snip]

Trump is also not expected to pardon Edward Snowden or Julian Assange, whose roles in revealing US secrets infuriated official Washington.

While he had once entertained the idea, Trump decided against it because he did not want to anger Senate Republicans who will soon determine whether he’s convicted during his Senate trial. Multiple GOP lawmakers had sent messages through aides that they felt strongly about not granting clemency to Assange or Snowden.

Three Inconvenient Truths about a Hypothetical Trump Pardon for Julian Assange

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For the last several weeks, there have been floated hints that Donald Trump might pardon Julian Assange. Assange’s supporters — from frothy MAGAts to esteemed journalistic outlets — are fooling themselves about a possible Trump pardon on several counts.

Before I lay out what those are, let me reiterate, again, that I believe the Espionage Act charges against Assange pose a serious risk to journalism (though as written, the CFAA charge does not). I agree that the Chelsea Manning disclosures, which make up most but not all of the charges currently pending against Assange, included a large number of important revelations, many I relied on with gratitude. I’d be perfectly fine if Vanessa Baraitser ruled on January 4 that US prisons were too inhumane for Assange. And I agree that EDVA would be a horrible venue for Assange (though unlike other defendants, DOJ is not simply inventing that jurisdiction for the onerous precedents it offers out of thin air; it is the most obvious venue for Assange because of the Pentagon).

So this is neither disagreement on the risks an Assange prosecution poses, nor is it an endorsement of the prosecution of Assange as it exists. But a pardon would necessarily involve other crimes, in addition to the ones for which he has been charged, and those crimes go well beyond journalism. They may even involve crimes that Assange backers want no part in supporting.

A Donald Trump pardon of Julian Assange will be a very good way of making sure Assange comes to symbolize those other crimes, not earlier laudable releases, and it might not even end his imprisonment.

It may not work

If Trump gives Assange a pardon, it’s not actually clear it will end his legal jeopardy. The existing Espionage Act charges, particularly the ones for publishing names of coalition informants (which would include the UK) are actually more obviously illegal in the UK than the US. Two UK defendants have already pled guilty to a CFAA conspiracy that makes up part of the CFAA charge against Assange. And because the Vault 7 damage assessment presented at the Joshua Schulte trial explicitly included damage to foreign partners, that publication may expose Assange to Official Secrets Act charges in the UK as well. Plus, there are other aspects of the Vault 7 publication, including Assange’s efforts — with the help of a lawyer he shared with Oleg Deripaska — to coerce immunity from the US with them, that may pose legal jeopardy in the UK if he is pardoned in the US.

I’ve likened the Assange extradition to that of AQAP graphic designer Minh Quang Pham, and this may be another similarity. In that case, as soon as it became clear that the legal disposition that Theresa May was attempting in the UK might not work, SDNY promptly indicted Pham, ensuring Pham would remain in custody no matter what happened in the UK. I wouldn’t be surprised if the reverse happened in the eventuality of an Assange pardon in the US. That is, DOJ may already have sent the UK the evidence to support prosecution of Assange in the UK for some of the things the US would otherwise like to try him on. Indeed, that is consistent with the way the US charged Assange within a day of when Ecuador applied for diplomatic credentials for Assange; the UK has already proven to be in almost immediate coordination with the US on this.

The UK would surely rather the US do the job, but particularly because of the damage the Vault 7 release caused the Five Eyes, I don’t rule out the UK prosecuting Assange if the US could not.

A Trump pardon would have to pardon everything through current day

Assange’s boosters appear to think a pardon would cover just the existing Espionage charges pertaining to the Chelsea Manning leaks (plus the CFAA charge, which is no longer limited to the password crack attempt, though virtually all his boosters ignore the substance of that charge).

That, of course, wouldn’t work. Unless Assange were immediately whisked away to a country that doesn’t have an extradition treaty with the US, he could quickly be charged in a virtually identical indictment covering Vault 7 (and the US could charge it in any case as a way to pressure whatever country he was in). Only, on every charge, the claims now being made to defend Assange — about newsworthiness, about intentionality of revealing protected identities, about the push to leak entire databases — would be far weaker arguments with respect to Vault 7 than with respect to the Manning leaks. Just as one example, WikiLeaks left the identities of the people Joshua Schulte was angry at unredacted in the Vault 7 release, which would make it easier for prosecutors to show forethought and malice for revealing those identities than is the case in (especially) the Cable leaks. And that, again, ignores how Assange repeatedly used the files in an attempt to coerce immunity from the US.

Several close WikiLeaks associates have told me after the initial indictment they were glad it didn’t include Vault 7, because that’s a lot harder to defend against. The US might prefer it for that reason.

So an Assange pardon would have to include some language like, “all offenses against the United States prior to the pardon” — a pardon akin to what Gerald Ford gave Richard Nixon.

Surely, if Trump is going to pardon Assange anyway, he would be willing to do that. Trump’s gonna make Oprah look stingy in the next few weeks, after all. But legally, for a pardon for Julian Assange to stick, it would have to cover all crimes he committed against the US through the present day.

That of course shouldn’t bother Assange supporters — it accords him even broader protection than Mike Flynn got. But it does mean that the pardon would be assessed on the entirety of Assange’s actions, the record of which remains significantly classified and the public record with which virtually no Assange booster — up to and including extradition hearing “expert” witnesses — exhibit familiarity. In other words, they’re arguing blind, without knowing what they’re asking to pardon.

Because an Assange pardon would need to extend through the present it would be tainted by Trump’s own corruption, possibly including litigation

If a Trump pardon for Assange were written broadly enough to stick, it would almost certainly include a conspiracy involving Trump himself, possibly including Russia’s GRU, granting a pardon for Assange in exchange for the optimization of the Podesta files. The pardon itself would likely be a crime for Trump. And that raises the stakes on it.

When WikiLeaks supporters hear “Assange pardon,” they seem to immediately think, “Dana Rohrbacher.” That’s significantly because Assange’s lawyers, in a deliberate use of Assange’s extradition hearing to sow propaganda (of which this is by no means the only example), had Jen Robinson submit testimony describing how Rohrabacher attempted to broker a pardon for Assange in August 2017, a pardon that was contingent on claiming Russia was not behind the 2016 theft of DNC documents.  The testimony was meant to support Assange’s claim that his prosecution is political, a claim that involved misrepresenting the public record in many ways.

When Assange’s team brought this up in his extradition hearing, the lawyer for the US emphasized that Trump didn’t sanction this offer. That’s credible (and backed by contemporaneous reporting), mostly because at the time John Kelly was assiduously gate-keeping offers like this. So WikiLeaks’ focus on the Rohrabacher pardon dangle, while accurate (Robinson is far too ethical to misrepresent things), also falsely suggests that that pardon dangle was the only, or even the most important, pardon discussion between Trump and Assange. It wasn’t. And WikiLeaks knows that, because key WikiLeaks supporters — Randy Credico and Margaret Kunstler — were involved with the one still under criminal investigation.

It is a fact that the Mueller Report stated that they had referred ongoing investigations into whether Roger Stone took part in Russia’s hacking conspiracy to the DC US Attorney’s Office for further investigation. It is a fact that, when the court unsealed warrants against Stone in April, they revealed an ongoing investigation into Stone for the hacking, for conspiracy, and for serving as a foreign agent of Russia, one that Mueller had hidden from Stone. It is a fact that Randy Credico testified under oath he had put Stone in touch with Margaret Kunstler to discuss a pardon for Assange. Credico is evasive about when this discussion began, including whether the discussion started before the election. Texts submitted at trial show Stone and Credico discussed asylum and Credico’s tie to Kunstler on October 3, 2016, in a period when Stone had multiple phone calls with Credico as well as some presumed to be with Trump. Stone appears to have had lunch with Trump on October 8, the day after the Podesta emails dropped. Mike Flynn testified that after the Podesta files dropped, Trump’s closest advisors discussed reaching out to WikiLeaks. Shortly after that, Stone did reach out to WikiLeaks, and WikiLeaks reached out to Don Jr. WikiLeaks reached out to both after Trump won. And according to affidavits obtained against Stone, he and Kunstler started communicating over Signal starting on November 15, seven days after the election. As of October 1 of this year, significant swaths of Kunstler’s two interview reports with Mueller prosecutors remained sealed with redactions protecting an ongoing investigation.

If Stone is to be believed, he pursued this effort to get Assange a pardon at least through 2018. Two things are clear, however. Days after Stone told Assange he was working with the “highest level of Government” to resolve Assange’s issues, Trump directed Corey Lewandowski to direct Jeff Sessions to shut down the entire retroactive Russian investigation. Trump already took an overt act to respond to Stone’s entreaties to help Assange, one documented in Twitter DMs and notes Trump demanded Lewandowski take down. And after Mueller asked Trump about an Assange pardon, Don Jr’s best buddy Arthur Schwartz told Cassanda Fairbanks, “a pardon isn’t going to fucking happen” (she ultimately flew to London to tell Assange what Schwartz told her in person). Nevertheless, Stone’s buddy Tucker Carlson had Glenn Greenwald on pitching one to Trump — as a great way to get back at The [American] Deep State — in September.

To be clear: If Trump pardons Assange for all crimes against the United States, the pardon will still work for Assange (again, unless the UK decides to file charges against Assange instead). And I expect a great deal of Assange’s most loyal boosters won’t give a shit about what all was included in the pardon. Indeed, WikiLeaks’ most loyal fans believe it was a good thing for Assange to partner with the GRU in 2016 to undermine a democratic election.

But if Trump pardons Assange, these details are virtually guaranteed to come under close scrutiny in the months ahead, all the more so if he tries a self-pardon, because this would be one thing that even the 6 Republican majority on SCOTUS might find unreasonable, and it would be the quickest way to prove that not just Stone, but Trump himself, conspired to optimize the files stolen by Russia.

If all that were to happen after he was safe in Oz, Assange probably wouldn’t care, nor would I if I were in Assange’s position. But those backing an Assange pardon are — because of details that virtually none of them understand — cheering Trump to do one of the most corrupt things he would have done over the course of the last five years.

The Mistaken Presumptions of Virtually All Discussions of a Future Trump Prosecution

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Jack Goldsmith has written a piece arguing against a Trump prosecution under the Biden Administration. He’s wrong on a key point that many other people engaging in this discussion also are. He’s wrong about what crime might be prosecuted and whose DOJ investigated it.

Before I get to that, though, I want to critique two smaller issues in his post.

First, he links to the DOJ IG investigation on Carter Page, apparently suggesting it supports a claim that that report found there were inappropriate parts of the investigation into Donald Trump.

The first in this line was the investigation of the 2016 Trump campaign and presidential transition by the FBI and the Obama Justice Department, which continued with the Mueller investigation. Some elements of this investigation were clearly legitimate and some, clearly not.

Except that’s not what that report shows (even ignoring the report’s own problems). It shows that FBI followed the rules on informants and even on including an investigative agent in Trump’s first security briefing (after which Flynn promptly moved to cover up his secret relationship with Turkey). It shows that there were problems with the Carter Page FISA application. But the single solitary thing in the report that would not survive a Franks review is Kevin Clinesmith’s alteration of an email. Every single other thing would meet the Good Faith standard used in Fourth Amendment review. And all that’s separate from the question of whether Carter Page was a legitimate target for investigation, which the bipartisan SSCI investigation has said he was.

I also disagree with Goldsmith’s concerns about the status of the Durham investigation going forward.

But though Durham started out as a credible figure, the review was damaged from the beginning due to Trump’s and Barr’s ceaseless public prejudging of the case (and, for some, Durham’s response to one of Horowitz’s reports). And all of that was before Barr expanded the investigation into a criminal one and then later appointed Durham as a special counsel to ensure that his criminal investigation could continue into the Biden administration. Once again, the nation is divided on the legitimacy of all of this.

The third challenge, exacerbating the first two, is that these investigations—the FBI investigation of the Trump campaign and transition, the Durham investigation, and the Hunter Biden investigation—extended (or will extend) into an administration of a different party. That means that what began as a cross-party investigation where the worry was bias against political opponents will transform, in the middle of the investigation, into an intraparty investigation, where the worry will shift to one party’s desire for self-protection.

I think the Durham investigation is misunderstood by all sides. Even according to Billy Barr, Durham has debunked some conspiracy theories Republicans have floated and he appears to have moved beyond the question of whether the CIA wrongly concluded that Putin wanted to elect Trump. That means if he were to write a report, it would substantially consist of telling the frothy right that their conspiracy theories were just that, and that George Papadopoulos really did entertain recruitment by at least one Russian agent.

That said, the Durham investigation has, unfortunately, been hopelessly biased by Billy Barr’s work in at least two ways. Durham apparently believes that the treatment of partisan bias at DOJ has been equally applied, which is demonstrably false (which also means he’s relying on witnesses who have themselves committed the sins he has used to predicate his own investigation, using FBI devices to speak for or against a political candidate). More troublingly, every single legal document his prosecutors have filed thus far have betrayed that they don’t understand the most basic things about the counterintelligence investigations they’re focusing on. But because of that ignorance, I’m fairly confident that if Durham tried to prosecute people for the theories that Bill Barr has been pushing while micromanaging this, Durham’s prosecutors would get their ass handed to them. Plus, even without Biden’s AG doing anything, I think there’s a possibility that Durham’s independence can be put to good use to investigate the crimes that Barr’s DOJ may have committed in pushing these theories. And there’s an easy way to solve the political nastiness of Barr’s special counsel appointment: by swapping Durham for Nora Dannehy. In short, freed from the micromanaging and mistaken beliefs of Bill Barr, Durham may evolve into a totally useful entity, one that will debunk a lot of the bullshit that the frothy right has been spewing for years.

In any case, the only reason it would be perceived as a cross-party investigation was the micromanagement of Barr. The FBI is not a member of either party, and if Durham finds real crimes — like that of Clinesmith — by all means he should prosecute. Once he is freed of Barr’s micromanagement, though, he may discover that he was given a very partial view of the evidence he was looking at.

Which brings me to Goldsmith’s treatment of whether or not Trump should be prosecuted. Before giving three reasons why one shouldn’t investigate Trump, he lays out what he sees as the potential crime this way:

Many people have argued that the Biden Justice Department should continue this pattern by examining the criminal acts Trump might have committed while in office—some arguing for a full-blown broad investigation, others (like my co-author, Bob Bauer, in “After Trump”) for a measured, narrowly tailored one. I don’t think this is a good idea. I doubt Trump has committed prosecutable crimes in office (I am confident that obstruction of justice prosecution would fail), I doubt he will ever go to jail if he did commit criminal acts in office (which would make the effort worse than useless), Trump will thrive off the attention of such an investigation, and the Biden administration will be damaged in pursuing other elements of its agenda (including restoration of the appearance of apolitical law enforcement). But the main reason I am skeptical is that such an investigation would, in the prevailing tit-for-tat culture, cement the inchoate norm of one administration as a matter of course criminally investigating the prior one—to the enormous detriment of the nation. (I do not believe that federal investigations for Trump’s pre-presidential actions raise the same risk.

There are two problems inherent with Goldsmith’s logic here, problems that virtually all the other people who engage in this debate also make.

First, he assumes that any prosecution of Trump would have to engage in further investigation. Here’s just one of several places where he makes that assumption clear.

The investigation by one administration of the predecessor president for acts committed in office would be a politically cataclysmic event.

Goldsmith doesn’t consider the possibility that such an investigation was begun under Mueller and continued under Bill Barr, waiting for such time as Trump can be charged under DOJ guidelines. It’s odd that he doesn’t consider that possibility, because Mueller laid that possibility out clearly in the report, describing leaving grand jury evidence banked for such time as Trump could be charged (indeed, it’s fairly clear a January 2019 Steve Bannon grand jury appearance included such evidence). If Bill Barr’s DOJ conducted an investigation that shows Trump committed a crime, it would break out of the tit-for-tat that Goldsmith complains about.

Goldsmith also appears to believe, even in spite of Trump’s transactionalism, that any crime Trump committed in office would have begun and ended during his term of office.

Part of these two errors appear to stem from another one. Goldsmith clearly believes the only crime for which Mueller investigated Trump is obstruction and he dismisses the possibility that an obstruction prosecution would stick. I’m agnostic about whether that view of obstruction is true or not. Even just reviewing how the Mueller Report treated the Roger Stone investigation, though, I’m certain there are places where the Mueller Report protected investigative equities. That may be true of the obstruction case as well. If so, then it would suggest the obstruction case might be far stronger than we know.

But it is false that Mueller only investigated Trump for obstruction. That’s because Trump may have entered into a conspiracy with his rat-fucker. In addition to investigating Roger Stone for covering up who his tie to Wikileaks was, Mueller also investigated Roger Stone for entering the CFAA conspiracy with Russia, a part of the investigation that recently declassified information as well as the warrants in the case make clear continued after the close of the Mueller investigation. Not only did Mueller ask Trump about his contacts with Stone on the specific issue for which the rat-fucker remained under investigation after Mueller closed up shop, but Mueller’s last warrants listed Stone’s written record of his communications with Trump during the campaign among the items to be seized in the search of Stone’s homes. If Stone entered into the CFAA conspiracy with Russia and those contacts show that Trump entered into an agreement with Stone on his part of the conspiracy, then Mueller was investigating Trump himself in the conspiracy. There is no way you target Stone’s records of communications with Trump unless Trump, too, was under investigation for joining that conspiracy.

I know I’m the only one saying this, but that’s in significant part because — as far as I know — I’m the single solitary journalist who has read these documents (plus, the unsealed language showing the investigation into Stone on the CFAA charges got buried in the election). But the record makes this quite clear: by investigating Roger Stone, Mueller also investigated Donald Trump for joining the CFAA conspiracy with Russia that helped him get elected. And because Mueller did not complete the investigation into Roger Stone before he closed up shop, he did not complete the investigation into Donald Trump.

And while I’m less certain, abundant evidence tells us what Stone and Trump’s role in the conspiracy may have been: to enter into a quid pro quo trading advance access to select John Podesta files (and, possibly, optimizing their release to cover up the DHS/ODNI Russian attribution statement) for a pardon for Julian Assange.

Stone did something in August 2016 to obtain advance copies of the Podesta files that the frothy right believed would be particularly beneficial in attacking Podesta and Hillary. Days before the Podesta file release in October 2016, Stone and Credico appear to have started talking about a pardon for Julian Assange. After the release of the Podesta files, Trump discussed reaching out to Assange with more people, including Mike Flynn. And no later than 7 days after the election — and given Credico’s refusal to give a straight answer about this, probably before — Stone set out on an extended effort to deliver on that pardon. And Trump took an overt act, as President, to try to deliver on that quid pro quo when he ordered Corey Lewandowski to tell Jeff Sessions to shut down any investigation into the hack-and-leak (which would have shut down the investigation into Assange’s role in it).

I have no idea whether DOJ obtained enough evidence to charge a former president in conspiring with a hostile foreign power to get elected. The investigation into Stone’s role in the conspiracy may have shut down when Barr’s intervention in Stone’s sentencing led all four prosecutors to drop from the case, so it’s possible that a Biden DOJ would need to resume that investigation (and finish it up before statutes of limitation tolled). Still, as of October 1, when DOJ withheld almost the entirety of two interviews with Margaret Kunstler to protect an ongoing investigation, that part of the investigation was ongoing. So if you want to consider the possible universe of Trump charges, this is the possibility you’d need to consider: that after Mueller shut down but before the end of Barr’s tenure, DOJ acquired enough evidence to prosecute Donald Trump once he becomes available to prosecute under DOJ rules.

I think there are other instances where Trump cheated to win in criminal fashion (even ignoring the hush payments for which he got named in Cohen’s charging documents). For example, Barr very obviously violated DOJ guidelines in his treatment of the whistleblower complaint about the Volodymyr Zelenskyy call, and with the evidence that OMB, State, and DOD withheld from the impeachment inquiry and witnesses subject to subpoena (indeed, at least some of whom will likely have no Fifth Amendment privileges after a pardon), the impeachment case is likely far stronger than Goldsmith imagines. Plus, there is an obvious tie to the SDNY investigation into Lev Parnas (where the whistleblower complaint would have been referred had Barr not violated DOJ guidelines). So on that case, it might be a question of Biden shutting down an ongoing investigation, not one of starting a new investigation.

Perhaps the most difficult and controversial decision for a Biden AG will be whether to reopen the investigation into the Egyptian payment Trump may have gotten in 2016 that kept his campaign afloat, one that SCOTUS reviewed (for the Mystery Appellant challenge) and sustained a subpoena for. Per CNN, DOJ doesn’t yet have enough to prosecute that, but that’s because DOJ chose not to subpoena Trump Organization for documents. And a Biden Administration could sanction the Egyptian bank to require it to cooperate in a way they refused to do under Mueller.

But those two instances can’t be shown via the public evidence. The overt act that Trump took in response to Roger Stone’s request — one Stone documented in a DM to Julian Assange — is public. Importantly, this would be a conspiracy that started before Trump got elected and extended into his presidency.

If you want to imagine whether Biden would prosecute Trump, you have to consider the possibility that he would prosecute Trump for crimes Bill Barr investigated.

Roger Stone Takes Georgia, and the Senate, Hostage

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As far as I know, virtually no one else has accurately reported on the significance of this footnote in the Mueller Report, liberated by BuzzFeed hours before election day.

1279 Some of the factual uncertainties are the subject of ongoing investigations that have been referred by this Office to the D.C. U.S. Attorney’s Office.

The footnote explains why, on March 22, 2019, the Mueller team had not yet charged Roger Stone for conspiring with Russian intelligence officers to steal files from Democrats that could be leaked to help Donald Trump get elected President: because DOJ was still investigating it. The footnote — and the entire public record since then — make it clear that that investigation into Stone on CFAA conspiracy charges was ongoing. Indeed, I have shown that the Stone trial for lying to Congress to cover up the identity of his claimed go-between with WikiLeaks strongly suggests that his go-between was neither Jerome Corsi nor Randy Credico, but Guccifer 2.0, quite possibly an American cut-out working with the Russians.

While there are signs that Bill Barr effectively shut down that ongoing investigation by forcing the four Stone prosecutors to withdraw from the case, an investigation into whether Stone conspired with Russia would neither be tolled nor precluded on double jeopardy grounds. Nor would such crimes be covered by Trump’s commutation of Stone’s sentence for covering up who his go-between with WikiLeaks was, which appears to have been an effort to distract from his ties directly to the Russian operation. They are entirely different crimes. To pardon Stone for conspiring with Russia, Trump might well have to specify that Stone did conspire with Russia, something that would not only create legal jeopardy for himself, but would require admitting what he has tried to deny for four straight years, that his campaign “colluded” — conspired even! — with Russia to win.

It would be uncontroversial for Joe Biden’s Attorney General to reopen a case against Roger Stone for conspiring with Russia.

That may be useful background to the news that, after remaining relatively quiet for much of the 2020 election (or at least fronted by Steve Bannon), Stone is now threatening to hold Georgia’s Senate seats — and with it, GOP control of the Senate — hostage.

Conservative operatives and a super PAC with ties to infamous GOP dirty trickster Roger Stone are calling for Trump supporters to punish Republicans by sitting out Georgia’s crucial Senate runoffs or writing in Trump’s name instead. And though their efforts remains on the party’s fringes, the trajectory of the movement has Republicans fearful that it could cost the GOP control of the Senate.

The most aggressive call to boycott or cast protest ballots in the two runoff races has, so far, come from a dormant pro-Trump super PAC with ties to Stone, which unveiled a new initiative to retaliate against the Republican Party’s supposed turncoats by handing Democrats control of the U.S. Senate.

The group, dubbed the Committee for American Sovereignty, unveiled a new website encouraging Georgia Republicans to write in Trump’s name in both of the upcoming Senate runoff elections, which could determine the party that controls the upper chamber during President-elect Joe Biden’s first two years in office. The PAC argued that doing so will show support for the president in addition to forcing Republicans to address the wild election-fraud conspiracy theories floated by Trump supporters and members of his own legal team.

The effort uses some of the same infrastructure that the Mueller team scrutinized as part of its investigation of Stone.

The Committee for American Sovereignty and a sister nonprofit group were set up in 2016 as vehicles for prominent pro-Trump operatives—most notably Stone and former Blackwater chief Erik Prince—to attempt to suppress the Black vote by amplifying claims that Bill Clinton had an illegitimate biracial son. It’s been mostly quiet since then. The PAC’s recent filings with the Federal Election Commission disclose nothing but outstanding federal and state tax liabilities, and its new effort in Georgia doesn’t appear to have received much pickup yet.

A request for comment sent to the Committee for American Sovereignty email address on file with the FEC was not returned. Efforts to reach Pamela Jensen, a California political activist who leads the group, were not successful. Her husband, an attorney named Paul Jensen who describes Stone as a “long time client,” told The Daily Beast in an email his wife “has no comment, and nor do I.” Stone did not respond to inquiries about his present involvement with the group.

Stone made fairly naked threats in the days leading up to Trump’s commutation of his sentence, in that case to share information with prosecutors about Trump’s knowledge of his 2016 activities. The threats worked. This time around, Trump may not have the power to respond to Stone’s threats.

But Stone has proven in the past he’s willing to take reckless actions when he is cornered.

Roger Stone’s 2016 “Stop the Steal” Effort May Have Been Coordinated with Russia

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CNN has traced out in detail what I’ve been noting for some time: the “Stop the Steal” effort ginning up disinformation and threats of violence in the wake of Donald Trump’s loss is a repackaged version of an effort that Roger Stone rolled out in 2016.

[W]hile Stop the Steal may sound like a new 2020 political slogan to many, it did not emerge organically over widespread concerns about voting fraud in President Donald Trump’s race against Joe Biden. It has been in the works for years.

Its origin traces to Roger Stone, a veteran Republican operative and self-described “dirty trickster” whose 40-month prison sentence for seven felonies was cut short by Trump’s commutation in July.

Stone’s political action committee launched a “Stop the Steal” website in 2016 to fundraise ahead of that election, asking for $10,000 donations by saying, “If this election is close, THEY WILL STEAL IT.”

But CNN — with four journalists bylined — misses several important parts of that earlier story, parts that are critical to understanding the stakes for Steve Bannon and Stone now.

Stone may have mixed his political fundraising

First, there’s good reason to believe that Stone was not segregating the different kinds of campaign finance organizations he was using for his 2016 rat-fucking. Even from what remained of his public infrastructure when I wrote this post, it showed that fundraising for one kind of dark money group went to links associated with a PAC.

[I]t’s clear he wasn’t segregating the fundraising for them, and I wonder whether some of his email fundraising involved other possible campaign finance violations. For example, here’s the Stop the Steal site as it existed on March 10, 2016. It was clearly trying to track fundraising, carefully instructing people to respond to emails if they received one. But it claimed to be TCTRAG (what I call CRAG), even though the incoming URL was for Stop the Steal.

That remained true even after Stop the Steal was formally created, on April 10. Even after the website changed language to disavow Stop the Steal being a PAC by April 23, the fundraising form still went to TCTRAG (what I call CRAG), a PAC.

In other words, people would click a link thinking it would fund one effort (and one kind of legal entity) and any money donated would instead go to another effort (and another kind of legal entity). Since then, we’ve learned more about how everyone associated with Trump — Corey Lewandowski, Paul Manafort, and Brad Parscale, in addition to Stone — set up these entities to get rich off of Trump. It’s one reason the rivalry between Lewandowski and Manafort was so heated: because one’s relative prominence in Trump’s campaign effort was directly related to the amount of money that one could grift from it.

But as Bannon’s indictment for fraud makes clear, telling people they’re donating money for one purpose (to build a wall) but using the money for other purposes (to support Bannon’s pricey lifestyle) can be prosecuted as fraud.

When Andrew Miller was negotiating testimony about Stone, he specifically asked for immunity relating to Stone’s PACs and his texts with Stone that the government subpoenaed after his grand jury appearance overlapped with that campaign slush.

In 2016, Stone was (illegally) coordinating with the campaign

As appears to have been the case for all these efforts to grift off the campaign, Stone was coordinating his PAC and dark money efforts with the campaign.

We learned that, in Stone’s case, starting with a legal debate in the lead-up to Stone’s trial about 404(b) information, which is information about other bad actions (including crimes) that prosecutors are permitted to introduce during a trial to prove something like motive or consistent behavior.

In advance of Stone’s trial prosecutors got permission to introduce evidence that Stone lied about something in his HPSCI testimony, on top of all the lies about who his go-between with WikiLeaks was, only that other lie wasn’t charged.

At the pretrial conference held on September 25, 2019, the Court deferred ruling on that portion of the Government’s Notice of Intention to Introduce Rule 404(b) evidence [Dkt. # 140] that sought the introduction of evidence related to another alleged false statement to the HPSCI, which, like the statement charged in Count Six, relates to the defendant’s communications with the Trump campaign. After further review of the arguments made by the parties and the relevant authorities, and considering both the fact that the defendant has stated publicly that his alleged false statements were merely accidental, and that he is charged not only with making individual false statements, but also with corruptly endeavoring to obstruct the proceedings in general, the evidence will be admitted, with an appropriate limiting instruction. See Lavelle v. United States, 751 F.2d 1266, 1276 (D.C. Cir. 1985), citing United States v. DeLoach, 654 F.2d 763 (D.C. Cir. 1980) (given the defendant’s claim that she was simply confused and did not intend to deceive Congress, evidence of false testimony in other instances was relevant to her intent and passed the threshold under Rule 404(b)). The Court further finds that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.

Judge Amy Berman Jackson permitted prosecutors to include it because it showed that Stone was trying to cover up all of his coordination with the campaign.

A September hearing about this topic made clear that it pertained to what Stone’s PACs were doing.

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

This debate suggested prosecutors could present the information via just one witness, but unless I’m misunderstanding, it actually came in via two witnesses: There were a number of texts between Rick Gates and Stone where Stone kept demanding lists from the campaign (indeed, this is something that Stone’s lawyers actually emphasized!). And during the period when Bannon was campaign manager, Stone asked him to get Rebekah Mercer to support some of his other activities, designed to suppress the black vote.

Both of these communications show that Stone was at least attempting to coordinate his efforts with the campaign (it’s not clear to what degree Gates responded to Stone’s demands), and the second detail shows that he was coordinating with Bannon, the guy who took over the Stop the Steal effort this year.

This kind of coordination is illegal (albeit common), though Billy Barr’s DOJ refused to prosecute Trump for any of it (and he even appears to have shut down an investigation into what appeared to be a kickback system Manafort used to get paid).

Stone’s Stop the Steal efforts paralleled the voter suppression efforts of the Russian operation

Even back when I examined Stone’s Stop the Steal efforts in 2018 (when I was skeptical about his legal liability with respect to WikiLeaks), it was clear that the steps Stone took happened to coincide with Russia’s efforts.

Stone’s voter suppression effort is not surprising. It’s the kind of thing the rat-fucker has been doing his entire life.

Except it’s of particular interest in 2016 because of the specific form it took. That’s because two aspects of Stone’s voter suppression efforts paralleled Russian efforts. For example, even as Stone was recruiting thousands of “exit pollers” to intimidate people of color, Guccifer 2.0 was promising to register as an election observer, in part because of the “holes and vulnerabilities” in the software of the machines.

INFO FROM INSIDE THE FEC: THE DEMOCRATS MAY RIG THE ELECTIONS

I’d like to warn you that the Democrats may rig the elections on November 8. This may be possible because of the software installed in the FEC networks by the large IT companies.

As I’ve already said, their software is of poor quality, with many holes and vulnerabilities.

I have registered in the FEC electronic system as an independent election observer; so I will monitor that the elections are held honestly.

I also call on other hackers to join me, monitor the elections from inside and inform the U.S. society about the facts of electoral fraud.

More interesting still, the GRU indictment makes it clear that GRU’s information operation hackers were probing county electoral websites in swing states as late as October 28.

In or around October 2016, KOVALEV and his co-conspirators further targeted state and county offices responsible for administering the 2016 U.S. elections. For example, on or about October 28, 2016, KOVALEV and his co-conspirators visited the websites of certain counties in Georgia, Iowa, and Florida to identify vulnerabilities.

Whether or not GRU ever intended to alter the vote, Russia’s propagandists were providing the digital “proof” that Republicans might point to to sustain their claims that Democrats had rigged the election.

This is a line that Wikileaks also parroted, DMing Don Jr that if Hillary won his pop should not concede.

Hi Don if your father ‘loses’ we think it is much more interesting if he DOES NOT conceed [sic] and spends time CHALLENGING the media and other types of rigging that occurred—as he has implied that he might do.

Since that time, we’ve learned that Maria Butina and Sergey Kislyak were also aiming to focus on observing polls in 2016. We’ve learned that the GRU hackers were actually targeting conservative Florida counties in 2016 (including Matt Gaetz’s district), meaning that had Trump lost he might have turned to the hacking of GOP strongholds to claim that that hacking had undermined his vote totals in Florida.

There are also indications that Mueller was pursuing evidence that not only Stone, but also Paul Manafort, had advance notice of all this. For example, Manafort got asked about Russians hacking voting machines in regards to a November 5, 2016 note he sent to the campaign regarding “Securing the Victory” (which admittedly is a slightly different topic but one that might have elicited an answer about hacking the Boards of Election if Manafort were at all inclined to tell the truth, which he was not).

All of which is to say that, had Hillary won narrowly (as Biden won by close margins in enough states to amount to a resounding victory), we probably would have seen Stone’s Stop the Steal effort to be doing precisely what Bannon’s Stop the Steal has been doing this year, both delegitimizing the outcome and sowing violence. But in that case, the effort may have been accompanied by possible foreknowledge that a close investigation of certain GOP strongholds would disclose proof of tampering in the election.

Stone pitched Bannon on a way to win ugly the day he became Campaign Manager

At this point, I’ve come to believe that prosecutors used their live witnesses at Stone’s trial (aside from former FBI Agent Michelle Taylor, who introduced most of the evidence) to make certain testimony public regarding other investigative prongs. For example, prosecutors got Gates to testify publicly that Stone claimed involvement in the release of stolen emails at a time when only Guccifer 2.0 was releasing them, not WikiLeaks. Prosecutors got Randy Credico to confirm publicly that shortly after the election, he helped Stone try to pay off his election debt by pardoning Julian Assange.

And prosecutors got Steve Bannon to — very reluctantly — repeat grand jury testimony that he regarded a pitch that Stone made to him the day after he became campaign manager to be related to dirty tricks and WikiLeaks.

Prosecutors introduced a similar exchange with Steve Bannon, the guy who took over from Manafort weeks later: an August 18, 2016 email exchange  where Stone claimed Trump could “still win” … “but it ain’t pretty,” and Bannon responded by asking to talk ASAP.

Manafort didn’t testify at Stone’s trial. But Bannon did. Prosecutors had Bannon sitting there on the stand, forcing him to repeat what he had said to a grand jury earlier in the year, yet they only asked him to say this much about what all this means, in which he begrudgingly admitted he believed this discussion about using social media to win was about WikiLeaks:

Q. At the bottom of this email Mr. Stone states, “Trump can still win, but time is running out. Early voting begins in six weeks. I do know how to win this, but it ain’t pretty. Campaign has never been good at playing the new media. Lots to do, let me know when you can talk, R.” Did I read that correctly?

A. That’s correct.

Q. Then you respond, “Let’s talk ASAP”; am I correct?

A. That’s correct.

Q. When Mr. Stone wrote to you, “I do know how to win this but it ain’t pretty,” what in your mind did you understand that to mean?

A. Well, Roger is an agent provocateur, he’s an expert in opposition research. He’s an expert in the tougher side of politics. And when you’re this far behind, you have to use every tool in the toolbox.

Q. What do you mean by that?

A. Well, opposition research, dirty tricks, the types of things that campaigns use when they have got to make up some ground.

Q. Did you view that as sort of value added that Mr. Stone could add to the campaign?

A. Potentially value added, yes.

Q. Was one of the ways that Mr. Stone could add value to the campaign his relationship with WikiLeaks or Julian Assange?

A. I don’t know if I thought it at the time, but he could — you know, I was led to believe that he had a relationship with WikiLeaks and Julian Assange.

Even though prosecutors didn’t lay out precisely what happened next — something that other evidence suggests may have implicated Jared Kushner — Stone’s team never challenged the prosecution claim that this email and the subsequent exchanges did pertain to WikiLeaks. Perhaps, because they had reviewed Bannon’s grand jury and more recent testimony, they knew how he would respond and thought better off leaving it unchallenged.

Perhaps, too, they didn’t want to have to explain how long this exchange persisted. For example, the Stone affidavits — starting with one obtained after Bannon’s first testimony — showed this particular email exchange lasted two more days, through August 19 and 20 (the day before the Podesta “time in the barrel” tweet).

On August 19, 2016, Bannon sent Stone a text message asking if he could talk that morning. On August 20, 2016, Stone replied, “when can u talk???”

And those discussions may have continued into face-to-face meetings in September.

On September 4, 2016, Stone texted Bannon that he was in New York City for a few more days, and asked if Bannon was able to talk.

[snip]

On September 7, 2016, Stone and Bannon texted to arrange a meeting on September 8, 2016 at the Warner Center in New York.

On September 7, 2016, Bannon texted Stone asking him if he could “come by trump tower now???”

On September 8, 2016, Stone and Bannon texted about arranging a meeting in New York.

This is a lot of back-and-forth to discuss the “the tougher side of politics.”

Even though they had Bannon there on the stand, prosecutors did not get him to explain what this plan to win ugly entailed. So we don’t know whether it pertained to Stone’s efforts to suppress the black vote, his Stop the Steal effort to discredit a potential Hillary win, or something more (I’ll eventually get around to what that something more might be). But we do know that when Bannon enthusiastically responded to those pitches, he expected Stone’s plan to win ugly would involve dirty tricks and WikiLeaks.

Stone’s real go-between with WikiLeaks was likely Guccifer 2.0

No one involved with the Trump campaign — at least as far as is public — claims to have known who Stone’s claimed tie to WikiLeaks was.

But Rick Gates apparently did testify that Stone claimed to have a tie to Guccifer 2.0 well before the time he was DMing with the persona on Twitter. The FBI had evidence (though how good it is remains inconclusive) that he was searching on both Guccifer 2.0 and dcleaks before those sites went live. When prosecutors wrote the Mueller Report in March 2019, they still had not determined whether any proof they had of Stone’s awareness of Russia’s ongoing hacking — which extended until November 2016 — was sufficient proof beyond reasonable doubt to charge him as part of the hack-and-leak conspiracy.

As I have argued, there is evidence, albeit not conclusive, that Stone’s go-between with WikiLeaks was Guccifer 2.0.

If that’s right, it suggests that Stone’s parallel efforts with Guccifer 2.0’s, efforts that seemingly anticipated hacks that might have served to discredit the vote in 2016, may not have been coincidence or even just a result of the seeming dance via which Trump’s team and Russia followed the same path without any coordination. It may have reflected coordination.

Let me very clear: I’m not making any claims that happened this year. There’s no evidence of it, and those who tracked election tampering efforts have said they found none.

But until Billy Barr intervened in Stone’s sentencing, all this was (at least per FOIA redactions) an ongoing investigation, the investigation that Stone’s prosecution served, in part, as an investigative step in. If you put that together with Bannon’s own legal exposure in the Build the Wall fraud indictment, it changes the stakes on these men’s efforts to curry Trump’s favor (and to ensure he remains in power, via whatever means).

If Trump remains in charge of DOJ, these men will stay out of prison. If he doesn’t, they may not. And for Stone, especially, a Joe Biden DOJ (or a Democratic Congress, with DOJ’s help) may reveal what he has been denying for years, that Stone willingly coordinated during the 2016 election with someone whose ties to Russia were only thinly hidden.

Rat-Fucker Rashomon: Guccifer 2.0 the Go-Between

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Fresh off the weekend of Roger Stone’s trial, prosecutors got Rick Gates to testify, and then called former FBI Agent Michelle Taylor back on the stand. Ostensibly, they needed to call Taylor to introduce a transcript of a scene from Godfather II that Stone kept using to try to convince Randy Credico to lie to the House Intelligence Committee, something that the two sides had been debating throughout the first week of the trial.

But the first thing prosecutors did when they got their FBI witness back on the stand was to bring Guccifer 2.0 into it.

Q. When you first testified last week, do you remember testifying about the release of some emails of the Democratic National Committee by an organization called WikiLeaks on July 22nd, 2016?

A. Yes, I do.

Q. What was the name of the online persona or figure who took credit for hacking or obtaining those documents from the Democratic National Committee?

A. Guccifer 2.0.

Q. During Mr. Stone’s testimony before the House Intelligence Committee, was he asked about that persona, Guccifer 2.0, and that alleged hack?

A. Yes, he was.

MR. ZELINSKY: I would like to publish now, please, for the witness and the jury, what’s been admitted as Government’s Exhibit 1. This is page 28 of Government’s Exhibit 1.

BY MR. ZELINSKY: Q. Ms. Taylor, I want to direct your attention to the portion of — oh, and, Ms. Taylor, just to remind the jury, what is Government’s Exhibit 1?

A. This is a transcript of Mr. Stone’s testimony before HPSCI.

Q. I’ve put on the screen in front of you page 28 of the transcript. Can you read for us, please, the question and answer that I have highlighted there?

A. “MR. SWALWELL: In 2016, August of 2016, you and the American public are aware, from press reporting, that Russia is accused of hacking democratic emails, is that — “MR. STONE. Yes.”

Q. I want to direct your attention now to page 29, the next page of the same exhibit. Can you read, please, the question and answer that I’ve highlighted on page 29 of Government’s Exhibit 1, the transcript?

A. “MR. SWALWELL: It took me a while, too. “Were you aware when you wrote that article, the Breitbart one, that Guccifer 2.0 was assessed by the Intelligence Community as a cutout for the Russian intelligence services? “MR. STONE: I was aware of that claim, but I don’t subscribe to it. There’s a substantial amount of information you can find online that questions that. I realize it’s an assertion, but as I said in my statement, our intelligence agencies are often wrong.”

Q. Finally, Ms. Taylor, I would like to direct your attention to page 113, bottom of 113 to the top of 114 of the same exhibit, the transcript. First, can you read for us, please, the question that starts at the bottom of page 113 of the transcript?

A. “MR. SCHIFF: Mr. Stone, you’ve acknowledged that it’s the conclusion of the intelligence community that Guccifer 2 is a cutout of the Russian intelligence agencies.”

Q. And Mr. Stone’s response?

A. “MR. STONE: They have said that, yes.”

Mind you, Guccifer 2.0 had been mentioned earlier in the trial, as when Taylor read off HPSCI communications with Stone or Randy Credico’s texts with Stone mentioning the persona, as well as legal debates outside the presence of the jury. Prosecutors also had Taylor present two Guccifer 2.0 posts that were published on the same days as calls involving Stone, June 15 and June 30, in the latter case, a call to Trump.

Q. Can you please read for us the first two sentences of the Guccifer 2 Word Press post from June 15th, 2016?

A. Sure. “Worldwide known cyber security company CrowdStrike announced that the Democratic National Committee, DNC, servers had been hacked by sophisticated hacker groups. I’m very pleased the company appreciated my skills so highly, but, in fact, it was easy, very easy.”

[snip]

Q. Did this same author, Guccifer 2.0, post another message about the hack a few weeks later?

A. He did.

Q. I’d like to publish now, please, for the witness and the Court — and the jury, excuse me, Government’s Exhibit 150, which appears at tab 4 of your binder. What is Government’s Exhibit 150?

A. This is another Word Press post by Guccifer 2 dated June 30, 2016.

Jonathan Kravis would remind the jury how the latter post coincided with a call between Stone and Trump in his closing arguments.

And Stone’s lawyers raised the persona a few times, in their opening, in cross examination, and their close.

But this was the first time prosecutors directly addressed Stone’s claims and communications about Guccifer 2.0, as opposed to with Trump or — via a never identified go-between — with WikiLeaks.

In the prosecution prior to this point, as in most of these Roger Stone stories, the WikiLeaks story was kept remarkably distinct from the Guccifer 2.0 story.

Of the four stories told about Roger Stone, two adopt a structure that treat Stone’s communication with Guccifer 2.0 and WikiLeaks in parallel: there are a handful of communications between him and Guccifer 2.0 (pages 194 to 196 of the SSCI Report, one paragraph on page 44 of the Mueller Report), and a separate discussion of Stone’s attempts to optimize the WikiLeaks releases (pages 221 to 252 of the SSCI Report, pages 51 to 59 of the Mueller Report).

The affidavits show that initial investigative work focused on Guccifer 2.0, not WikiLeaks. The way in which later affidavits present these issues changed over time. But many of them separate Stone’s “Public interactions with Guccifer 2.0 and WikiLeaks” from the (later) “Private Twitter Direct Messages with WikiLeaks and ASSANGE.” The affidavits generally stopped mentioning Stone’s private DMs with Guccifer 2.0 in March 2018.

That parallel structure applies to the indictments, too. Stone gets his own paragraph, ¶44, in the GRU indictment. But the Stone indictment makes absolutely no mention of Guccifer 2.0. The government declared Stone’s prosecution a “related case” to the GRU one, meaning the same judge — Amy Berman Jackson — would preside. Stone’s team unsuccessfully objected. Prosecutors explained the designation, in part, because, “Certain Netyksho defendants, through a fictitious online persona they created, Guccifer 2.0, also interacted directly with Stone concerning other stolen materials posted separately online.” Ultimately, ABJ denied Stone’s attempt to dissociate the case. Stone made an equally unsuccessful attempt to make the Russian attribution more central to the case, even addressing his communications with Guccifer 2.0. Ultimately, however, the case was totally separate.

And yet, just before it closed their case, the government got their FBI witness to review the part of Stone’s HPSCI testimony where he acknowledged that the intelligence community had assessed that Guccifer 2.0 was a cut-out for Russian intelligence.

In response, Stone’s attorney Bruce Rogow got Taylor to confirm that she didn’t know independently whether Guccifer is Russian and “was not aware” of any other communications between Stone and Guccifer 2.0, something he tried unsuccessfully to emphasize in his close.

Q. Good morning, again, Ms. Taylor.

A. Good morning.

Q. Do you know, independently, whether or not Guccifer is Russian?

A. I don’t.

Q. Did Mr. Stone turn over his communications with Guccifer that he mentioned in the transcript?

A. He did.

Q. Did you find any other communications between Mr. Stone and Guccifer?

A. I’m not aware of any.

Taylor’s response was the same one the Mueller Report gave, in that sole paragraph on Stone’s communications with Guccifer 2.0 referenced above. A sentence that has been unsealed since the original release reads, “The investigation did not identify evidence of other communications between Stone and Guccifer 2.0,” beyond the DMs in August and September, 2016. Earlier in that paragraph, however, a previously redacted passage reveals the significance of it. “After the GRU had published stolen DNC documents through Guccifer 2.0, Stone told members of the Campaign that he was in contact with Guccifer 2.0,” which it cites to this almost entirely redacted passage in a Rick Gates interview, a passage that seems to discuss events that predate the July 22 DNC release.

SSCI has read this unredacted 302, and they assess (as I have in the past, about a different 302) that Gates was just confused between the illusory deleted Clinton emails and actual advance knowledge of emails.

FBI, FD-302, Gates 4/10/2018. The Committee assesses· that, at this time, the references to Clinton’s “emails” reflected a focus on allegedly missing or deleted.emails from Clinton’s personal server during her tenure as Secretary of State.

But in context, the unredacted passage in the Mueller Report suggests that Stone told Gates — and others — that he spoke to Guccifer 2.0 before those known August and September exchanges.

This is a question that prosecutors might have asked Gates to testify about publicly. As noted, his testimony directly preceded Taylor’s second trip to the stand. Rather than ask for clarification on that question, though, Aaron Zelinsky instead had Gates describe how, on June 15, in the wake of the DNC announcement that it had been hacked by Russia (and, though Zelinsky didn’t say it, the launch of the Guccifer 2.0 site), Stone asked for the phone numbers of Jared Kushner and one other staffer “to debrief them on the developments of the DNC announcement.” Indeed, Zelinsky treated this as entirely a discussion about WikiLeaks’ upcoming leaks, not Guccifer 2.0’s existing one.

Q. During the balance of June — we’re still in June of 2016 — did you continue to discuss WikiLeaks with Mr. Stone?

A. Yes, off and on.

Q. Why did you continue, in June, to continue to discuss WikiLeaks with Mr. Stone?

A. Because at that point, both myself and Mr. Manafort didn’t believe the information was coming because it still hadn’t come out. And Mr. Manafort had asked me from time to time to check with Mr. Stone to see if the information was still real and viable.

Q. And when you say the “information,” you mean releases from WikiLeaks; is that correct?

A. That’s correct.

As for Agent Taylor’s response to Bruce Rogow’s question — that she was not aware of any other communications between Guccifer 2.0 and Stone besides the DMs he shared with HPSCI — she might not be aware of any late-discovered communications between Stone and Guccifer 2.0 beyond those he shared with HPSCI even if there were any. She testified that her role on “that piece” of the investigation — meaning the investigation of Roger Stone — was as a case agent.

Q. Ms. Taylor, in the course of your work with the FBI, was there a time in your career when you were assigned to work on the investigation led by then Special Counsel Robert Mueller?

A. Yes.

Q. And in particular in the course of your work on the special counsel’s investigation, did you participate in the piece of the investigation that concerned the defendant in this case, Roger Stone?

A. Yes, I did.

Q. What was your role on that piece of the special counsel’s investigation?

A. I was one of the case agents on the investigation of Mr. Stone.

According to Andrew Weissmann’s book, though, her primary role on Mueller’s team wasn’t on the Stone team, she was the lead agent on the obstruction team (which, given the involvement of Andrew Goldstein in certain interviews in fall 2018, was closely involved in investigating Roger Stone’s witness tampering and cover story as part of the obstruction piece). Taylor wrote none of the affidavits targeting Stone. Additionally, she had left the FBI months before the trial, in August 2019, so she also wouldn’t have been included in an interview conducted over the weekend of the trial (possibly with Andrew Miller, Stone’s aide who had managed his schedule at the RNC, where Stone appears to have gotten advance notice of the DNC leak).

So even with Taylor on the stand, Bruce Rogow may not have been able to discover — much less convey to the jury — the government’s full understanding of what Guccifer 2.0’s relationship with Stone was … not what it was when other FBI agents wrote affidavits hiding part of the investigation from him a year earlier, not what it was when they obtained Andrew Miller’s testimony weeks after the release of the Mueller Report, not what it was after that last interview on November 9, 2019, over seven months after the completion of the Mueller Report and smack dab in the middle of the trial.

Indeed, when he was standing there asking the question of Mueller’s lead agent from the obstruction team about communications between his client and Guccifer 2.0, Rogow would know that the FBI had found searches, starting on May 17, 2016, that seemed to indicate that Stone had foreknowledge of the Russian hack-and-leak; Stone had received those two warrants (one, two) in discovery. But Rogow would not know — because it was among the 15 warrants that the government had withheld, in part, to hide the full scope of the investigation from Stone — that two minutes after the FBI obtained a warrant for Stone’s cell site location from June 14 to November 15, 2016, in part to confirm whether Stone had done the searches indicating foreknowledge of the Guccifer 2.0 operation and in part to figure out whom he met with on August 3, 2016 in LA when he would later claim to have been dining with Julian Assange — a different FBI agent, one likely tied to the GRU investigative team, obtained a search warrant for an email that Guccifer 2.0 set up on July 23, 2016. That email was set up the day after the DNC drop, and perhaps not coincidentally, on the last day on which Stone may have deleted his Google search history, hiding those earlier searches showing foreknowledge of the Russian operation.

Up to that moment when former Agent Taylor discussed Stone’s HPSCI testimony confirming he knew the intelligence community believed Guccifer 2.0 to be a Russian cut-out, Stone’s trial was about his lies about who his go-between with WikiLeaks was, not about truths and lies he may have told about Guccifer 2.0.

Unless Guccifer 2.0 was that go-between.

In any case, the trial was, ultimately, about Guccifer 2.0, because some of the evidence prosecutors used to prove that Stone spoke with the campaign about a go-between to WikiLeaks involved Guccifer 2.0. In addition to the disclosure that Stone spoke to Trump before the June 15 and after the June 30 Guccifer 2.0 posts, the trial made something else public for the first time, something that had been a key detail in the affidavits, and would be in the SSCI Report, but which was not one included in the Mueller Report (or Stone’s indictment).

At 8:16AM on August 15, Corsi texted and then at 8:17 AM Corsi emailed Stone the same message, telling him there was “more to come than anyone realizes”:

Appearing in the midst of a story about Stone’s lies about his go-between with WikiLeaks, the texts and emails are fairly innocuous. Though the SSCI Report does seem to believe Corsi’s story that this moment — and the 24 minute call between Corsi and Stone at 12:14PM on August 15 — is when Corsi told Stone about what the Podesta files would include.

(U) The Committee is uncertain how Corsi determined that Assange had John Podesta’s emails. Corsi initially explained in an interview with the SCO that during his trip to Italy, someone told him Assange had the Podesta emails. Corsi also recalled learning that Assange was going to “release the emails seriatim and not all at once.”1572 However, Corsi claimed not to remember who provided him with this information, saying he could only recall that “it feels like a man” who told him.1573

(U) Corsi further recalled that on August 15, after he returned from Italy, he conveyed this information to Stone by phone.1574 According to Corsi, the information was new to Stone. Stone seemed “happy to hear it,” and the two of them “discussed how the emails would be very damaging” to Clinton. 1575 Corsi also reiterated by both text and email to Stone on August 15 that there was “[m]ore to come than anyone realizes. Won’t really get started until after Labor Day.”1576

But that’s only so long as you keep the Guccifer 2.0 story separate from the WikiLeaks story, as the SSCI and Mueller Reports do.

If you combine those stories, though, here’s what a partial timeline looks like:

August 2, 2016: Corsi informs Stone that “the hackers” will release one dump shortly after he returns on August 12 and another in October; he also mentions Podesta.

August 3, 9:12AM: Stone emails Manafort to tell him about, “an idea to save Trump’s ass.”

August 4: Stone tells Sam Nunberg that he dined with Assange the night before (he had been in LA).

August 5: Stone flip-flops on prior public statements backing the Russian attribution, writing a column declaring that Guccifer 2.0, not Russia, did the DNC hack.

August 9: Both Julian Assange and Stone start pushing the Seth Rich conspiracy.

August 12, 5:41PM: Guccifer 2.0 releases DCCC docs, fulfilling the timing (but not the outlet) that Corsi predicted.

August 12, 6:31PM: Guccifer 2.0, Emma Best, and WikiLeaks begin a discussion about exclusivity on the DCCC documents for WikiLeaks.

August 12, 10:16PM: Guccifer 2.0 says he’ll send major trove of DCCC documents to WikiLeaks; WikiLeaks never publishes any DCCC documents.

August 12, 10:23PM: Guccifer 2.0 publicly calls out Stone, “Thanks that u believe in the real #Guccifer2.”

August 13, 10:19AM: Corsi texts Stone: “Call when you can.”

August 13, 10:42AM: WikiLeaks tweets “‘@Guccifer_2’ has account completely censored by Twitter after publishing some files from Democratic campaign #DCCC”

August 13, 11:15AM: Stone tweets, “@wikileaks @GUCCIFER_2 Outrageous! Clintonistas now nned to censor their critics to rig the upcoming election.”

August 13, 7:29PM: Stone tweets, “@DailyCaller Censorship ! Gruccifer is a HERO.”

August 14, 12:58PM: Guccifer 2.0 tweets, “#Guccifer2 Here I am! They’ll have to try much harder to block me! #DNCleak #dccchack”

August 14 (unknown time): Stone DMs Guccifer 2.0: “Delighted you are reinstated.”

August 14 (unknown time, per Corsi article): Corsi starts a file called “Podesta.”

August 15, 1:33AM: Stone tweets about Podesta for the first time ever, seemingly in response to NYT story on black ledger implicating Manafort: “@JohnPodesta makes @PaulManafort look like St. Thomas Aquinas Where is the @NewYorkTimes?”

August 15, 8:16 and 8:17 AM: Corsi texts and emails Stone, “More to come than anyone realizes.”

August 15, 12:14PM: Corsi and Stone speak for 24 minutes.

August 15, 2016 (unknown time): Guccifer 2.0 DMs Stone: “thank u for writing back . . . do u find anyt[h]ing interesting in the docs i posted?”

So long as the WikiLeaks story is kept separate from the Guccifer 2.0 one, that August 15 DM from Guccifer 2.0 to Stone appears to be a question about the DCCC emails posted on August 12, and so, as Stone claimed, totally innocuous. But given the evidence that Corsi and Stone acquired advance knowledge of the content of select Podesta emails by August 15 — particularly given Stone’s claim, reportedly made before July 22, to have been in touch with Guccifer 2.0 and his apparent foreknowledge of the GRU personas — that August 15 DM appears to be a comment on the Podesta files.

That is, that August 15 was not innocuous at all. It appears to have been, rather, the GRU’s persona asking Stone whether he liked what he had received in advance.

 

The movie Rashomon demonstrated that any given narrative tells just one version of events, but that by listening to all available narratives, you might identify gaps and biases that get you closer to the truth.

I’m hoping that principle works even for squalid stories like the investigation into Roger Stone’s cheating in the 2016 election. This series will examine the differences between four stories about Roger Stone’s actions in 2016:

As I noted in the introductory post (which lays out how I generally understand the story each tells), each story has real gaps in one or more of these areas:

My hope is that by identifying these gaps and unpacking what they might say about the choices made in crafting each of these stories, we can get a better understanding of what actually happened — both in 2016 and in the investigations. The gaps will serve as a framework for this series.