Posts

Some Issues of Timing Revealed by Manafort’s Filings

/68 Comments/in , , /by

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

On Tuesday, Mueller’s team gave Paul Manafort the contents of Rick Gates’ electronic devices for the first time. Yesterday, after receiving another large dump of evidence, Manafort moved to delay his July 25 trial, a motion the Mueller team objected to.

Those are just a few of the details revealed by a slew of filings submitted in Manafort’s EDVA case yesterday. Those filings include:

  1. The government’s opposition to a motion Manafort submitted in June trying to keep all mention of the Trump campaign, the DC case against him, and the fact he got thrown in jail in the DC case from being introduced in his EDVA trial
  2. A motion to move his trial from Alexandria to Roanoke based on some crazy claims but ultimately boiling down to Manafort’s belief that if he is tried by a jury of his sleazy political influence peddling peers, he’s more likely to go to prison
  3. A supplement to Manafort’s bid to get a hearing on leaks, which includes January and February discovery request letters and two electronic communications describing a meeting between the FBI and the AP from April 2017; all of those exhibits are worth reading but I won’t deal with them here
  4. A motion to delay his trial until sometime after the DC one

It’s the first and the fourth items that I’m interested in here.

emptywheel’s Continuing Obsession with Paul Manafort’s 404(b) Notice

Folks seem to pretty much understand my continuing obsession with Paul Manafort’s iPod habit (or rather, his efforts to deem the seizure of his eight iPods improper). Perhaps less obviously interesting is my continuing obsession with the 404(b) notices in his two cases, which are the way lawyers fight over whether evidence of related crimes can be admitted in trial. In Manafort’s case, I think this fight may reveal something about how Mueller sees the various pieces of the puzzle fitting together.

As I previously noted, the government fought to delay disclosure of 404(b) in the DC case until June 15. When they did submit the 404(b) notice in that case, the government said they want to include evidence of three other crimes, two of which happen to be New York State crimes (the apartment in question is a Trump Tower one) that might be charged in the state.

Here’s the 404(b) motion. Mueller wants to introduce three things:

  • Evidence that one reason that Manafort and others arranged for [Skadden Arps] to be retained for the de minimis sum of approximately $12,000—even though they knew at the time that Law Firm A proposed a budget of at least $4 million—was to avoid certain limitations imposed by Ukrainian public procurement law.
  • Evidence that Manafort was treating a NYC apartment as a business property with the IRS but as a personal dwelling with a lender.
  • Evidence that Manafort structured intra-Cypriot funds to hide income.

The first of those two, of course, involve crimes in NY state.

In the EDVA case, I had suspected that the government asked TS Ellis to issue a discovery order to make it clear they wouldn’t provide 404(b) notice in this case until a week before trial — I got the date wrong but I think it’d be July 18 — but can move to avoid any pretrial notice.

So maybe that’s what Mueller’s trying to get Manafort to agree to. The EDVA standard order he’s trying to get him to use would require 404(b) notice by July 17, but permits the government to request avoiding such pretrial notice.

It is further ORDERED that, no later than seven calendar days before trial, the government shall provide notice to the defendant, in accordance with FED. R. EVID. 404(b), of the general nature of any evidence of other crimes, wrongs, or acts of defendant which it intends to introduce at trial, except that, upon motion of the government and for good cause shown, the court may excuse such pretrial notice.

Yesterday’s opposition to Manafort’s bid to limit what it can say about the Trump campaign and the DC case confirms I was (at least partly) correct — the government wanted a discovery order so they can avoid telling Manafort what they want to raise at trial.

The defendant’s request to preclude evidence relating to the District of Columbia case is a premature effort to preclude evidence under Rule 404(b). See Doc. 93 at 5 n.1 (“[T]his motion is being filed in the event that the Special Counsel seeks at trial to introduce evidence or advance arguments concerning ‘other act’ evidence.”). The standard practice in the Eastern District of Virginia, as referenced in the Government’s proposed discovery order (Doc. 83 at 7), is that the government provide notice of Rule 404(b) evidence it intends to introduce at trial seven days before trial. Although the defendant has not responded to the Government’s Motion for Entry of Discovery Order, the government intends to follow the District’s standard practice with respect to Rule 404(b) notice. It nevertheless bears noting that contrary to the defendant’s characterization, there is substantial overlap between the evidence in District of Columbia case and the one before this Court. The Superseding Indictment in the District of Columbia alleges tax fraud that overlaps with the substantive tax charges in the Eastern District of Virginia.

In other words, in a filing arguing that the government should be able to bring in details about both the Trump campaign (because some of the loans he’s being tried for he only obtained by getting the banker a position on the Trump campaign) and about Gates’ guilty plea in DC (but not about the crimes that Manafort allegedly committed while on bail that got him thrown in prison), Mueller’s team makes it clear they intend to wait to tell Manafort what other crimes they might mention at the EDVA trial until July 18.

In any case, this opposition motion would seem to limit how much Mueller can mention about the collusion case in chief to a description of that loan. So it’s probably just that Mueller has some other activity, akin to the NY based crime they plan to introduce in the DC case, perhaps some criminal activity that can be charged in VA, that they plan to introduce at trial. In any case, they’re not going to release it for another 10 days or so.

The big discovery dump

Sometime after 6:28 yesterday, Manafort submitted his motion to delay his trial to sometime after his other one. Now, as Josh Gerstein noted in response to my pestering him to review Manafort’s “rocket docket” strategy of splitting this trial from his DC one, Manafort lawyer Kevin Downing always wanted to do the DC one first.

Manafort attorney Kevin Downing requested the Virginia case be set for sometime in November, after the Washington trial. Downing told Ellis the defense needs time to assemble legal motions in both cases and to prepare for the back-to-back trials.

“This is a massive indictment,” the defense attorney said. “We were envisioning a trial in this case in November, following the case in D.C.”

So effectively, what Manafort did was wait until the very last minute, and then ask for what they wanted in the first place, this trial to go second. To justify the delay, his lawyers are citing the difficulties posed by him being in jail (which is a fair reason, but one most similarly situated defendants don’t get concessions for).

But I’m interested in the depiction of the latest discovery received that they also use to make the request.

Indeed, in terms of discovery, defense counsel has continued to receive voluminous amounts from the Special Counsel up-to-the-moment. Thus far, there have been twenty-three (23) discovery productions, the most recent of which was produced to the defense at 6:28 p.m. today, July 6, 2018 (i.e., the same date that this motion for a continuance is being filed)—a mere 19 days before the scheduled trial in this case. The Special Counsel’s production today appears to contain approximately 50,000 pages of new documents. Indeed, this is despite the Special Counsel’s representations earlier this year that discovery was complete, or nearly complete.4 In fact, since May the defense has received seven discovery productions which include at least 140,000 pages of material. The Special Counsel’s next most-recent disclosure—coming on July 3, 2018 (a mere 22 days prior to the scheduled trial)—includes data obtained from the primary cooperating witness’s personal electronic devices and will require extensive review and analysis. (This is the same witness who resolved his case in the District of Columbia in February of this year.) Moreover, defense counsel’s review of the discovery produced to date has been unusually timeconsuming because discovery relevant to this case has often been co-mingled with discovery that appears relevant solely to the D.C. Case. As the Court observed at the recent motions hearing, this is primarily a documents case, and defense counsel require additional time to thoroughly review and analyze with their client the voluminous documents produced by the Special Counsel. It is critically important for the defense to have sufficient time to review the discovery with Mr. Manafort because he understands many of the relevant documents (and their context) better than anyone else.

4 See, e.g., Doc. 20 (filed Feb. 28, 2018) at 7 (“[W]e believe that almost all of the relevant discovery in this matter in our possession has already been produced in the course of the District of Columbia prosecution.”); see also D.C. Case, Doc. 146 (filed Jan. 12, 2018) at 1 (“As of the date of this filing, the government has completed a substantial portion of the discovery in this case.”).

Now, I await Mueller’s response to this, as I suspect Manafort is obscuring that, to the extent it pertains to this trial, this recent discovery has more to do with Mueller’s obligations to give Manafort discovery on incriminating evidence against people who will be witnesses at the trial. He’s also obscuring how discovery happened in this case, which started coming 20 days after he was indicted in DC in October and for which the most pertinent materials were identified as “hot.” The full context of the document he cites in that footnote reads,

In addition, we believe that almost all of the relevant discovery in this matter in our possession has already been produced in the course of the District of Columbia prosecution. The government made its first production on November 17, 2017, which included: (1) foreign bank account records for the accounts in Cyprus and Saint Vincent & the Grenadines; (2) domestic financial records; and (3) documents from Manafort’s tax preparer that were identified by the government as particularly relevant. In ensuing ten productions, the government has produced a range of emails, financial documents and other records, as well as materials obtained from a number of different devices and media. 4 As of February 28, 2018, the government had made eleven separate discovery productions to the defendant. In addition, the government also has produced for the defendant documents that it identified as “hot.”

So Manafort had 7 months to review the most important discovery in this case working from home confinement. Manafort is also, surely, obscuring how much of this discovery pertains to the DC case (which is still two months away), not this EDVA one.

These motions were due on Friday in any case, and as Gerstein pointed out, Downing always wanted to do this trial after the DC one, so it’s unlikely this request for a continuance is a response to the discovery he got last week. And the late filing might be best explained by a late edit to incorporate yesterday’s production in the motion. The motion for a continuance is far, far better drafted than the goofy venue change one.

But I do find it interesting that Mueller is just now showing Manafort what he found in Rick Gates’ electronic devices. I wonder if, in doing so, he expected Manafort to rethink his willingness to run interference for Donald Trump? If so, then the request for a continuance would be rather interesting.

Devin Nunes Confirms Classified Information that “Henry Greenberg” Wasn’t Working for the FBI, and Other Tales of the Half-Wit Running our Intelligence Oversight

/30 Comments/in , /by

As I’ve been chronicling, Devin Nunes continues his effort to invent some reason to fire Rod Rosenstein. As part of his last extortion attempt, Nunes demanded information he thought would reveal that “Henry Greenberg,” a Russian offering dirt on Hillary Clinton, was secretly working for the FBI.

How did you use our nation’s counterintelligence capabilities. These are capabilities used to track terrorists and other bad guys around the globe. How did you weaponize that against a political campaign, against the Trump campaign, where ultimately it ended up in Carter Page having a FISA warrant put against him which allowed the government to go in and grab all of his emails and phone calls. So that’s primarily what we’ve been investigating for many many months. I will tell you that Chairman Gowdy was very very clear with the Department of Justice and FBI and said that if there was any vectoring of any informants or spies or whatever you want to call them into the Trump campaign before the investigation began, we better know about it by Sunday, meaning today. He was very very clear about that. And as you probably know there’s breaking news this morning that now you have a couple Trump campaign people who are saying that they were, that they’ve amended their testimony before the House Intelligence Committee, they sent in both Friday night and this morning, amendments to their testimony saying that in fact they feel like somebody, they’re not claiming that it was the FBI, but someone ran informants or spies into them to try to get information and offer up Russian dirt to the Trump campaign. Now this would have been in May of 2016. Which is obviously months before this counterintelligence investigation was opened by the FBI into the Trump campaign.

[snip]

If I were them I would pick up the phone and let us know what this is about, this story that broke in the Washington Post, this morning, just hours ago. They probably ought to tell us whether or not they were involved in that or else they have a major major problem on their hands.

Last Friday, DOJ and FBI had provided most of the documents requested, pending a few technical issues and a review by Dan Coats of some intelligence equities. Included among those was a classified letter telling Nunes whether FBI used informants against the Trump campaign.

On June 22, 2018, the FBI submitted a classified letter to the Committee responding to the Chairman’s question regarding whether, in connection with the investigation into Russian activities surrounding the 2016 Presidential election, the FBI utilized confidential human sources prior to the issuance of the Electronic Communication (EC) initiating that investigation.

That answer clearly didn’t feed Nunes’ Witch Hunt conspiracies, so he’s reformulating his request, apparently certain that if he keeps trying he’ll discover the vast (yet totally ineffective) Deep State plot to undermine the Trump campaign. He’s asking for contacts not just between informants, but also undercover agents or confidential human sources who interacted with any of 14 Trump campaign associates.

The new request seeks information not only on “FBI informants,” but also on “undercover agents, and/or confidential human sources” who interacted with former Trump associates before July 31, 2016 — the start of the FBI’s counterintelligence investigation into connections between the Trump campaign and Russia.

The list of Trump associates Nunes indicated he’s interested in includes: Michael Caputo, Sam Clovis, Michael Cohen, Michael Flynn, Corey Lewandowski, Stephen Miller, Peter Navarro, Sam Nunberg, George Papadopoulos, Carter Page, Walid Phares, Joseph Schmitz, Roger Stone and Donald Trump Jr.

It’s a really awesome request. Aside from confirming the content of that classified letter (among other things, that “Henry Greenberg” wasn’t our intelligence asset when Roger Stone entertained offers of Hillary dirt), Nunes has given us a list of campaign associates who should be criminally investigated:

  • Michael Caputo
  • Sam Clovis
  • Michael Cohen
  • Michael Flynn
  • Corey Lewandowski
  • Stephen Miller
  • Peter Navarro
  • Sam Nunberg
  • George Papadopoulos
  • Carter Page
  • Walid Phares
  • Joseph Schmitz
  • Roger Stone
  • Donald Trump Jr.

Notably, a number of these people — Caputo, Cohen, Lewandowski, Miller, Stone, and Navarro — aren’t on the list of document requests Mueller had submitted to the White House by January. Perhaps for the first three plus Stone, that’s because they never worked in the White House (and in the case of Caputo and Stone, pretended not to work for the campaign so as to give the campaign plausible deniability from the rat-fucking).

Nevertheless, their inclusion here seems to confirm that Nunes believes they are targets or at least subjects of Mueller’s investigation. Of those not on Mueller’s January list, we know that Stone and Cohen are in deep shit, so maybe the others are too!

Thanks Devin! Let’s hope leaking that classified information doesn’t get you in trouble with your colleagues, though.

A pity for the guy running our intelligence oversight that he can’t figure out that a number of these targets came from Rick Gates flipping, and not informants planted way back in May 2016.

Roger Stone and ConFraudUs

/82 Comments/in , , /by

CNN’s David Gelles has an instructive tweet this morning showing how the rate at which Trump tweets about the Mueller “witch hunt” is accelerating.

Assuming this includes this morning’s two “witch hunt” tweets, Trump is on pace to use the phrase 28 times by the end of the month, though I bet he’ll continue to accelerate the use of it in the week remaining in the month.

The Mueller investigation is, I suspect, coming to a head.

I don’t claim I know how it will turn out. The president has an enormous amount of power and his flunkies in Congress promise they’re about to end Rod Rosenstein’s bend-don’t-break defense by impeaching him (though Rosenstein and Chris Wray have just thrown more documents out to slow the Republicans). It’s certainly possible that Trump will make a last ditch effort to undercut the Mueller investigation and that effort will be competently executed and none of the secondary fall-back defenses Mueller has put into place will work. For now, though, the Trump team seems intent on a delay and discredit strategy, which won’t stave off any imminent steps.

So we shall see whether Trump succeeds in undercutting the investigation. I keep thinking, “that’s why they play the game,” but this is no game.

There are a number of reasons I think Mueller’s investigation is coming to a head. But consider one detail. I’ve long explained that Mueller seems to be building a series of Conspiracy to Defraud the United States indictments that will ultimately incorporate the entire Russian operation (and may integrate the Trumpsters’ international self-dealing as well). As Mueller’s team has itself pointed out, for heavily regulated areas like elections, ConFraudUs indictments don’t need to prove intent for the underlying crimes. They just need to prove,

(1) two or more persons formed an agreement to defraud the United States;

(2) [each] defendant knowingly participated in the conspiracy with the intent to defraud the United States; and

(3) at least one overt act was committed in furtherance of the common scheme.

Let’s see how evidence Mueller has recently shown might apply in the case of Roger Stone, Trump’s lifelong political advisor. We already knew that Stone had communications that he did not immediately disclose with Guccifer 2.0 and Wikileaks. With both, Stone has contributed to and reinforced claims the entities were not Russian operations, though his conversion about the source of the Hillary emails was pretty sudden and curiously timed.

Now we know that in May, Stone had lunch with someone calling himself Henry Greenberg offering dirt on Hillary. His explanation — based only on the texts that Michael Caputo was asked about in a Mueller interview — is not that he didn’t entertain the offer, but that he didn’t take Greenberg up on the offer as made in late May because Greenberg was asking for big money.

Both clearly recognized Greenberg as a Russian, therefore a foreigner offering something of value during an election.

Bizarrely, in trying to rebut the import of this exchange publicly, Caputo and Stone are doing nothing more than working the public refs, claiming to assume this was an FBI sting. Mueller knows whether it was an FBI sting, and there’s virtually no way he’d be asking questions about it if it were (particularly if Stone really didn’t take the bait). In short, Stone has no justification for this he’s willing to offer publicly; instead, he’s just adopting the SpyGate narrative in an attempt to discredit the investigation. And that’s assuming there were no follow-ups or other damning texts that didn’t involve someone willing to leak them to the press.

And all that happened before Peter Smith came on the scene, someone who, unlike Donald Trump, was willing to spend money for such things, an operation Stone is suspected of being involved in but which he studiously avoids mentioning when trying to explain himself. Smith did obtain emails from people Matt Tait advised him might be part of a Russian operation, and when he couldn’t validate them, sent them on to Wikileaks.

Which is to say Stone repeatedly entertained offers from foreigners illegally offering dirt that would benefit the Trump campaign — Greenberg, Guccifer 2.0, possibly Peter Smith’s Dark Web hackers. He may even have exhibited a belief that Australian Julian Assange had and could release the latter dirt, possibly with the knowledge they came from Russians.

So we’ve got Stone meeting with other people, repeatedly agreeing to bypass US election law to obtain a benefit for Trump, evidence (notwithstanding Stone’s post-hoc attempts to deny a Russian connection with Guccifer 2.0 and Wikileaks) that Stone had the intent of obtaining that benefit, and tons of overt acts committed in furtherance of the scheme.

And all that’s without leaning on the the other stuff Mueller found on Stone’s phone, which Stone is also trying to explain away by public conspiracies (in this case that the phone content was obtained with a FISA order rather than with a probable cause warrant obtained on March 9).

This is just one of the people Mueller has publicly focused on in recent days. We could lay out similar arguments for Michael Cohen, Paul Manafort, and Brad Parscale, at a minimum. Mueller had — and acted on — probable cause warrants covering five AT&T phones in March, all of which probably had close ties to Rick Gates. Assuming those targets are distributed proportionately with the US population, he’s likely to have obtained warrants for as many as 15 phones just in that go-around.

So if Roger Stone is any indication, the Mueller investigation may soon be moving into a new phase.

Mueller Frees Up the Troll Team

/40 Comments/in , /by

In the background of the celebrating over the Carpenter SCOTUS decision — which held that the government generally needs a warrant to access historical cell phone location — there were a few developments in the Mueller investigation:

  • The George Papadopoulos parties moved towards sentencing, either on September 7 or in October. If Mueller told Papadopoulos his wife Simon’s Mangiante seeming coordination of the Stefan Halper smear with Sam Clovis (and his lawyer, Victoria Toensing) and Carter Page got him in trouble, we got no sign of that.
  • Amy Berman Jackson dismissed a Paul Manafort attempt to limit the criminal penalties of his Foreign Agent Registration Act violations; this isn’t very sexy, but if the well-argued opinion stands, it will serve as a precedent in DC for other sleazy influence peddlers.
  • After ABJ made sure Rick Gates ask Mueller if he really didn’t mind Gates going on a trip without his GPS ankle bracelet, Gates got permission to travel — with the jewelry.
  • Kimba Wood accepted Special Master Barbara Jones’ recommendations, which among other things held that just 7 of the files reviewed so far pertain to the privilege of anyone, presumably including Trump,  to whom Michael Cohen was providing legal services. So Cohen and Trump just paid upwards of $150,000 to hide the advice Cohen has gotten from lawyers and seven more documents — that is, for no really good reason.
  • In two separate filings, four DOJ lawyers filed notices of appearance in the Internet Research Agency/Concord Management case.

It’s the latter that I find most interesting. Mueller has added a team of four lawyers:

  • Deborah A. Curtis
  • Jonathan Kravis
  • Kathryn Rakoczy
  • Heather Alpino

To a team with three (plus Michael Dreeben):

  • Jeannie Sclafani Rhee
  • Rush Atkinson
  • Ryan Kao Dickey

Devlin Barrett (he of the likely impressive link map) reported that Mueller did this to prepare for the moment when his office shuts down and the Concord Management nuisance defense drags on for years.

People familiar with the staffing decision said the new prosecutors are not joining Mueller’s team, but rather are being added to the case so that they could someday take responsibility for it when the special counsel ceases operation. The case those prosecutors are joining could drag on for years because the indictment charges a number of Russians who will probably never see the inside of a U.S. courtroom. Russia does not extradite its citizens.

The development suggests Mueller is contemplating the end of his work and farming out any potentially outstanding prosecutions to other parts of the Justice Department.

Except this doesn’t make sense. Not only are Concord and the judge, Dabney Friedrich, pushing for a quick trial, but Atkinson and Dickey are themselves DOJ employees, so could manage any residual duties.

Far more likely, Mueller is ensuring one of his A Teams — including Dickey, DOJ’s best cyber prosecutor — will be able to move on to more important tasks on the central matters before him.

By January, Trump Believed Manafort Could Flip on Him; Since Then, Trump Learned Mueller Wanted to Know about Manafort’s Requests to Russia for Help

/49 Comments/in , /by

I don’t pretend to know Paul Manafort’s psyche or the many competing pressures he is experiencing right now. So I will not pretend to know whether Manafort will seek a plea deal with Mueller, either now or after sitting in the pokey for some time, or after Judge Ellis rules on the last remaining challenges to Mueller’s authority, which is likely the only way short of pardon Manafort will avoid conviction and imprisonment on his corruption charges.

But I agree that the chances he will seek a plea deal increase now that he is in jail.

In the wake of his jailing yesterday, I’ve seen some discussion about whether he (and Michael Cohen, who is openly telegraphing he’d like to start plea negotiations) can flip. That is, smart people are raising real questions whether Paul Manafort has anything to offer Mueller in a plea deal.

I don’t pretend to know what Mueller’s view on that is, either, or whether it changed in the wake of Rick Gates pleading guilty back in February (though I did entertain the question last month).

But I do think this story, from January, deserves reconsideration. In it Howard Fineman laid out the strategy with respect to the Russian investigation Trump has been pursuing ever since, culminating in his claims over the last few days about the DOJ IG Report. He planned then and has set out since to discredit the FBI and the Mueller investigation rather than to fire anyone else.

Trump — who trusts no one, or at least no one for long — has now decided that he must have an alternative strategy that does not involve having Justice Department officials fire Mueller.

“I think he’s been convinced that firing Mueller would not only create a firestorm, it would play right into Mueller’s hands,” said another friend, “because it would give Mueller the moral high ground.”

Instead, as is now becoming plain, the Trump strategy is to discredit the investigation and the FBI without officially removing the leadership. Trump is even talking to friends about the possibility of asking Attorney General Jeff Sessions to consider prosecuting Mueller and his team.

We now know Fineman’s story came in the immediate wake of a letter to Mueller making fairly absurd arguments about why Trump couldn’t be interviewed and, more importantly, providing illogical explanations for some of the actions he had taken. The letter is important because whereas an earlier June 2017 letter imagined any investigation into Trump constituted “a preliminary inquiry into whether the President’s termination of former FBI Director James Comey constituted obstruction of justice,” by January Trump’s lawyers recognized Mueller needed to ask Trump about both “collusion” and obstruction of justice.

As I noted at the time Fineman’s piece came out, though, the far more interesting detail than Trump’s strategy to beat back a “collusion” investigation is that multiple Fineman sources (Chris Ruddy, who I think serves as Trump’s more rational brain, was a source for this story) report that Trump had considered whether Manafort would flip on him and had concluded that he would not.

He’s decided that a key witness in the Russia probe, Paul Manafort, isn’t going to “flip” and sell him out, friends and aides say.

We have since learned that Trump had John Dowd offer pardons to both Mike Flynn and Manafort and there’s reason to believe that Manafort remains in a joint defense agreement with Trump. So Trump’s belief that Manafort wouldn’t flip on him likely derived from tangible discussions and not just gut feel.

At the time he was telling people Manafort wouldn’t flip, Trump would have known that Mueller was interested in his involvement in “the statement of July 8, 2017, concerning Donald Trump, Jr.’s meeting in Trump Tower;” Trump’s lawyers believed that Mueller had seen evidence that would lead him to conclude that, he “dictated a short but accurate response to the New York Times article on behalf of his son.” Trump also worked hard (and has been assisted consistently by the press in doing so) to spin the question of his involvement in the June 9 meeting as being about “a private matter with the New York Times,” and not a question about his conversations with Vladimir Putin about the statement.

But nothing else that Mueller had communicated to Trump’s lawyers (if we can believe Jay Sekulow and John Dowd’s understanding of their January 8 conversation with Mueller’s team) indicated an interest in matters even remotely related to Paul Manafort.

Which is to say in January, Trump had reason to believe that Manafort might have information that incriminated him independent of anything Mueller’s team had told him.

Of course, since then, Trump has far more reason to fear Manafort seeking a cooperation agreement. That’s because Mueller has since told Trump’s team things that confirm they know things that implicate Trump’s interactions with Manafort directly — and therefore place a premium on any testimony he’d give. Piggy-backing off the questions (Jay Sekulow thinks) Mueller wants to ask Trump, here are a bunch of questions that Mueller likely would like Manafort to explain about Trump.

  • Whether, like Mike Flynn, Trump offered Manafort a pardon in exchange for his refusal to cooperate.
  • Whether Trump discussed the Trump Tower meeting, and the offer of dirt, with Manafort during their meeting on June 7, 2016, and whether that led Trump to promise, “a major speech on probably Monday of next week and we’re going to be discussing all of the things that have taken place with the Clintons.”
  • Whether Trump had a role in how Don Jr’s emails about the June 9 meeting got released, including that he withheld Manafort’s side of that communication.
  • Whether Manafort discussed with Trump his strategy on how to entertain meetings with Putin without sending any public signs about it.
  • Whether, contrary to the account laid out in the HPSCI report, Manafort had a role in the defeat of an effort to make the RNC platform harsher on Ukraine, and if so, whether Manafort looped him in on it.
  • Whether Manafort, who had discussed campaign updates with the Russian oligarch at risk of sanctions to whom he owed millions, Oleg Deripaska, discussed ending sanctions on other Russian oligarchs.

Those are all damning enough. But the most damning question that we know Mueller wants to ask both Manafort and Trump is about the former’s outreach to Russia asking for help with the election. According to Sekulow, Mueller wants to know, “What knowledge did [Trump] have of any outreach by [his] campaign, including by Paul Manafort, to Russia about potential assistance to the campaign?”

Manafort knows the answer to that question.

Trump learned three months ago that Mueller had reason to believe Manafort had reached out to Russia for help and wanted to know if Manafort had shared details about that effort with Trump (or if Trump learned about it via some other means).

But at least two months before he formally learned that, Trump was telling his aides and friends that Manafort had information that could incriminate him.

The Crimes with which NSD Envisions Charging Those Attacking Elections

/14 Comments/in , , /by

The Senate Judiciary Committee had a hearing on how to protect our elections today. Among others, Deputy Assistant Attorney General Adam Hickey from DOJ’s National Security Division testified. He gave a list of some of the crimes he thought might be used to charge people who tampered with elections.

Foreign influence operations, though not always illegal, can implicate several U.S. Federal criminal statutes, including (but not limited to) 18 U.S.C. § 371 (conspiracy to defraud the United States); 18 U.S.C. § 951 (acting in the United States as an agent of a foreign government without prior notification to the Attorney General); 18 U.S.C. § 1001 (false statements); 18 U.S.C. § 1028A (aggravated identity theft); 18 U.S.C. § 1030 (computer fraud and abuse); 18 U.S.C. §§ 1343, 1344 (wire fraud and bank fraud); 18 U.S.C. § 1519 (destruction of evidence); 18 U.S.C. § 1546 (visa fraud); 22 U.S.C. § 618 (Foreign Agents Registration Act); and 52 U.S.C. §§ 30109, 30121 (soliciting or making foreign contributions to influence Federal elections, or donations to influence State or local elections).

In their testimony, Ken Wainstein (someone with extensive experience of national security prosecutions, but less apparent focus on the available evidence in this investigation) and Ryan Goodman (who doesn’t have the prosecutorial experience of Wainstein, but who is familiar with the public facts about the investigation) also list what crimes they think will get charged.

I find a comparison of what each raised, along with what has already been charged, to be instructive. I believe that comparison looks like this:

I’m interested, in part, because Hickey, who likely has at least a sense of the Mueller investigation (if not personal involvement), sees the case somewhat differently than two differently expert lawyers. Two charges — agent of a foreign power (basically, being a foreign spy in the US not working under official cover) and CFAA (hacking) seem obvious to both National Security Division prosecutors, but have not yet been publicly charged. Illegal foreign contributions seems obvious to those paying close attention, but also has not been charged. We might expect to see all three charges before we’re done.

Neither Wainstein nor Goodman mentioned false statements, but of course that’s what we’ve seen charged most often so far.

Then there are the two crimes Hickey mentions that the others don’t, but that have not yet been charged (both have been alleged as overt acts in the Internet Research Agency indictment): Visa fraud (alleged against the trolls who came to the US to reconnoiter in 2014) and destruction of evidence (again, alleged against IRA employees destroying evidence after Facebook’s role was discovered). Mueller also described George Papadopoulos destroying evidencec when he deleted his Facebook account, but like the Russian trolls, he didn’t get charged for it. Visa fraud, in particular, is something that multiple figures might be accused of — Alexander Torshin and others reaching out via NRA, Natalia Veselnitskaya, and even Brits who worked illegally during the election for Cambridge Analytica.

I confess I’m most interested in Hickey’s mention of destruction of evidence, though. That’s true, in part, because SDNY seems to think Michael Cohen might destroy evidence.

Hope Hicks, too, reportedly thought about hiding evidence from authorities. Then there’s the report that Mueller is checking encrypted messaging apps as people turn in phones when they arrive for interviews.

Huckey seems to think some of the people being investigated — beyond Papadopoulos and IRA troll Viktorovna Kaverzina — may have been destroying evidence.

I wonder if he has reason to suspect that.

Revisiting Trump’s Joint Defense Agreement

/17 Comments/in , /by

Betsy Woodruff has a story reminding us that Trump has a joint defense agreement with some of the other people caught up in Mueller’s probe.

The president’s personal lawyers have teamed up with attorneys for other individuals embroiled in special counsel Bob Mueller’s probe, multiple sources tell The Daily Beast. For a while, the president’s lawyers even had regular conference calls with other attorneys to discuss the Mueller investigation, according to one source familiar with the calls.

The arrangement is known as a joint defense agreement, and it allows the lawyers to share information—without violating attorney-client privilege. It’s a common strategy when multiple defendants are dealing with the same prosecutor on the same matter.

I say “reminding us,” because this is not news. When Mike Flynn flipped, the first notice came when he alerted this very same joint defense agreement he could no longer share information (as the story itself notes).

The story doesn’t even describe, generally, who is included in it, which might help observers understand the dynamics we’re watching. The closest hint of that is the observation that Paul Manafort might be going to jail on Friday.

This week is poised to be less-than-harmonious for at least one person in Mueller’s sights: Paul Manafort, who will appear in court on Friday for a hearing where a judge will decide whether or not to revoke his bail.

The article doesn’t even confirm that Manafort is part of the defense agreement. But Trump was bragging, back in January, that he had “decided that a key witness in the Russia probe, Paul Manafort, isn’t going to ‘flip’ and sell him out, friends and aides say.” That’s the kind of thing Trump might have assurance about if Manafort were part of a joint defense agreement, particularly if — as has subsequently been reported — John Dowd offered Manafort a pardon (through one of his lawyers, in the kind of discussion lawyers might assume were shielded by a joint defense agreement) last year.

The pardon discussion with Mr. Manafort’s attorney, Reginald J. Brown, came before his client was indicted in October on charges of money laundering and other financial crimes. Mr. Manafort, the former chairman of Mr. Trump’s presidential campaign, has pleaded not guilty and has told others he is not interested in a pardon because he believes he has done nothing wrong and the government overstepped its authority. Mr. Brown is no longer his lawyer.

Mind you, now we know that Mueller knows about such offers (because it’s one of the questions they posed to Trump in March). That makes Trump’s legal impunity for offering such pardons at least slightly more sketchy, particularly if he’s pardoning someone so obviously corrupt as Paul Manafort. Add in the fact that Jared Kushner sold out Flynn last fall (which is reportedly what led him to flip), and Manafort may be less certain about Trump’s reliability, even in spite of Trump’s Tweets suggesting FBI should have prevented him from hiring someone they were investigating back in 2016, posted — with remarkable prescience! — on the eve of the latest setback in Manafort’s case.

Still, the reminder that Trump and a number of subjects of this investigation have been comparing notes explains a lot we’ve seen since. It explains, for example, why Manafort has made such a diligent effort to get the court to disclose information to him– such as the substance of warrant affidavits to seize up to four other people’s AT&T phone information, or the other bullet points in Rod Rosenstein’s August 2, 2017 memo laying out the scope (at that point) of the investigation — that affects others likely covered by the defense agreement. It explains one advantage to Manafort of insisting on being charged in two jurisdictions: because it gives him two bites at an attempt to challenge Mueller’s jurisdiction.

The joint defense agreement also explains several other things we’ve seen, such as the coordinated messaging — particularly the planted narrative about Spygate — best explained by the coordination of Victoria Toensing armed with information only legally available to Trump.

Finally, it explains the delay in any charges related to the conspiracy between Trump and the Russians: once Mueller charges those issues, he will have to provide discovery about what he knows, which will then get shared back with others involved in the conspiracy. It appears he’s primarily sharing that information (aside from in the form of questions to witnesses who appear before the grand jury) with those who’ve flipped. Even the questions he has posed to Trump are probably sharply limited to hide the main thrust of the conspiracy investigation.

That’s why the stakes for Friday are so high (and the timing of this reminder that there’s a joint defense agreement). Mueller still won’t need to provide Manafort the evidence he has about his role in the conspiracy, though the indictment of Kilimnik gets far closer to that. But it raises the cost on Manafort for sustaining a joint defense, minimizes his value to the others, all while the crimes charged could still be refiled in a VA state court.

The Documents the White House Turned Over

/39 Comments/in /by

I wanted to pull this information, from the John Dowd’s letter to Robert Mueller, to lay out how the White House has categorized document requests from Mueller. Dowd boast the “Records voluntarily produced to your office by the White House total over 20,000 pages.” Here’s what those records like, arranged by Bates series.

The Flynn documents

The categories start with Flynn, including an astounding 2,572 pages related to Sean Spicer’s comments to the press on Jim Comey from May 3, 2017 (in the press briefing that day Spicer downplayed the threat Russia posed to the US).

  • FBI Interview of Michael Flynn at the White House on January 24, 2017 (SCR001), 9 documents, 66 pages;
  • Communications of DAG Sally Yates, DOJ, FBI, & WH regarding Michael Flynn (SCR002), 28 documents, 64 pages;
  • Communications between White House staff regarding the FBl’s investigation into Russian interference or James Comey (SCR003), 53 documents, 248 pages;
  • The resignation of Michael Flynn (SCR004), 311 documents, 762 pages;
  • Sean Spicer’s May 3, 2017, statements to the press regarding James Comey (SCR005), 445 documents, 2,572 pages;

The George Papadopoulos documents

There’s just one bullet point of communications pertaining to Papadopoulos. This list must reflect the list of those who might be of interest in the Russian inquiry. Note that Jeff Sessions is not included.

  • White House communications concerning campaign and transition communications between Manafort, Gates, Gordon, Kellogg, Page, Papadopoulos, Phares, Clovis and Schmitz (SCR006), 75 documents, 978 pages;

A second tranche of Mike Flynn documents

Then there are two more bullets of Mike Flynn documents, first seeking campaign and transition communications involving Russian Federation officials, and then seeking the 2,990 pages on the May 10, 2017 meeting with Sergei Lavrov. We should expect a ton of prep work in advance of such a meeting, so the number might not be that surprising. But it is the largest set of documents.

  • White House communications regarding campaign and transition communications between Michael Flynn and Sergey Kislyak or other Russian Federation officials (SCR007), 303 documents, 912 pages;
  • May 10, 2017, White House meeting with Russian Federation officials (SCR008), 808 documents, 2,990 pages;

The June 9 meeting documents

Only after those Flynn related comms did Mueller ask for June 9 meeting documents. They asked for three things: Documents pertaining to the June 9 meeting (note, this doesn’t include a request for the follow-up discussions in November). Then, a list of those who were involved in Don Jr’s press statements. Finally, all the comms from those people. The number of these documents is suspiciously small, particularly as compared to the volume turned over to SJC.

  • June 9, 2016, meeting between Donald Trump, Jr., and Natalia Veselnitskaya (SCR009), 117 documents, 1,821 pages;
  • July 8, 2017, Air Force One participants regarding Donald Trump, Jr., press statements concerning Veselnitskaya meeting (SCR010), 1 document, 1 page;
  • Communications of individuals identified in category number 10 (SCR011), 141 documents, 284 pages.

Jim Comey documents

Finally, there are documents pertaining to Jim Comey’s firing. This suggests Mueller didn’t ask for these documents until at least July 2017.

  • Meetings between the President and James Comey (SCR012), 109 documents, 725 pages;
  • The decision to terminate James Comey (SCR013), 442 documents, 1,455 pages;

What Got Added to Sekulow’s List: Further Obstruction (Including Consideration of Firing Mueller), and “Collusion”

/34 Comments/in , /by

As bmaz noted, the NYT just published the most batshit letter, written on January 29 by John Dowd and Jay Sekulow, trying to dodge testimony for Trump. Here’s what, according to Dowd and Sekulow, Mueller had told them on January 8 he wanted to ask about.

  1. Former National Security Advisor Lt. Gen. Michael Flynn — information regarding his contacts with Ambassador Kislyak about sanctions during the transition process;
  2. Lt. Gen. Flynn’s communications with Vice President Michael Pence regarding those contacts;
  3. Lt. Gen. Flynn’s interview with the FBI regarding the same;
  4. Then-Acting Attorney General Sally Yates coming to the White House to discuss same;
  5. The President’s meeting on February 14, 2017, with then-Director James Comey;
  6. Any other relevant information regarding former National Security Advisor Michael Flynn;
  7. The President’s awareness of and reaction to investigations by the FBI, the House and the Senate into possible collusion;
  8. The President’s reaction to Attorney General Jeff Sessions’ recusal from the Russia investigation;
  9. The President’s reaction to Former FBI Director James Comey’s testimony on March 20, 2017, before the House Intelligence Committee;
  10. Information related to conversations with intelligence officials generally regarding ongoing investigations;
  11. Information regarding who the President had had conversations with concerning Mr. Comey’s performance;
  12. Whether or not Mr. Comey’s May 3, 2017, testimony lead to his termination;
  13. Information regarding communications with Ambassador Kislyak, Minister Lavrov, and Lester Holt;
  14. The President’s reaction to the appointment of Robert Mueller as Special Counsel;
  15. The President’s interaction with Attorney General Sessions as it relates to the appointment of Special Counsel; and,
  16. The statement of July 8, 2017, concerning Donald Trump, Jr.’s meeting in Trump Tower.

On March 5, Trump’s lawyers had a heated meeting with Mueller’s team, where Mueller floated a subpoena. In the wake of that meeting, Mueller provided a new list of topics of interest, which resulted in the Sekulow list leaked a month ago.

In the wake of the testy March 5 meeting, Mueller’s team agreed to provide the president’s lawyers with more specific information about the subjects that prosecutors wished to discuss with the president. With those details in hand, Trump lawyer Jay Sekulow compiled a list of 49 questions that the team believed the president would be asked,

Here’s that list, as presented by the NYT (there are fewer than the 49 described by the NYT because of how they combined questions). I’ve bolded the ones that appear to be entirely new in the later list.

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

The additions are instructive. The one new bit on Flynn involves Trump’s offer of a pardon.

The new bits on obstruction pertain to ongoing efforts to obstruct the investigation, including consideration of firing Mueller and ongoing efforts to discredit Jim Comey and Andrew McCabe.

But the most interesting are the 14 or so questions on Trump’s involvement in and awareness of election tampering. Given the timing of Rick Gates’ plea on February 23 and the subsequent focus on Roger Stone and Michael Cohen, I’m particularly interested in the addition of questions involving both of them (as well as the question about Manafort’s efforts to get Russia’s help).

Trump would have been far better off having an interview in January. Because the questions are getting harder — and Mueller’s interest in his involvement in “collusion” is getting more apparent.

How the Mueller Team Thinks of ConFraudUs

/37 Comments/in , /by

I’ve written before how I think Conspiracy to Defraud the United States (ConFraudUs) provides Mueller a way to charge a variety of conduct with conspiracy charges that additional defendants can be dropped into, all of which might form an interlocking series of ConFraudUs indictments that map out the entire election crime. In this post, I observed how the charge worked in the Manafort and Internet Research Agency indictments. In this one, I described how it might work to charge Jared (and everyone else) for pretending to be serving US foreign policy interests while actually making bank.

In response to a challenge from Concord Consulting in the IRA indictment, the Mueller team has laid out how they think of ConFraudUs. The filing hints at how and why they may be using this as a backbone for their pursuit of the 2016 election tampering culprits.

In a blustery motion claiming that Mueller only charged Concord with ConFraudUs because he needed to charge some Russians, any Russians, to justify his appointment, Concord demanded access to the grand jury instructions on the ConFraudUs charge, claiming that the charge requires willfulness. (Click through to read the footnotes here, which include a gratuitous Casablanca reference and complaints about US tampering in elections.)

Now, some twenty years later, the Deputy Attorney General acting for the recused Attorney General has rejected the history and integrity of the DOJ, and instead licensed a Special Counsel who for all practical political purposes cannot be fired, to indict a case that has absolutely nothing to do with any links or coordination between any candidate and the Russian Government.2 The reason is obvious, and is political: to justify his own existence the Special Counsel has to indict a Russian – any Russian. 3 Different from any election case previously brought by the DOJ, the Special Counsel used the catch-all provision of the federal criminal code, the defraud prong of conspiracy, 18 U.S.C. § 371, to allege that a foreign corporate defendant with no presence in the United States and having never entered the United States, engaged in the make-believe crime of conspiring to “interfere” in a United States election. Indictment, Dkt. 1, ¶ 2. Presumably to bolster these allegations (which have a strong odor of hypocrisy) 4 , the Special Counsel has pleaded around the knowledge requirements of all related substantive statutes and regulations by asserting that Concord conspired to obstruct the functions of the United States Departments of Justice (“DOJ”) and State (“DOS”), and the Federal Election Commission (“FEC”).5 But violations of the relevant federal campaign laws and foreign agent registration requirements administered by the DOJ and the FEC require the defendant to have acted “willfully,” a word that does not appear anywhere in Count One of the Indictment. See 52 U.S.C. § 30109(d) and 22 U.S.C. § 618(a).6

Violations of the federal campaign laws and foreign agent registration … require the defendant to have acted “willfully,” say the Russians who trolled our election.

That’s true, Mueller concedes.

Then points out they haven’t charged those underlying crimes. They’ve just charged ConFraudUs. And the standard for ConFraudUs is “intent to defraud the US;” there’s no “willfullness” standard required.

As an initial matter, the government agrees that the plain language of the statutory provisions Concord Management has identified in the Federal Election Campaign Act, 52 U.S.C. § 30109(d), and the Foreign Agent Registration Act 22 U.S.C. § 618(a), set forth a “willfulness” standard with respect to knowledge. The government, however, did not charge Concord Management with substantive violations of FECA, FARA, or for that matter, visa fraud — an offense that requires only a “knowing” standard. See 18 U.S.C. § 1546. Concord Management is alleged to have conspired to defraud the United States, in violation of 18 U.S.C. § 371. As described in more detail below, the mens rea for that offense is intent to defraud the United States, not to willfully commit substantive offenses that are not charged in the Indictment

Which brings them to where they lay out precisely what ConFraudUs requires:

The essential elements of a conspiracy to defraud the United States consist of the following: (1) two or more persons formed an agreement to defraud the United States; (2) the defendant knowingly participated in the conspiracy with the intent to defraud the United States; and (3) at least one overt act was committed in furtherance of the common scheme. See United States v. Treadwell, 760 F.2d 327, 333 (D.C. Cir. 1985); United States v. Coplan, 703 F.3d 46, 61 (2d Cir. 2012), cert. denied, 571 U.S. 819 (2013). The agreement to defraud must be one to obstruct a lawful function of the Government or its agencies by deceitful or dishonest means. Coplan, 703 F.3d at 60–61; see United States v. Davis, 863 F.3d 894, 901 (D.C. Cir. 2017) (explaining that a charge under the defraud clause requires proof that a defendant “knowingly agreed with [the codefendant] (or another person) to defraud the federal government of money or to deceptively interfere with the lawful functions of” a particular government agency). The mens rea is a specific intent to defraud the United States, not willfulness. See United States v. Khalife, 106 F.3d 1300, 1303 (6th Cir. 1997), cert. denied, 522 U.S. 1045 (1998); United States v. Jackson, 33 F.3d 866, 871–72 (7th Cir. 1994), cert. denied, 514 U.S. 1005 (1995). The mens rea requirements of particular substantive crimes, in short, do not carry over to defraud-clause prosecutions. See, e.g., Jackson, 33 F.3d at 870–72 (government need not establish the level of willfulness required to prove a “structuring” offense when it charges the same behavior as a conspiracy to defraud); Khalife, 106 F.3d at 1303 (same).4

So,

(1) two or more persons formed an agreement to defraud the United States;

(2) [each] defendant knowingly participated in the conspiracy with the intent to defraud the United States; and

(3) at least one overt act was committed in furtherance of the common scheme.

Basically, the Mueller team argues, Concord and all its trolls only have to agree to pull a fast one on the American electoral regulatory apparatus, with at least one overt act like … a trollish tweet. They don’t have to individually willfully violate the underlying law.

We’ll see what Judge Dabney Friedrich has to say about this argument (though as far as I understand it, the Mueller argument is not at all controversial). As a reminder, Rick Gates has already pled guilty to this charge.

However Friedrich rules, however, you can how this would apply to a number of other known actions. Did Don Jr conspire with Aras Agalarov and his surrogates to defraud the fair management of elections when he stated, in the context of receiving dirt on Hillary Clinton, that he would revisit the Magnitsky Act sanctions when his father won the election (several witnesses gave sworn testimony that this happened)? Did Roger Stone conspire with Guccifer 2.0 when they (as reported but not yet substantiated with evidence) discussed how to find Russian hackers who had stolen Hillary’s emails? Did Brad Parscale conspire with Cambridge Analytica, not just to permit foreigners to illegally provide assistance to the Trump campaign, but also to use stolen models to heighten discontent among Democratic voters?

Importantly, Mueller would not have to prove that all participants in all these conspiracies had the mens rea required by the underlying charges. It’s enough that they’re trying to deceitfully thwart the lawful functioning of a government process.

Obviously, Mueller hasn’t yet charged any of these ConFraudUs conspiracies, if indeed they happened. But you can see why he might use ConFraudUs to do so.