In an analysis piece earlier this week, the NYT reported as newsworthy that,
Over the weekend, Mr. Trump also dangled, for the first time, that he could issue pardons to anyone facing charges for participating in the Jan. 6 attack if he is elected president again — the latest example of a yearslong flirtation with political violence.
Politico followed that with a report that Trump at least considered blanket pardons for those who might be implicated in January 6.
“Is it everybody that had a Trump sign or everybody who walked into the Capitol” who could be pardoned? Trump asked, according to that adviser. “He said, ‘Some people think I should pardon them.’ He thought if he could do it, these people would never have to testify or be deposed.”
Offering preemptive pardons is not a new idea for Trump. According to Michael Cohen, Trump also entertained bulk pardons with the Russian investigation before Jay Sekulow figured out that it would make it easier for people to testify against him.
Q What is – you had a conversation with Jay Sekulow about something called a pre-pardon?
A Yes.
Q How many conversations did you have with him about pre-pardoning
A One or two.
Q And what did he say to you?
A The problem with a pre-pardon is that you have to answer every question because technically you have immunity, so you can’t assert any Fifth Amendment privilege.
Q Let’s back up for a second, because that presupposes that you’ve already discussed the idea of you getting a pardon. Did Jay Sekulow tell you that the President was considering giving you a pardon?
A That’s not the way that he stated it, but we had a conversation, one at least – I believe it may have been two – and I am not 100 percent certain of the exact date that that occurred, but the concept of a pre-pardon was discussed, yes.
Q Okay. So if you said that’s not exactly how he said it, what do you remember him saying about the idea of you getting a pardon?
A Well, it wasn’t just me. It was globally, in order to, I guess, shut down, you know, this investigation. And I had said to him, you know, what .. well, you know, there’s always the possibility of a pre-pardon. And –
Q Let’s take your time, because it’s important for us to understand not just the gist of the conversation but who said what exactly. All right? So you mentioned something called a global pardon. Did he use that term?
A No.
Q Okay. What do you mean by a global pardon?
A Okay. That in order to shut this whole thing down, that this is how they were potentially going to do it, and everybody would just get a pardon. And said, well, it wouldn’t be a pardon, it would be a pre-pardon, because nobody’s been charged yet. So it ultimately just became, that’s not really something that could be accomplished, because then they’d have the right, again, to ask you questions, everyone on the team.
Q So when you say everyone, who do you mean?
A I guess whoever it is that you started to request to come in, testify, subpoenaed.
It is the case that Trump has now dangled pardons at a time he doesn’t have the power to grant them. Even that is not new, though, given that Roger Stone was brokering a Julian Assange pardon no later than November 15, 2016 and probably starting even before the election, in October 2016.
This latest dangle is more newsworthy, though — and for reporters who don’t want to enable Trump’s authoritarian power, ought to be reported as — an attempt to reclaim power he already lost after reneging on promises of pardons made while he still had the power to grant them.
It is not news that Trump used pardon dangles as one tool to attempt a coup on January 6. At least five people directly involved in the coup attempt benefitted from pardons, some awarded at key times in the planning process, with Steve Bannon’s issued at the last possible moment.
It is not news that Trump is making pardon dangles publicly to try to bend the will and buy the silence of others. This latest pardon dangle comes in the wake of five events, all of which pose a direct threat to Trump:
December 15: The Select Committee contempt referral for Mark Meadows that puts him at risk of Presidential Records Act and obstruction prosecution
January 19: SCOTUS’ refusal to reverse the DC Circuit order allowing the Archives to share Trump records
January 19: The delivery to prosecutors, on January 19, of a large number of texts and messages from Rudy Giuliani’s phones
January 20: The Select Committee request for Ivanka’s testimony, which strongly suggested she has violated the Presidential Records Act
January 21: The report from Sidney Powell’s attorney that she is “cooperating” in her own prosecution and the Select Committee
What’s newsworthy is that Trump is trying this tack after reneging on promises to three of the people involved (during the last days of his Administration, there were reports that Meadows, Rudy, and Ivanka all might receive pardons) that Trump made in the course of planning for the coup.
So I’d like to tell the story of five pardons — three granted, and two withheld — in the context of Trump’s attempted coup on January 6.
Michael Cohen pardon dangle
This first pardon necessary to understand what Trump is up to is one that didn’t happen: The pardon dangle to try to silence Michael Cohen. As the Mueller Report described. in the wake of a raid on Cohen, Robert Costello started reaching out as an envoy for Rudy Giuliani, offering pardons.
On or about April 17, 2018, Cohen began speaking with an attorney, Robert Costello, who had a close relationship with Rudolph Giuliani, one of the President’s personal lawyers. 1022 Costello told Cohen that he had a “back channel of communication” to Giuliani, and that Giuliani had said the “channel” was “crucial” and “must be maintained.” 1023 On April 20, 2018, the New York Times published an article about the President’s relationship with and treatment of Cohen. 1024 The President responded with a series of tweets predicting that Cohen would not ” flip” :
The New York Times and a third rate reporter . . . are going out of their way to destroy Michael Cohen and his relationship with me in the hope that he will ‘flip. ‘ They use nonexistent ‘sources’ and a drunk/drugged up loser who hates Michael, a fine person with a wonderful family. Michael is a businessman for his own account/lawyer who I have always liked & respected. Most people will flip if the Government lets them out of trouble, even if it means lying or making up stories. Sorry, I don’t see Michael doing that despite the horrible Witch Hunt and the dishonest media! 1025
In an email that day to Cohen, Costello wrote that he had spoken with Giuliani. 1026 Costello told Cohen the conversation was “Very Very Positive[.] You are ‘loved’ … they are in our corner … . Sleep well tonight[], you have friends in high places.”1027
According to Cohen, Rudy Giuliani and Robert Costello were at the heart of Trump’s efforts to buy silence.
But Cohen couldn’t be silent about his own plight, and so facing prosecution from that and after a privilege review of his files discovered the recording Cohen made of Trump’s hush payments, he started cooperating with Mueller, helping them to understand what Trump was trying to hide about his ties with the Kremlin during the election.
Cohen paid for that decision, too. He did more time, for example, than Roger Stone, who (like Cohen) had kept blackmail material on Trump. As such, Cohen served as a useful example to Trump: if you cooperated against Trump, Trump would ensure that you suffered a worse outcome than those who had sustained the lies to protect him.
Roger Stone commutation
Roger Stone kept a notebook recording every conversation he had with Donald Trump during the 2016 election. After the election, according to an unreliable October 2018 interview that Steve Bannon had with Mueller’s team, Stone got a meeting to which he brought what appears to be that notebook. Trump asked Bannon to attend, it seems, to ensure that Stone would be kicked out after a short time.
While BANNON was at Breitbart in 2013-2015, BANNON had a strong relationship with [redacted]. BANNON heard from [redacted] STONE was still talking to Trump and was an advisor. STONE subsequently made those statements to BANNON as well. BANNON was suspect and upset. BANNON believed you had to eep TRUMP “on program.” While BANNON was on the Trump Campaign he never heard any mention of STONE from TRUMP or anyone else on the campaign. After the win, STONE tried a full court press in order to get a meeting with TRUMP. [redacted] eventually set up a meeting with TRUMP and STONE in early December 2016 on the 26th floor of Trump Tower. TRUMP didn’t want to take the meeting with STONE. TRUMP told BANNON to be in the meeting and that after 5 minutes, if the meeting hadn’t concluded, to throw STONE out. STONE came in with a book he wrote and possibly had a folder and notes. [full sentence redacted] TRUMP didn’t say much to STONE beyond “Thanks, thanks a lot.”. To BANNON, this reinforced STONE [redacted] After five to six minutes, the meeting was over and STONE was out. STONE was [redacted] due to the fact that during the meeting TRUMP just stared.
That was Bannon’s second-to-last interview with Mueller’s team. A week after his last interview, at which Bannon also appeared before the grand jury, the FBI raided Stone’s homes. One of the things they explicitly looked for was that notebook.
53. On May 8, 2018, a law enforcement interview of [redacted] was conducted. [redacted] was an employee of Stone’s from approximately June 2016 through approximately December 2016 and resided in Stone’s previous New York apartment for a period of time. [redacted] provided information technology support for Stone, but was not f0rmally trained to do so. [redacted] was aware that Stone communicated with Trump during the 2016 presidential campaign, and afterward, both in person and by telephone. [redated] provided information about a meeting at Trump Tower between Trump and Stone during the time [redacted] worked for him, to which Sterne carried a “file booklet” with him. Stone told [redacted] the file booklet was important and that no one should touch it. [redacted] also said Stone maintained the file booklet in his closet.
54. On December 3, 2018, law enforcement conducted an interview of an individual (“Person 1 “) who previously had a professional relationship with a reporter who provided Person 1 with information about Stone. The reporter relayed to Person 1 that in or around January and February 2016, Stone and Trump were in constant communication and that Stone kept contemporaneous notes of the conversations. Stone’s purpose in keeping notes was to later provide a “post mortem of what went wrong.”
In November 2019, Stone was convicted for lying about the nature and Trump’s awareness of his back-channel to the Russian operation. Billy Barr went to extraordinary lengths to attempt to minimize the punishment Stone would suffer for covering that up. He went so far as claiming threats against a federal judge by Roger Stone and the Proud Boys, threats which foreshadowed January 6, were a mere technicality.
But in July 2020, the moment when Stone would have to report to prison approached. Stone made several public appearances telling a story that was impossible as told, the gist of which was that prosecutors had promised Stone they would fight for leniency if he would testify about the content of a subset of the conversations he had with Trump during the election. That had the desired effect: Trump commuted Stone’s sentence before he reported for prison, protecting Stone in a way he had not done for Paul Manafort.
Billy Barr minimized the damage this should have done to Trump’s electoral chances. The Attorney General sat on a footnote of the Mueller Report that revealed when all this occurred, Roger Stone was still under investigation for the hack-and-leak with Russia. Barr released that literally on the eve of the 2020 election, and to this day no major outlet has reported that Stone was still under investigation for conspiring with Russia after the Mueller Report was released.
Mike Flynn pardon
As I laid out in this post, Mike Flynn got next to nothing out of his his two year attempt to renege on his plea agreement with Robert Mueller.
Replaced competent lawyers with incompetent TV grifters
Released evidence he lied to his lawyers doing the FARA filing
Consented to waive privilege so DOJ could find more proof he lied
Debunked a slew of conspiracy theories
Got really damning transcripts released
Served 708 days of supervised release
Joined a gang
Got one of his gang members prosecuted for death threats against Judge Sullivan
Got a ruling — and, later, a clear statement from DOJ — that no abuse occurred
Exposed his son to further prosecution
Exposed DOJ to further scrutiny
Proved Judge Sullivan’s point about selling the country out
After 18 months of making repeatedly debunked claims that he had been victimized by DOJ, however, he did get the most expansive pardon Trump gave, one pardoning not just his underlying crimes, but also the crimes he committed during the process of performing that victimization.
Given everything that has happened since, it’s worth considering Flynn’s performance as a victim as part of Trump’s reelection campaign.
That became most evident on September 29, 2020. Earlier in the day, in a status hearing, Sidney Powell confessed that weeks earlier, she had spoken to Trump about the case, and asked him not to pardon Flynn.
More curious still, she admitted she had spoken with Trump’s campaign attorney, Jenna Ellis.
THE COURT: Let me ask you this before you get to your other objections since we’re talking about — since I raised the issue about communications and correspondence with the Department of Justice. Have you had discussions with the President about this case?
MS. POWELL: I have not, Your Honor, while the case was pending pre-motion to dismiss or otherwise other than an update as to what happened in it.
THE COURT: I’m sorry. I’m not sure I understand your answer. The question is whether you’ve had any discussions at all with the President of the United States about Mr. Flynn and about this case. Yes or no.
MS. POWELL: I’m sorry, Your Honor. I can’t discuss that.
THE COURT: What’s the reason why you can’t discuss that?
MS. POWELL: I would think any conversations that I had with the President would be protected by executive privilege.
THE COURT: Well, you don’t work for the government.
MS. POWELL: I don’t think the executive privilege is limited to people who work for the government.
THE COURT: So you’re purporting to invoke executive privilege not to answer the Court’s question about whether you discussed Mr. Flynn’s case with the President of the United States. Is that correct?
MS. POWELL: Yes. Other than the fact that after the government moved to dismiss or at some point in the last month or so, I provided the White House an update on the overall status of the litigation.
THE COURT: How did you provide that update? Was it in writing?
MS. POWELL: No, sir.
THE COURT: How did you provide that update? Who did you speak with?
MS. POWELL: I provided it in person to counsel for the President.
THE COURT: I mean the White House counsel or a deputy or who did you speak to?
MS. POWELL: Your Honor, I spoke with Jenna [Ellis] and I spoke with the President himself to provide a brief update of the status of the litigation within the last couple of weeks.
THE COURT: And did you make any request of the President?
MS. POWELL: No, sir. Other than he not issue a pardon.
THE COURT: All right. Prior to that discussion with the President — how many discussions with the President have you had about this case?
MS. POWELL: That’s the only one I recall.
THE COURT: So you’re not ruling out other — well, certainly, you would recall a discussion with the President of the United States, wouldn’t you?
MS. POWELL: Well, I’ve had a number of discussions with the President of the United States. I think the New York Times reported I’ve had five. So it seems like they probably have a number better than I know.
THE COURT: Are the New York Times’ representations erroneous?
MS. POWELL: I couldn’t tell you the number of times I’ve actually spoken with the President, Your Honor.
THE COURT: All right. About this case. But there’s been more than one though.
MS. POWELL: No, sir. I can tell you I spoke with one time to the President about this case to inform him of the general status of the litigation.
THE COURT: And was that within the last two weeks?
MS. POWELL: Time has a way of getting by for me, but it’s certainly well after the government moved to dismiss and probably if I recall correctly after the writ of mandamus was entered.
THE COURT: All right. Did you ever ask the President of the United States to request his Attorney General to appoint more attorneys in this case?
MS. POWELL: Oh, heavens, no.
THE COURT: All right. So very succinctly just so I have a clear understanding, what precisely — during the first time you spoke with the President of the United States, what precisely did you ask him to do in connection with this case? What did you ask him to do in connection with this case?
MS. POWELL: I never discussed this case with the President until recently when I asked him not to issue a pardon and gave him the general update of the status of the litigation. [my emphasis]
On the same day Powell admitted to speaking, some weeks earlier, to Trump’s campaign attorney Jenna Ellis, Trump delivered a pre-arranged attack against Joe Biden in the first debate.
President Donald J. Trump: (01:02:22)
We’ve caught them all. We’ve got it all on tape. We’ve caught them all. And by the way, you gave the idea for the Logan Act against General Flynn. You better take a look at that, because we caught you in a sense, and President Obama was sitting in the office.
This false claim was based off misrepresentations based on altered Peter Strzok notes released as part of Bill Barr’s efforts to reverse the prosecution of Flynn. There were other altered documents released for wider dissemination in this period, as well, including additional Strzok and Page texts that newly violated the Privacy Act, though after DOJ had to confess that they had altered those documents, any further focus on the altered documents were dropped.
And then, Trump pardoned his Agent of Turkey along with the Thanksgiving bird.
At the moment Trump would have informed Sidney Powell of that news, she was at Lin Wood’s plantation plotting ways to steal the election Trump had lost. If Flynn was not already with Powell plotting away at the moment he learned of his pardon, he would join her within 24 hours.
Within weeks, the recently-pardoned retired General and foreign agent that had been plotting away with Sidney Powell and Patrick Byrne, someone who had been seduced by an admitted Russian agent, was calling for military intervention. Flynn’s calls for insurrection were reported in real time, but the news was buried and the fact that Trump had just pardoned the man calling for a coup did not make the coverage.
Roger Stone pardon
During the first half of December, Roger Stone was palling around with the accused terrorists who would help physically obstruct the vote certification on January 6.
Days later, one of the Oath Keepers that Stone palled around with, Kelly Meggs, bragged of arranging an alliance with other accused terrorists that Stone also palled around with, the Proud Boys that Trump had told to “Stand Back and Stand By” in that same debate on September 29 where Trump had used a campaign attack packaged up by Sidney Powell.
On December 23, Trump pardoned Stone for the crimes of which he was convicted (but not those that were still under investigation).
On Christmas, Meggs specifically tied protection, almost certainly of Stone, and coordination with a Proud Boy, almost certainly Enrique Tarrio, in the same text.
On December 26, Stone associate Kelly Meggs called this an insurrection (albeit in response to Trump’s order) explicitly.
On December 27, Stone went to Mar-a-Lago to thank Trump for the pardon directly and to discuss how he would “ensure that Donald Trump continues as our president.”
Stone wrote that he counseled the president on how he could “ensure that Donald Trump continues as our president.”
[snip]
Stone said via text that he deleted the words and images after he was notified the golf club has “a policy of prohibiting photos of club members or guests out of respect for their privacy.” He said he didn’t have any additional comment.
A photo posted and then removed from Roger Stone’s Parler social media page shows President Donald Trump, left, Kimberly Guilfoyle, an unidentified man and Roger Stone at the Trump International Golf Club in West Palm Beach on Sunday.
“I thanked President Trump in person tonight for pardoning me,” he wrote. “I also told the president exactly how he can appoint a special counsel with full subpoena power to ensure that those who are attempting to steal the 2020 election through voter fraud are charged and convicted and to ensure that Donald Trump continues as our president #StopTheSteal #rogerstonedidnothingwrong.”
The next day, Stone deleted the pictures of his face-to-face meeting with Trump.
On January 5 and 6, Stone continued to interact closely with the Oath Keepers (and some Proud Boys). The morning of the insurrection, one of the Oath Keepers since charged with sedition, Joshua James, checked in with the operational leader for the Oath Keepers that day every time that someone — almost certainly Stone — moved.
Two days after the insurrection, Kristin Davis tweeted out a picture of Stone signing his pardon paperwork. (h/t gal_suburban)
Stone never hid it: His pardon was directly tied to his efforts to keep Trump in power. Given that Stone’s pardon was not as expansive as Flynn’s, he remains at some legal exposure for prosecution for his later efforts (including his June 2017 efforts to shut down the investigation into Julian Assange), so he had a real incentive to do anything he could to keep Trump in power.
Steve Bannon
Three days after Trump lost the election, Steve Bannon — in planning for an illegal second Trump term — threatened to assassinate Chris Wray and Anthony Fauci. The same day, his very competent lawyer, Bill Burck (the guy who got him through a bunch of serial lies in the Mueller investigation), fired him as a client, even as he was facing fraud charges for cheating Trump’s rubes.
It wasn’t until December 11, well into the plotting for a coup, that Robert Costello — the very same lawyer who dangled a pardon to Michael Cohen over two years earlier — noticed his appearance. Costello’s representation of Bannon also meant that the same lawyer represented both Rudy and Bannon, two of the masterminds in the Willard War Room.
December 11, when Costello formally filed as Bannon’s lawyer, is around the same time, according to Dustin Stockton and Jennifer Lawrence, that Paul Gosar’s Chief of Staff tied a pardon for their own involvement in Bannon’s fraud to their efforts to overturn the election results.
In December 2020, as the tour rolled around the country, Stockton and Lawrence say they got a call from Rep. Paul Gosar (R-Ariz.) and his chief of staff, Thomas Van Flein. According to Stockton, Van Flein claimed he and the congressman had just met with Trump, who was considering giving them a “blanket pardon” to address the “We Build the Wall” investigation.
“We were just in the Oval Office speaking about pardons and your names came up,” Van Flein allegedly said. Van Flein did not respond to a request for comment.
Gosar suggested the bus tour was helping Stockton and Lawrence build support for a pardon from the caucus and Trump. “Keep up the good work,” Gosar said, according to Stockton. “Everybody’s seen what you’re doing.”
So it was probably assumed that, so long as Bannon kept helping Trump try to steal the election, he would would get a pardon. That was true even though Roger Stone made it clear after his trial that Bannon had testified in the grand jury against him.
But on the last day, among the very last pardons Trump granted, Trump pardoned Bannon not just for the crimes he had already been charged with, but any others that might arise from the Build the Wall project federally.
Rudy Giuliani left dangling
Almost three years after Rudy started helping Trump out of his legal troubles, in part by shamelessly dangling pardons to (at least) Cohen and Paul Manafort, Rudy got nothing. He got no pardon even though he was represented by Robert Costello, who had started the pardon dangles with him. He got no pardon even after working relentlessly — and exposing himself to further criminal exposure — trying to help Trump steal an election. Rudy got nothing, even though it was known that Barr had failed in his efforts to kill the Ukraine influence peddling investigation into Rudy.
While there had been abundant discussion of pardoning people who weren’t yet charged in early 2021, after Trump’s coup attempt, that plan was scotched.
It might not have happened in any case, given the conclusion Jay Sekulow had come to years earlier, the preemptive pardons make witnesses more likely to testify against Trump.
But because of the insurrection, Pat Cipollone got a lot more involved in pardons. And the insurrection made it virtually impossible to pardon the mastermind of the insurrection, Rudy Giuliani, even while making it all the more important to find a way to keep Rudy silent.
Ten days after (we now know) SDNY first obtained a warrant targeting Rudy Giuliani in the investigation used to justify seizing all his phones, Rudy boasted that he had “very, very good insurance.” Rudy certainly believed Trump would protect him.
But he didn’t.
That’s the angle through which Trump’s latest attempt to dangle pardons should be viewed. Rudy may be the most important person Trump needs to silence. But Trump had a chance to pardon Rudy when he had the authority, and he failed to do so.
Update: Added the SCOTUS decision to the list of things that must have Trump worried. h/t Brian Pillion
https://www.emptywheel.net/wp-content/uploads/2022/02/Stone-a-Guilfoyle.jpeg422415emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2022-02-03 09:51:172022-02-03 15:00:23Trump’s Coup Attempts: A Tale of Five Pardon Dangles
In Patrick Byrne’s February 1, 2021 telling of a series of December 18, 2020 meetings that was just retold by the NYT, Sidney Powell — who is currently under grand jury investigation — told Rudy Giuliani — who is currently under grand jury investigation– that she hadn’t been leaving him out of the loop. On the contrary, Powell explained as she tried to convince Rudy and with him the former President to adopt the plan she and Mike Flynn concocted to seize the voting machines, Powell had sent Rudy this information via email and text.
Finally, Trump stopped and scanned the three of us, and asked simply. “So what are you saying?” Thinking of the difference between the highly organized and disciplined approach I had experienced with Flynn and Sidney, versus the college sophomore bull-session approach of the Campaign and Rudy-World, I spoke up again: “Mr. President, I think you should appoint Sidney Powell your Special Counsel on these election matters and make General Flynn your Field Marshall over the whole effort. I know Rudy’s your lawyer and friend, and he can have a great role in this. Rudy should be personally advising you, and we don’t want to do anything to embarrass him. But it needs to be Sidney taking point legally on this. And if you really want to win, make General Flynn here the Field Marshall. If you do I put your chances at around 50-75%. You should see how he well he has this planned, it would run like clockwork…”
The President shook me off, saying, “No no, it’s got to be Rudy.”
[snip]
The three male [White House Counsel] lawyers edged closer to the front, and then as though as some hidden signal, they all started being bitches.
First was some comment about it not being right to use the National Guard. “The optics are terrible, Mr. President,” said one. “It would have to be the DHS.” I liked the National Guard idea because we needed to reestablish trust of the American people in the electoral process, and the US institution with the most trust is the one where people dress in military uniforms. Yet the National Guard is local, they are all around us, our colleagues at work, our “Citizen Soldiers”. But perhaps in a sign of flexibility, Flynn and Sidney allowed as how one could use the DHS instead of the National Guard.
[snip]
I took another shot at it with the President. “Again Sir, I know that Rudy is a friend of yours, he’s wonderful. He’s America’s Mayor. I love Rudy, I don’t want to embarrass him. But you should see how what Mike and Sidney have got going. It is so organized, so well-planned-” Again he cut me off, saying, “No no, it’s got to be Rudy…” On the inside I slumped.
[snip]
Eventually President Trump said that we would all meet in 30 minutes in the living quarters, in the “Yellow Oval” (I believe the room is called). In the meantime, Rudy was coming in and we had to find a way to make things work between Rudy and Sidney. As we parted he said, “You know, in 200 years there probably has not been a meeting in this room like what just happened…”. As he was leaving he brushed past me, stopped, and speaking low and quiet, said something quite kind and meaningful, showing me that he knew a lot more about me than I had guessed.
A few minutes later Sidney, Mike, Alyssa, and I were in the Cabinet Room. waiting for Rudy. It was dark, and we had to find a couple lamps to turn on. Mike and I were intent on making sure the meeting went well between Sidney and Rudy, so everyone could work happily together.
After 10 minutes Rudy came in, tying his tie, and said in not too gruff a manner, but with perhaps the gruffness of a man disturbed from his evening meal, “You know Sidney, if we are going to work together you have to share information.” I did not take his tone as being too aggressive, but one of trying to turn over a new leaf in a relationship, perhaps.
Sidney immediately told him, “I do share information Rudy. You never read your emails, you never read your texts.”
“That’s not true Sidney! I just need you to stop keeping me in the dark-“
“”Rudy I don’t keepo [sic] you in the dark! You-”
“Sidney you have to stop keeping everything to yourself! I cannot work with you if you don’t share with me!”
Within moments the conversation had spiraled out of control. After a minute of squabbling I tried to interject something helpful. “Mr. Mayor, it is true that since I arrived, everything we ever brought Sidney, she always said, ‘Get this to Rudy right away.’ It’s true. Absolutely everything we turned up, she told us to share with you. She never asked us to keep you in the dark about anything.” [my emphasis]
Six weeks after Election Day, with his hold on power slipping, President Donald J. Trump directed his lawyer, Rudolph W. Giuliani, to make a remarkable call. Mr. Trump wanted him to ask the Department of Homeland Security if it could legally take control of voting machines in key swing states, three people familiar with the matter said.
Mr. Giuliani did so, calling the department’s acting deputy secretary, who said he lacked the authority to audit or impound the machines.
Mr. Trump pressed Mr. Giuliani to make that inquiry after rejecting a separate effort by his outside advisers to have the Pentagon take control of the machines. And the outreach to the Department of Homeland Security came not long after Mr. Trump, in an Oval Office meeting with Attorney General William P. Barr, raised the possibility of whether the Justice Department could seize the machines, a previously undisclosed suggestion that Mr. Barr immediately shot down.
[snip]
Mr. Giuliani was vehemently opposed to the idea of the military taking part in the seizure of machines, according to two people familiar with the matter. The conflict between him and his legal team, and Mr. Flynn, Ms. Powell and Mr. Byrne came to a dramatic head on Dec. 18, 2020, during a meeting with Mr. Trump in the Oval Office.
At the meeting, Mr. Flynn and Ms. Powell presented Mr. Trump with a copy of the draft executive order authorizing the military to oversee the seizure of machines. After reading it, Mr. Trump summoned Mr. Giuliani to the Oval Office, according to one person familiar with the matter. When Mr. Giuliani read the draft order, he told Mr. Trump that the military could be used only if there was clear-cut evidence of foreign interference in the election.
Ms. Powell, who had spent the past month filing lawsuits claiming that China and other countries had hacked into voting machines, said she had such evidence, the person said. But Mr. Giuliani was adamant that the military should not be mobilized, the person said, and Mr. Trump ultimately heeded his advice.
Shortly after the Oval Office meeting, Mr. Waldron amended the draft executive order, suggesting that if the Defense Department could not oversee the seizure of machines then the Department of Homeland Security could, the person said.
Around that time, Mr. Trump asked Mr. Giuliani to call Kenneth T. Cuccinelli II, the acting deputy secretary at the Department of Homeland Security, to ask about the viability of the proposal, according to two people familiar with the matter. Mr. Cuccinelli said that homeland security officials could not take part in the plan.
[snip]
Even Mr. Giuliani, who had spent weeks peddling some of the most outrageous claims about election fraud, felt that the idea of bringing in the military was beyond the pale.
After Mr. Flynn and Ms. Powell left the Oval Office, according to a person familiar with the matter, Mr. Giuliani predicted that the plans they were proposing were going to get Mr. Trump impeached. [my emphasis]
Reached earlier this month, Cuccinelli said his discussion with Giuliani “never developed to the point of talking about an executive order including such action that I recall.”
When asked about the executive order involving the military, Giuliani’s attorney, Robert Costello, said his client also shut that idea down when he became aware of it.
“As soon as he heard about this idea, he was vehemently against it, as was White House Counsel Pat Cipollone and then-President Trump,” Costello said.
But Giuliani and his team did continue to pursue other avenues for overturning the election based on the same conspiracies about election fraud cited in the draft executive order to justify the seizure of voting machines.
Trump also continued to entertain some of the same core elements of those executive orders, including the idea of installing a special counsel to investigate election fraud.
Nearly two weeks after White House aides pushed back on the suggestion of naming Powell to such a role, Trump raised the idea again during another Oval Office meeting, but this time floated Cuccinelli as a possible candidate, according to testimony provided to the Senate Judiciary Committee by former senior Justice Department officials who were present.
Meanwhile, Flynn remained adamant that election equipment was going to be seized and personally reached out to at least one senior defense official in mid-December attempting to enlist their help with his cause, according to a source familiar with the outreach. [my emphasis]
There’s really not all that much new in the story as laid out here, except that a bunch of people who know their communications are in the FBI’s hands (and, in the case of Costello, who has spent the last nine months reviewing the content of those communications, including those Byrne describes Powell claiming to have sent Rudy) providing updated versions of the least-damning story they can tell here.
Just one more key part of the story that has changed.
As CNN described it in the 2020 version of the story (but NYT did not), Mark Meadows was also involved.
White House aides who participated in the meeting, including White House chief of staff Mark Meadows and counsel Pat Cipollone, also pushed back intensely on the suggestion of naming Powell as a special counsel to investigate voter fraud allegations Trump’s own administration has dismissed (or, as seems more feasible, hiring her in the administration for some kind of investigatory role).
Meadows shows up in yesterday’s NYT story only as not being the one who let Powell and Flynn and Byrne in the White House.
When Mr. Flynn, Ms. Powell and Mr. Byrne arrived at the White House to discuss their plan to use the military to seize voting machines, they were not let into the Oval Office by a typical gatekeeper, like Mark Meadows, Mr. Trump’s chief of staff. Rather, they were escorted in by Garrett Ziegler, a young aide to another Trump adviser, Peter Navarro, according to Mr. Ziegler’s account.
“I waved in General Flynn and Sidney Powell on the Friday night of the 18th — for which Mark Meadows’s office revoked my guest privileges,” Mr. Ziegler said on a podcast, adding that he had done so because he was “frustrated with the current counsel” Mr. Trump was getting.
That guy — the former Chief of Staff who also was getting and sending a bunch of texts on his phone — that guy has also spent some time recently reviewing his communications. Not only did he review — and withhold — a bunch of communications before sharing some with the Select Committee, but once the Select Committee figured out that Meadows had violated the Presidential Records Act by failing to turn over those communications he conducted on his personal — but his emails! — devices, Meadows has been spending time trying to find such communications so he can share them with the National Archives to uncommit some crimes.
NARA, of course, has been ordered by a court to share such communications, even the ones that Trump might otherwise have invoked Executive Privilege over, with the Committee.
We’re going to get a lot of revised least-damning versions of these stories as more and more people review the communications that will be handed over to investigative bodies.
It’s worth comparing, then, the versions we’re getting now with those people were telling when they thought none of the emails and texts Sidney Powell sent would come out.
Update: Harpie is right. The Jonathan Swan version of this exchange, published exactly a year ago, is worth reading as well.
https://www.emptywheel.net/wp-content/uploads/2019/09/Rudy_Giuliani_1500x1000.jpg10001500emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2022-02-01 12:46:002022-02-01 17:14:42“I do share information[,] Rudy. You never read your emails, you never read your texts,” Sidney Powell purportedly said, while plotting a coup
I knew Rudy Giuliani was in trouble when I read him — along with his lawyer Robert Costello, who allegedly tried to bribe Michael Cohen with a pardon in the wake of an SDNY seizure of his phones — claim that SDNY had first accessed Michael Cohen’s communications after SDNY seized Cohen’s phones in a search of his house and office.
In April 2018, the Government was in this exact same position it is in now in dealing with seizures made from the personal attorney to the President. This is now the second dawn raid of the office and home of an attorney for then President Trump. A year before they searched Giuliani’s iCloud account in November 2019, they were dealing with the raid of Michael Cohen’s home and law office. In Cohen v. United States, 18-mj-3161 (KMW), after conducting a search of President Trump’s personal lawyer’s home and law office, the Government opposed the appointment of a Special Master in a letter to the Court dated April 18, 2018. Counsel for Michael Cohen and intervening counsel for President Trump both requested that a Special Master be appointed and that the Special Master review the evidence, but only after counsel for the respective parties had reviewed the evidence and made their own claims of privilege. On the day of a scheduled conference to decide the issue, the Government, in a letter to Judge Wood, withdrew their opposition to the Special Master, but requested that the Special Master, and not defense counsel, review all the evidence and make the initial determinations of privilege. Judge Wood adopted the compromise and appointed a Special Master to review all materials. One of the Government’s counsel that signed that letter is counsel on this matter as well.
As a result, the Government was well aware that it had agreed to a Special Master in a case involving claims of attorney-client and executive privilege regarding the search and seizure of an attorney’s home and office when that attorney was the personal attorney for the President of the United States. Here, when faced with the exact same situation in November 2019, the Government decided on its own, to use its own Taint Team to sift through all of the evidence gathered and decide what materials were privileged. To make matters worse, not only was Giuliani not informed about this practice, but the Government also continued to keep him, the President and his counsel in the dark for 18 months while Giuliani cooperated with another office of the United States Attorney. Based on its experience in the Cohen case, the Government knew better, or should have known better, that it should not make unilateral, uninformed secret decisions about privilege, but clearly threw caution to the wind in its attempt in this investigation in search of a crime.
Was it really possible, I asked myself, that the President’s own lawyer, as well as the President’s lawyer’s lawyer, had no idea that Mueller’s team had obtained Michael Cohen’s Trump Organization emails from Microsoft with an August 1, 2017 warrant, content which they later shared with SDNY? Was it really possible, I wondered, that Rudy and Costello didn’t know that Mueller also obtained Cohen’s Google and iCloud content, obtained a non-disclosure order for it, and then later passed it on to SDNY, which obtained a separate warrant to access it? Did they not know that that process started 8 months before SDNY raided Cohen’s home and office and took his devices, which then led to the appointment of Special Master Barbara Jones? Did they really not know that SDNY first obtained Cohen’s content with some covert warrants, reviewed that information with the use of a filter team, and only after that got some of the very same information by seizing Cohen’s phones, only with the later seizure, used a Special Master to sort out what was privileged and what was not?
After the government’s reply, I thought for sure they’d start to cop on. I figured Rudy and Costello — who collectively, allegedly tried to bribe Cohen’s silence about the crimes he had committed while purportedly providing legal representation for Donald Trump — would understand the significance of this passage of the government reply:
Giuliani also analogizes this case to Cohen, suggesting that the Government should have known to use a special master because it had just agreed to use one in that case. (Giuliani Ltr. at 11). But Cohen favors an opposite conclusion: there, as here, the Government first obtained covert search warrants for accounts belonging to the subject. The returns of those covert warrants were reviewed by a filter team—a process which was not challenged. Although Judge Wood ultimately appointed a special master in Cohen, she repeatedly made clear her view that the use of a filter team was acceptable and was consistent with the substantial body of law in this Circuit. (See, e.g., Cohen, Dkt. 38 at 8). However, based on the unique circumstances of the case—Cohen’s principal and perhaps only client was then the President, and the case was subject to significant public attention—Judge Wood believed, and the Government agreed, that the use of a special master was needed for the “perception of fairness, not fairness itself.” (Cohen, Dkt. 104 at 88). But even after appointing a special master, Judge Wood continued to recognize the appropriateness of the use of a filter team: at the end of the special master’s review, there was one cellphone that had not been decrypted, and Judge Wood ordered that the if the cellphone was ultimately extracted, the privilege review could be conducted by the Government’s filter team. (Cohen, Dkt. 103 at 6). Thus, following Cohen, it was entirely appropriate for the Government to use a filter team during the covert phase of its investigation, but in light of the intense public interest in this matter following the overt execution of the 2021 Warrants, the Government agrees that while the appointment of a special master is not necessary for fairness, it is in the interest of ensuring that the privilege review process is perceived as fair.
But I didn’t write up the implications of that yet, because I figured there was still something that might save Rudy and Victoria Toensing. Maybe they’d pick a Special Master who would apply dramatically different rules than Special Master Barbara Jones had with Cohen, particularly an approach that said Cohen and Trump could claim privilege and hide the content, but any legal argument about that privilege had to be public. Surely they would be smart enough not to pick Jones, right? Surely, I thought, Rudy and Costello wouldn’t be dumb enough to be lulled into agreeing to appoint Jones herself, perhaps based on a false sense of confidence that since she works at Rudy’s former firm, she’ll go easy on the Mayor?
And yet, yesterday the government wrote to inform Judge Paul Oetken that the parties had agreed on a single choice to serve as Special Master: Barbara Jones.
The Government writes on behalf of the parties to propose the appointment of the Honorable Barbara S. Jones, a retired federal judge with the law firm of Bracewell LLP, to serve as the court-appointed special master for this matter.
They further asked that Oetken write up an order applying the same approach as Jones used with Cohen with Rudy.
The Government respectfully requests that the Court appoint Judge Jones to serve as the special master in this matter because her background and the resources available to her at her law firm will allow her to complete a privilege review in a fair and efficient manner. Mr. Giuliani and Ms. Toensing, through counsel, have both agreed to the appointment of Judge Jones. The Government has conferred with Judge Jones and she is available to accept this appointment. The Government respectfully suggests that the Court issue an Order of Appointment similar to the one issued by Judge Wood in the Cohen matter, setting forth the duties of the special master, the reporting and judicial review requirements, terms of compensation, terms of engagement of other professionals, and other relevant provisions. Cohen, No. 18 Misc. 3161 (S.D.N.Y. Apr. 27, 2018) (Dkt. 30). Judge Jones is available to speak with the Court directly should the Court have any questions about her potential appointment.
Understand, the government has now gotten Rudy on the record begging that he get the same treatment as Michael Cohen. It has gotten Rudy on the record saying he prefers to have a Special Master rifle through his potentially privileged communications than a filter team.
Had this been done overtly, or through the Government’s less onerous subpoena powers, we would have requested that a Special Master to be appointed at the time.
It has also gotten Victoria Toensing to agree on the value of a Special Master (even though she requested she get first shot at reviewing her content).
Appoint a Special Master from the list of candidates proposed by the parties or another suitable candidate identified by the Court to oversee the process and resolve any disputes that may arise;
When former SDNY US Attorney Rudy Giuliani and former Deputy Assistant Attorney General Victoria Toensing made those comments, though, they probably didn’t think through the implication of filter team protocols that both presumably know or once knew, but which the government was kind enough to spell out in their reply to the lawyers’ letters:
As is its practice, the filter team did not release any potentially privileged materials based on the possible application of waiver or crime fraud principles, even if the applicability of those exceptions was apparent on the face of the document.
SDNY filter teams will not pass on potentially privileged materials seized from an attorney even if there is an obvious crime-fraud exception. By description, SDNY suggests that “the applicability of [such] exceptions was apparent on the face of” some of the communications — new copies of which SDNY seized last month — SDNY’s filter team reviewed already. But they couldn’t pass them on because that’s not how SDNY filter team protocols work.
And yet, as a result of Barbara Jones’ review of material seized from Donald Trump’s attorney’s devices, SDNY obtained evidence — of Michael Cohen negotiating hush payments with two women — that might otherwise have been privileged, but that was clearly evidence of a crime. In fact, Trump thought about fighting the release, except after Judge Kimba Wood ruled that legal disputes have to be public, Trump decided not to challenge its release.
An SDNY filter team cannot share evidence that shows a lawyer breaking the law in the service of doing Donald Trump’s dirty work.
But Special Masters can. And Barbara Jones already has.
When I first read these filings — especially SDNY’s very generous offer to pick up the tab for a Special Master — I thought it was just about timeliness, about getting Rudy’s evidence in hand as quickly as possible. But it’s not. It’s the only way that they can obtain materials that they know exist that show Rudy committing a crime in the guise of serving as a lawyer. Admittedly, it might just be materials implicating Lev Parnas and Igor Fruman. But, as happened to Cohen, it might also cover things Rudy did while allegedly doing lawyer stuff for Donald Trump.
Remember, this whole process started when John Dowd claimed that Parnas and Fruman helped Rudy represent Trump, Rudy represented Parnas and Fruman, and they also helped Toensing represent Dmitro Firtash.
Be advised that Messrs. Parnas and Fruman assisted Mr. Giuliani in connection with his representation of President Trump. Mr. Parnas and Mr. Fruman have also been represented by Mr. Giuliani in connection with their personal and business affairs. They also assisted Joseph DiGenova and Victoria Toensing in their law practice. Thus, certain information you seek in your September 30, 2019, letter is protected by the attorney-client, attorney work product and other privileges.
John Dowd made an absurd claim that, even then, was a transparent attempt to hide real dirt behind attorney-client privilege. That’s precisely the material that SDNY is asking Barbara Jones to review to see whether it’s really privileged.
Update: Lev Parnas renewed his bid to force DOJ to go look for materials that help him at trial and support his selective prosecution claim. Along with describing some communications that he believes to exist that would be in Rudy’s files (such as proof of Rudy saying that one of their mutual Fraud Guarantee victims did no due diligence), Parnas outlines the evidence that he was prosecuted to shut him up. The Dowd actions are central to that.
The Government argues that, since Parnas was not yet attempting to cooperate with Congress at the time he was arrested, his selective prosecution claim is without merit. However, by the time of Parnas and Fruman’s arrest, Parnas had received a demand letter seeking evidence from the House Intelligence Committee, and been referred by Giuliani and Toensing to Attorney John Dowd—who had previously represented former President Trump. Attorney Dowd then secured a conflict waiver from Trump—who claimed not to know Parnas—by e-mail through the President’s chief impeachment counsel, Jay Sekulow. Next, Dowd met with Parnas and took custody of materials that he believed were responsive to Parnas’ demand letter. Then, Dowd informed the Intelligence Committee that Parnas would not be appearing as requested, and the evening before Parnas and Fruman were arrested wrote an e-mail to Giuliani, Jay Sekulow, Toensing, and others assuring that Parnas and Fruman would not be appearing to give a deposition or evidence against the former President. Giuliani then backed out of a planned trip to Vienna with Parnas and Fruman, and they were arrested as they boarded their flight. The following day, then-Attorney General William P. Barr made a “routine” visit to the SDNY, and, in the following months, sought the removal of SDNY U.S. Attorney Geoffrey Berman under still-undisclosed circumstances that may well have related to prosecutorial decisions made in Parnas and his co-defendants’ case.
https://www.emptywheel.net/wp-content/uploads/2019/12/rudy-bug-eyes-3-2.jpg7301297emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2021-06-04 09:21:172021-06-04 16:26:08Barbara Jones’ Special Mastery of Releasing Donald Trump’s Lawyers’ Crime-Fraud Excepted Communications
As I’ve been harping of late, Billy Barr and Jeffrey Rosen went to great lengths to protect Rudy Giuliani’s efforts to obtain and disseminate what the Intelligence Community already knew was Russian-backed disinformation laundered through Andrii Derkach. That effort included the following:
For whatever reason, not warning Rudy that the Intelligence Community knew Russia was targeting him for an information operation before he traveled to his December 2019 meeting with Derkach
Prohibiting SDNY from expanding its existing investigation into Rudy’s foreign influence peddling to include his efforts with Derkach by making EDNY a gate-keeper for any such decisions
Asking Pittsburgh USA Attorney Scott Brady to accept the information that the IC already knew was Russian disinformation from Rudy
Doing nothing while Rudy continued to share information the IC already knew was Russian disinformation during an election
After belatedly opening an investigation into the Derkach effort that the IC had known was Russian disinformation for a year, opening it at EDNY and scoping it to ensure that Rudy’s own actions would not be a subject of the investigation
As a result of this remarkable effort, led by the Attorney General and Deputy Attorney General, to protect Russian disinformation, DOJ willingly ingested a bunch of Russian disinformation and used it to conduct an investigation into the son of the President’s opponent.
Last year, when it was disclosed that Barr had directed Brady to willingly accept this Russian disinformation, American Oversight FOIAed and then sued for the paper trail of the effort, submitted as four separate FOIAs:
[To OIP and USAPAW] “Brady Order and Written Approval” — which specifically asked for “two readily-identifiable, specific documents” — described as:
The written approval of the Attorney General or Deputy Attorney General authorizing U.S. Attorney for the Western District of Pennsylvania (USAPAW) to create and/or administer a process for receiving purported investigatory information from Rudy Giuliani concerning matters that relate to former Vice President Biden
A copy of the Attorney General’s order directing USAPAW to conduct an evaluation, review, probe, assessment, “intake process,” preliminary investigation
[To OIP and USAPAW] “Giuliani Directives, Guidance, & Communications,” described as:
All directives or guidance provided to USAPAW regarding an evaluation, review, probe, assessment, “intake process,” preliminary investigation, or other investigation of any information received from Rudy Giuliani, including information that may concern former Vice President Biden
All records reflecting communications between (1) the Office of the Attorney General or the Office of the Deputy Attorney General and (2) USAPAW regarding an evaluation, review, probe, assessment, preliminary investigation, or other investigation of any information received from Rudy Giuliani
All records reflecting communications within the OAG or the ODAG regarding any evaluation, review, probe, assessment, “intake process,” preliminary investigation, or other investigation of any information received from Rudy Giuliani, including information which may concern former Vice President Biden
[To USAPAW] “Brady-Giuliani Communications,”described as all records reflecting communications between (1) USAPAW in the course of any evaluation, review, probe, assessment, “intake process,” preliminary investigation, or other investigation of any information received from Rudy Giuliani and (2) Rudy Giuliani, or any of Mr. Giuliani’s personal assistants or others communicating on his behalf, including but not limited to Jo Ann Zafonte, Christianne Allen, or Beau Wagner
[To USAPAW] “Brady-White House Communications,” described as any communications between (1) USAPAW in the course of any evaluation, review, probe, assessment, “intake process,” preliminary investigation, or other investigation of any information received from Rudy Giuliani and (2) anyone at the White House Office
Before American Oversight filed the lawsuit, the Trump Admin did two things that will have an effect on what we’re seeing. First, DOJ combined requests one and two above; as we’ll see, that had the effect of hiding that Barr didn’t put anything in writing. In addition, USAPAW told American Oversight that they were going to refer the request for such an order to Main Justice for referral.
While the lawsuit was filed under the Trump Administration, the substantive response to it started in February. The FOIA is a way to understand more about this effort — both how willing Barr’s DOJ was to put this scheme in writing, as well as the volume of paper trail that it generated.
The first status report, submitted on February 22, revealed the following based on an initial search:
“Brady Order and Written Approval” and “Giuliani Directives, Guidance, & Communications” (aggregated) at Main DOJ: 8,851 items
“Giuliani Directives, Guidance, & Communications” and “Brady-Giuliani Communications” at USAPAW: 1,400 pages
“Brady-White House Communications:” none
The second status report, submitted on April 1, reported that of the initial search, the following was deemed potentially responsive:
“Brady Order and Written Approval” and “Giuliani Directives, Guidance, & Communications” (aggregated) at Main DOJ: 30 pages referred
“Giuliani Directives, Guidance, & Communications” and “Brady-Giuliani Communications” at USAPAW, of 272 pages reviewed so far:
3 pages released in full
189 pages referred to other agencies for consultation
Here’s what has currently been provided to American Oversight (go here for live links).
Note, this may be clarified in upcoming dumps, but for now, there appears to be something very irregular with the OIP response. At first, DOJ said there were up to 8,851 items that were responsive to American Oversight’s request. But with the next status report, DOJ said there were just 30 pages. The most recent release claimed to account for 28 of those 30 pages.
In the second joint status report, OIP stated that it had completed its search and its initial responsiveness and deduplication review of potentially responsive documents and identified approximately 30 pages of material likely responsive to Plaintiff’s request. See ECF No.7, ¶ 2. OIP further stated that it had sent these records out for consultation pursuant to the Department’s regulations, 28 C.F.R. § 16.4(d), and expected to be able to provide its first response to Plaintiff on or around April 29, 2021. Id. On April 29, 2021, OIP made its first interim response. It released 18 pages in part with portions redacted pursuant to Exemptions 5 and/or 6 and withheld four pages in full pursuant to Exemption 5. OIP is awaiting responses from other components on the remaining six pages.
The math looks like this:
18 pages released
4 pages withheld under b5 exemption*
6 pages referred to another component
Total: 28 pages
Remaining: 2 pages
That’s a problem because there are at least two pages of emails that were part of the USAPAW response that must have had a counterpart at DOJ, as well as one missing from both (though USAPAW has 1000 pages to release):
A January 3, 2020 email from Seth DuCharme to Scott Brady asking, “Scott do you have time for a quick call today in re a possible discreet assignment from OAG and ODAG?” (Brady’s response, which includes DuCharme’s original, is included in both, but the copy released by OIP was printed out from Brady’s account, not DuCharme’s).
A February 11, 2020 email from Brady to DuCharme, asking “Seth, do you have a few minutes to catch up today?” The email should exist in both accounts, and should be included in both OIP and USAPAW’s response.
A March 5, 2020 email from Brady to DuCharme, asking “Seth: do you have 5 minutes to talk today?”
Brady resigned effective February 26 and DuCharme resigned effective March 19. At the time he resigned, DuCharme was supervising an investigation into this Derkach stuff, one that excluded Rudy as a subject.
I assume this will become more clear with further releases (indeed, American Oversight may have the next installment already). Perhaps there’s a sound explanation. But thus far, it looks like only the Brady side of exchanges between him and DuCharme have been provided in response.
* The response letter to Jerry Nadler was two pages long, and the draft was sent twice (or there were two drafts), so those probably account for the 4 pages withheld on b5 exemptions.
Now that I’ve waded through Rudy Giulilani’s response to learning that SDNY had conducted a covert search on him in November 2019 before it conducted an overt search in April 2021, I’m certain Rudy engaged in just the kind of bad lawyering SDNY hoped he would — more on that in a week or so.
But a big part of his letter was not an attempt to engage in good lawyering, but instead to send messages to a variety of people. He provided co-conspirators a map they can use to understand which of their communications are in SDNY’s hands, and which are not. But he also laid out what he called his “cooperation,” which aside from minimal claims (which SDNY disputed) to have cooperated with SDNY against Lev Parnas and Igor Fruman, really amounts to the corrupt stuff he believed he was protected for because he did it on behalf of Donald Trump. Indeed, he claims that if Judge Paul Oetken only knew he had permission to do all this stuff, then he wouldn’t have approved the warrants against him.
It is unknown if the Government informed the Court of Giuliani’s cooperation with the State Department or his offers to cooperate with the SDNY or his actual cooperation with the Western District of Pennsylvania.
His first claim of “cooperation” revisits claims he made in the wake of the whistleblower complaint in 2019, claiming that he was working closely with State when he was lobbying to fire Marie Yovanovitch.
It was premature and unwarranted for the Government to seize Giuliani’s ESI because Giuliani had already cooperated with the US State Department (“State”) through Mike Pompeo, the Secretary of State, in March 2019 concerning Ukraine. He also cooperated again in July and August of 2019 at the request of the State Department in assisting them with regard to Ukraine.
This is almost certainly the meat of the SDNY investigation, and whatever else Rudy has done by invoking it, he has put Mike Pompeo on the hotseat.
It may not be a coincidence that in the wake of this letter, Gordon Sondland sued Mike Pompeo for covering up what really happened in State in 2019 and provided several excuses — most importantly, that Pompeo refused to let him access his own backup materials before testifying — for why his two existing sessions of sworn testimony might conflict with what SDNY seized from Rudy.
In his other claim of cooperation, Rudy detailed how he shared disinformation from Russian agent Andrii Derkach with DOJ, which he described as “cooperation” with Main Justice in the guise of its delegate, Pittsburgh US Attorney Scott Brady.
Before I repeat Rudy’s description of how he shared disinformation from Andrii Derkach with a hand-picked and very pro-Trump US Attorney, consider several details: first, immediately in the wake of the raid on Rudy in April, there were leaked explanations for how Rudy managed to meet with a known Russian agent — right in the middle of impeachment!! — even though both National Security Advisor Robert O’Brien and FBI’s Counterintelligence folks knew that Russia was feeding Derkach disinformation to feed to Rudy.
The WaPo originally reported that the FBI had warned Rudy, but had to retract that. Rudy never got warned.
Correction: An earlier version of this story, published Thursday, incorrectly reported that One America News was warned by the FBI that it was the target of a Russian influence operation. That version also said the FBI had provided a similar warning to Rudolph W. Giuliani, which he has since disputed. This version has been corrected to remove assertions that OAN and Giuliani received the warnings.
The FBI became aware in late 2019 that Rudolph W. Giuliani was the target of a Russian influence operation aimed at circulating falsehoods intended to damage President Biden politically ahead of last year’s election, according to people familiar with the matter.
Officials planned to warn Giuliani as part of an extensive effort by the bureau to alert members of Congress and at least one conservative media outlet, One America News, that they faced a risk of being used to further Russia’s attempt to influence the election’s outcome, said several current and former U.S. officials. All spoke on the condition of anonymity because the matter remains highly sensitive.
The FBI became aware of the Russian information operation at a time when Giuliani was deeply involved with former president Donald Trump’s 2020 reelection campaign and related activities in Ukraine to surface unflattering or incriminating information about the Biden family.
[snip]
In late 2019, before Giuliani’s trip to Kyiv, U.S. intelligence agencies warned the Trump White House that Giuliani was the target of a Russian influence operation, as The Post reported last year. Officials became concerned after obtaining evidence, including communications intercepts, that showed Giuliani was interacting with people tied to Russian intelligence. The warnings led then-national security adviser Robert C. O’Brien to caution Trump that any information Giuliani brought back from Ukraine should be considered contaminated by Russia.
Then, after matching the WaPo’s original story and similarly having to retract it, NBC offered an explanationwhy Rudy wasn’t given that briefing: because it would “complicate” what NBC called “the criminal investigation” into Rudy.
The FBI prepared a so-called “defensive” briefing for Rudy Giuliani in 2019 in which agents were poised to warn him he was being targeted by a Russian intelligence influence operation as he sought to gather opposition research on the Biden family, according to a source familiar with the matter.
But that briefing was not given, according to a second source familiar with the matter, because of concerns that the briefing could complicate the criminal investigation into the former New York City mayor.
Yet, at the time Rudy would have gotten this warning, SDNY had already shown probable cause Rudy was an agent of one or another pro-corruption Ukrainians, almost certainly Yuri Lutsenko in his efforts to fire Marie Yovanovitch. Without a Derkach angle to the SDNY investigation — an angle Jeffrey Rosen went to great lengths to prevent them from pursuing — it’s not clear how it would have complicated that investigation.
Rudy didn’t get his warning and instead of warning him, Trump said that was Rudy being Rudy. So Rudy first met with Lutsenko, the subject of the first investigation, and headed from that meeting directly to meet with Derkach.
A month later, Rosen issued a memo prohibiting any prosecutors from expanding the scope of their already opened investigations, which would have had the effect of preventing SDNY from investigating Rudy’s ongoing influence peddling for known Russian agent Andrii Derkach, about whom FBI decided not to warn Rudy even though everyone briefed on it knew it was a Russian intelligence operation.
But that wasn’t the only thing that Billy Barr and Rosen’s efforts to divvy up Ukrainian investigations did. After Rosen wrote that memo (ensuring no one could start an investigation into Rudy’s dalliances with Derkach), but still a week before Trump was acquitted for coercing dirt from Ukraine to use against Joe Biden, per Rudy’s timeline, Barr assigned Pittsburgh US Attorney Scott Brady to oversee intake of all Ukrainian dirt and, within a day, Rudy was in the business of sharing Derkach’s dirt directly with Pittsburgh’s US Attorney’s office.
In his letter, Rudy clearly identifies four of the nine people who rushed to accept Rudy’s dirt, which the government had identified as Russia disinformation before he went to collect it in December.
[I]n January 2020, counsel for Giuliani contacted high officials in the Justice Department, to inform them that Giuliani wanted to provide evidence for their consideration about the Ukraine. Within a day, the United States Attorney for the Western District of Pennsylvania, Scott W. Brady, contacted Giuliani’s counsel and offered to hold a meeting in Pittsburgh with both the United States Attorney’s office personnel and the FBI. Mayor Giuliani immediately accepted, and a meeting was scheduled for January 29, 2020.
On January 29, 2020, Mayor Giuliani and his counsel, flew to Pittsburgh at their own cost, where they were met by agents of the FBI and transported to FBI headquarters in Pittsburgh. Present at that meeting were the United States Attorney, the First Assistant United States Attorney, the Chief of the Criminal Division, and two additional Assistant United States Attorneys (“AUSA’s”) from the Western District of Pennsylvania. The FBI was represented by the Special Agent in Charge (“SAIC”) of the Pittsburgh FBI, the Assistant Special Agent in Charge (“ASAIC”), and three other special agents of the FBI.
Prior to the meeting, Giuliani’s counsel had provided the Pittsburgh United States Attorney’s office with documents and an extensive outline of the subject matter to be discussed, so that the Government could be fully informed and prepared to ask probing questions. Giuliani began the meeting by making a presentation with handouts. During his presentation, and at the end of it, the Mayor and his counsel answered every question they were asked, to the apparent satisfaction of all of the Government officials in the room. In addition to the presentation, Giuliani provided the Government with the names and addresses of individual witnesses, both in the United States and in Ukraine, that could corroborate and amplify the information that the Mayor was providing. Subsequent to that meeting, and covering a period of months, counsel for Giuliani received a number of inquiries, discussions and requests from the First Assistant United States Attorney. All requests were granted and all inquiries were answered. [my emphasis]
And, as Rudy tells it, that First AUSA kept coming back for more, a claim (like his other claims about the personnel involved) that matches a story published in the NYT after those involved knew that Trump had lost. That story also described that Brady kept pushing for inappropriate investigative steps until, ultimately, Seth DuCharme had to get involved.
Officials said that Mr. Brady almost immediately started pushing to take aggressive steps. He had a list of people he wanted F.B.I. agents to question. It was not clear whether they were the same witnesses that Mr. Giuliani and Mr. Costello had submitted, but a former law enforcement official said that Mr. Brady had wanted the F.B.I. to question people mentioned in Mr. Giuliani’s materials.
The steps were outside “normal investigative procedures,” one former senior law enforcement official with knowledge of the events said, particularly in an election year; Justice Department policy typically forbids investigators from making aggressive moves before elections that could affect the outcome of the vote if they become public.
The Pittsburgh F.B.I. office refused to comply without the approval of David L. Bowdich, the F.B.I.’s deputy director, the former official said.
Mr. Brady’s demands soon prompted a tense confrontation with F.B.I. officials at the bureau’s headquarters in Washington. The meeting was mediated by Seth D. DuCharme, now the acting U.S. attorney in Brooklyn and at the time a trusted aide and ally of Mr. Barr’s at the Justice Department in Washington.
Then, after Barr failed to replace Geoffrey Berman with a hand-picked flunky when he fired him on June 20 of last year, Barr instead installed DuCharme in Brooklyn on July 10, thereby making DuCharme (who had already been personally involved in Pittsburgh) the gatekeeper on any investigations pertaining to Ukraine. And sometime months after that — as Rudy continued to share known Russian disinformation during the election — DuCharme approved not an expansion of the investigation in SDNY that Barr tried to shut down by firing Berman, which would have been the logical thing to do if you were concerned about Russians interfering in our elections, but instead a parallel investigation in EDNY that, per the more recent NYT report, by design would not treat Rudy as a subject. Meanwhile, Rosen created repeated roadblocks — higher and higher levels of approvals for a search of Rudy — in an attempt to prevent SDNY from advancing their investigation into Rudy any further.
There are some involved in this story, like the FBI Agents who got promoted into the jobs formerly held by Andrew McCabe and Bill Priestap and Peter Strzok, who probably let all this happen because they knew the best way to advance their careers was to not make the mistake that their predecessors had made by trying to keep the country safe from Russian interference during an election. Others may rationalize what they did as a means to placate the President, perhaps imagining that it wouldn’t do that much damage to the country — that was the excuse cited by the NYT article on the Pittsburgh investigation. But those people, in recognizing Trump would lash out if they tried to investigate Russian interference in the 2020 election, would have therefore understood that Trump wanted Russian spies to interfere in the election and would be furious if they prevented it. They would have had to have understood that the way to keep Trump happy was to let Russia have its way. They would have been operating on the recognition that all the claims about what Trump did in 2016 were true, at least as far as 2020.
Plus, no one who pushed as hard as Scott Brady did can claim to be trying to placate the President.
Finally, worst of all, there are those who took a vow to “protect and defend against enemies foreign and domestic” who made affirmative attempts to protect not just the disinformation that Rudy was feeding to DOJ and FBI, but also protect Rudy for serving as the willful handmaiden of someone they knew was a Russian spy.
The Russian scandal of 2020 is, in many ways, even more scandalous than the Russian scandal of 2016. At least Paul Manafort and Roger Stone were in a position to claim plausible deniability. Bill Barr and Jeffrey Rosen are not.
Update: This email obtained via American Oversight shows that the decision to use Scott Brady to protect the Russian disinformation intake started earlier, by January 3.
https://www.emptywheel.net/wp-content/uploads/2020/01/Rudy-and-the-Grifters.png10101280emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2021-05-30 16:50:352021-05-31 03:45:18Rudy Giuliani’s Alleged “Cooperation” Is a Threat to Lay out How Bill Barr and Jeffrey Rosen Protected Russian Disinformation
As I showed in the Rat-Fucker Rashomon series, it can be tremendously useful to compare how different inquiries into Russian interference in 2016 tell that story. That’s true not just of Roger Stone; it’s also true of Rudy Giuliani.
By the time SSCI finished its Russia Report, the shape of the 2020 Russian influence campaign was evident, and it shows up, in redacted form, in the final report. As part of that discussion, the SSCI Report deals with Rudy at least once in almost entirely redacted passages about the ongoing influence campaign involving Russian assets in Ukraine. That is, it clearly suggests the trajectory led to the influence campaigns that were still active in 2020.
Perhaps because SSCI had the advantage of seeing where Rudy would end up, it also included a few more details about Rudy from earlier on of interest. For example, before Paul Manafort discussed how to win Pennsylvania and how to carve up Ukraine on August 2, 2016, he met with Trump and Rudy Giuliani in Trump Tower.
Among the details SSCI shows of the Trump campaign exploiting documents leaked to WikiLeaks is a citation to an email, dated October 11, 2016, showing Rudy was in that loop.
When Rick Gates was asked what kind of contact Paul Manafort retained with Trump after he was ousted from the campaign, Gates revealed that Manafort told Gates that Rudy Giuliani was helping him place people in Administration positions.
And PsyGroup’s Joel Zamel claimed that Rudy introduced him to Jared Kushner some months after the inauguration; Kushner and Zamel had a meeting at the White House to discuss “human rights issues in the Middle East, Iran, and ‘counter-extremism’.”
Aside from the detail that Manafort was using Rudy as a side channel to influence the White House, those aren’t necessarily momentous details.
Still, those details show that Rudy was a participant in these events during 2016. And yet, Rudy doesn’t show up as such in discussions about 2016 in the Mueller Report. Rather, Rudy shows up exclusively as Trump’s lawyer, floating the pardons in an attempt to get witnesses to lie to cover up what really happened in 2016.
Rudy — who was not yet formally Trump’s personal counsel — and his current defense attorney, Robert Costello, didn’t succeed in getting Michael Cohen to shield Trump.
On or about April 17, 2018, Cohen began speaking with an attorney, Robert Costello, who had a close relationship with Rudolph Giuliani, one of the President’s personal lawyers. 1022 Costello told Cohen that he had a “back channel of communication” to Giuliani, and that Giuliani had said the “channel” was “crucial” and “must be maintained.” 1023 On April 20, 2018, the New York Times published an article about the President’s relationship with and treatment of Cohen. 1024 The President responded with a series of tweets predicting that Cohen would not ” flip” :
The New York Times and a third rate reporter . . . are going out of their way to destroy Michael Cohen and his relationship with me in the hope that he will ‘flip. ‘ They use nonexistent ‘sources’ and a drunk/drugged up loser who hates Michael, a fine person with a wonderful family. Michael is a businessman for his own account/lawyer who I have always liked & respected. Most people will flip if the Government lets them out of trouble, even if it means lying or making up stories. Sorry, I don’t see Michael doing that despite the horrible Witch Hunt and the dishonest media! 1025
In an email that day to Cohen, Costello wrote that he had spoken with Giuliani. 1026 Costello told Cohen the conversation was “Very Very Positive[.] You are ‘loved’ … they are in our corner … . Sleep well tonight[], you have friends in high places.”1027
But Rudy, acting as part of Joint Defense Agreement in the role of Trump’s personal counsel, did succeed in getting Paul Manafort to lie about what happened on August 2 and efforts to carve up Ukraine in the aftermath.
Immediately following the revocation of Manafort’s bail, the President’s personal lawyer, Rudolph Giuliani, gave a series of interviews in which he raised the possibility of a pardon for Manafort. Giuliani told the New York Daily News that “[w]hen the whole thing is over, things might get cleaned up with some presidential pardons.” 856 Giuliani also said in an interview that, although the President should not pardon anyone while the Special Counsel’s investigation was ongoing, “when the investigation is concluded, he’s kind of on his own, right?”857 In a CNN interview two days later, Giuliani said, ” I guess I should clarify this once and for all. . . . The president has issued no pardons in this investigation. The president is not going to issue pardons in this investigation …. When it’s over, hey, he’s the president of the United States. He retains his pardon power. Nobody is taking that away from him.”858 Giuliani rejected the suggestion that his and the President’s comments could signal to defendants that they should not cooperate in a criminal prosecution because a pardon might follow, saying the comments were “certainly not intended that way.”859 Giuliani said the comments only acknowledged that an individual involved in the investigation would not be “excluded from [ a pardon], if in fact the president and his advisors .. . come to the conclusion that you have been treated unfairly.”860 Giuliani observed that pardons were not unusual in political investigations but said, “That doesn’t mean they’re going to happen here. Doesn’t mean that anybody should rely on it. … Big signal is, nobody has been pardoned yet.” 561
[snip]
The President said that flipping was “not fair” and “almost ought to be outlawed.”880 ln response to a question about whether he was considering a pardon for Manafort, the President said, “T have great respect for what he’s done, in terms of what he’s gone through …. He worked for many, many people many, many years, and T would say what he did, some of the charges they threw against him, every consultant, every lobbyist in Washington probably does.”881 Giuliani told journalists that the President “really thinks Manafort has been horribly treated” and that he and the President had discussed the political fallout if the President pardoned Manafort.882 The next day, Giuliani told the Washington Post that the President had asked his lawyers for advice on the possibility of a pardon for Manafort and other aides, and had been counseled against considering a pardon until the investigation concluded.883
On September 14, 2018, Manafort pleaded guilty to charges in the District of Columbia and signed a plea agreement that required him to cooperate with investigators.884 Giuliani was reported to have publicly said that Manafort remained in a joint defense agreement with the President following Manafort’s guilty plea and agreement to cooperate, and that Manafort’s attorneys regularly briefed the President’s lawyers on the topics discussed and the information Manafort had provided in interviews with the Special Counsel’s Office.885 On November 26, 2018, the Special Counsel’s Office disclosed in a public court filing that Manafort had breached his plea agreement by lying about multiple subjects.886 The next day, Giuliani said that the President had been “upset for weeks” about what he considered to be “the un-American, horrible treatment of Manafort.”887
Also, for whatever reason — probably because he had word diarrhea — Rudy provided the best evidence that Trump knowingly lied on his written answers to Mueller when he claimed not to remember the Trump Tower Moscow dangles during the election.
Also in January 2019, Giuliani gave press interviews that appeared to confirm Cohen’s account that the Trump Organization pursued the Trump Tower Moscow project well past January 2016. Giuliani stated that ” it’s our understanding that [discussions about the Trump Moscow project] went on throughout 2016. Weren’t a lot of them, but there were conversations. Can’t be sure of the exact date. But the president can remember having conversations with him about it. The president also remembers-yeah, probably up-could be up to as far as October, November.” 1069
Rudy was treated so persistently as a lawyer in the Mueller Report, but not a participant, that he didn’t even make the Glossary of Referenced Persons.
That’s true even though Rudy did show up in interviews as a topic of interest.
For example, when Mike Flynn was asked on April 25, 2018, just days after Rudy officially became Trump’s defense attorney, who else besides he and Bannon were hunting for Hillary’s missing 33,000 emails, the former Director of Defense Intelligence named Rudy, because he was “a big cyber guy.”
When question[ed] who else might have information about on the email messages, FLYNN mentioned Rudy GIULIANI. GIULIANI was “a big cyber guy” who have a speech on the topic in Tel Aviv. GIULIANI had a ton of contacts and traveled quite a bit with TRUMP (FLYNN surmised approximately half of the time). GIULIANI had a certainty that the emails were out there and available. GIULIANI would have said this directly to TRUMP. The natural response from TRUMP was “why the hell could they not find them?”
After two more questions (about Barbara Ledeen’s efforts), Mueller’s team returned to Rudy. This time, former Director of Defense Intelligence explained that if Rudy said something, you could be sure it was factual.
GIULIANI had contacts at the FBI, though he was pretty “close hold” on who he spoke with there. If GIULIANI said something, you could take it to the bank as factual, FLYNN believed that GIULIANI acted in a manner which indicated had specific knowledge related to the emails. FLYNN reviewed GIULIANI’s speech for Tel Aviv, made some comments, and gave it back to GIULIANI. GIULIANI did not name drop. GIULIANI popped in throughout the campaign to help with certain events. FLYNN did not know if GIULIANI knew Russia hacked the DNC.
Two more questions later, in response to a question about whether Jeff Sessions attempted to find the emails, Flynn brought up Rudy again.
FLYNN was asked whether SESSIONS or CHRISTIE made any efforts to find an answer based on their law enforcement backgrounds. SESSIONS did not make any effort at all. GIULIANI had deeper discussion on the issue with the campaign. CHRISTIE was somewhere between the two in regards to effort. CHRISTIE always seemed to “puff” about what he could do. FLYNN observed that GIULIANI and CHRISTIE had extensive connections and contact in New York. They constantly brought information back to the campaign. They did not do a lot of name dropping but there was a certainty to their information. FLYNN did not remember either of them saying they had contact with WikiLeaks.
Several more questions later, Flynn raised Rudy again in a discussion of whether anyone reached out to other countries for the emails.
Flynn opined that if Russia had them, then China, Iran, and North Korea also had them. Those countries had the cyber capabilities to get them and CLINTON was the Secretary of State. FLYNN also thought hactivist groups operating in the [sic] Ukraine could have them. It was also likely Israel had them. FLYNN did not recall specific discussions on reaching out to these countries to find out what they had. GIULIANI could have reached out to Israel but FLYNN did not know.
In an interview six days later, Mueller’s team asked Flynn more about the role of the guy who had just become Trump’s defense attorney.
FLYNN did not recall Rudy GIULIANI saying specifically what he was doing to learn more about the missing email messages. GIULIANI seemed insightful to FLYNN on knowing when news would break. GIULIANI was working on cyber policy for TRUMP. FLYNN was not sure if GIULIANI got his information from the news or from actual contacts. FLYNN attended a couple of meetings at Trump Tower where GIULIANI was present. GIULIANIs conversations were always that Wikileaks would release the missing email messages, not Russia. FLYNN thought Russia would wait to see who won the election. If CLINTON won, Russia could then use them for leverage over her. Wikileaks claimed to have the desire to put information out in the public to damage CLINTON.
FLYNN did not participate in any conversations with GIULIANI that indicated GIULIANI “cast his net” with his contacts. GIULIANI was one of a number of people around TRUMP’s inner circle. GIULIANI agreed on who was behind the hack but was not really certain. GIULIANI was a close hold guy but might share what he was hearing. FLYNN recently saw a clip that during the campaign, GIULIANI said during an interview that there were more leaks to come. FLYNN recalled that was the kind of thing GIULIANI would say with certainty related to cyber. FLYNN listened to GIULIANI who came across as a judge and made remarks as though they were facts.
I have not done a systematic review of all this (and earlier releases are too redacted to be of much use on such issues). But it’s not just Flynn who had something interesting to say about Rudy. When discussing the Transition (and egregiously downplaying his own role in foreign policy), for example, Steve Bannon described the tension during the Transition because both Jeff Sessions and Rudy wanted to be Secretary of State. “Bannon thought Giuliani would have issues in his confirmation if he was nominated as Secretary of State, however, because of some of his companies and foreign contacts,” Bannon explained, acknowledging even then that Rudy was a foreign influence peddling risk.
Perhaps it’s because, when Rudy became Trump’s defense attorney, it made any inquiry into his role in 2016 awkward. But even though Rudy was a participant in all this, and even though Mike Flynn thought he might be the most likely person to “cast his net” for ways to pursue stolen emails, it’s not clear how aggressively the Mueller team considered what role Rudy had.
https://www.emptywheel.net/wp-content/uploads/2020/11/Screen-Shot-2020-11-20-at-10.41.19-AM.png11182022emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2021-05-30 07:02:232021-05-30 13:25:39Rudy Giuliani’s Support Role in the Mueller Report
Eventually, I want to do a post quantifying all the damage to national security Billy Barr did by thwarting an influence-peddling investigation into Rudy Giuliani in 2019. But first, I want to quantify four ways that Barr is known to have obstructed the investigation into Rudy, effectively stalling the investigation for over 500 days.
The effort is helped by Rudy lawyer Robert Costello’s public claim that DOJ obtained a search warrant on Rudy’s iCloud account sometime in late 2019. That indicates that the investigation into Rudy’s ties to Lev Parnas and Igor Fruman (whether Rudy was the primary target or their business, Fraud Guarantee) already showed probable cause that a crime had been committed before Barr took repeated steps to undermine the investigation.
Fail to recuse from an investigation implicating Barr personally
The MEMCON of Donald Trump’s call with Volodymyr Zelenskyy invoked Barr personally, twice, including in the very same response where the President said that Marie Yovanovich would “go through some things.”
Well, she’s going to go through some things. I will have Mr. Giuliani give you a call and I am also going to have.Attorney General Barr call and we will get to the bottom of it.
According to a September 2019 NYT article, National Security Division head John Demers (who remains at DOJ and who oversees the FARA unit that would have a role in this prosecution), Deputy Attorney General Jeffrey Rosen, and Brian Benczkowski learned about the concerns about the call, including that it named Barr, even before the formal whistleblower complaint came in. Barr learned about it via some unexplained means.
It’s not clear what happened in that first round of review, but ultimately prosecutors reviewed it once the formal whistleblower complaint was referred by Joseph Maguire later in August and “declined to open an investigation.”
Mr. Eisenberg and Ms. Elwood both spoke on Aug. 14 to John Demers, the head of the Justice Department’s national security division, according to three people familiar with the discussion. Ms. Elwood did not pass on the name of the C.I.A. officer, which she did not know because his concerns were submitted anonymously.
The next day, Mr. Demers went to the White House to read the transcript of the call and assess whether to alert other senior law enforcement officials. The deputy attorney general, Jeffrey A. Rosen, and Brian A. Benczkowski, the head of the department’s criminal division, were soon looped in, according to two administration officials.
Department officials began to discuss the accusations and whether and how to follow up, and Attorney General William P. Barr learned of the allegations around that time, according to a person familiar with the matter. Although Mr. Barr was briefed, he did not oversee the discussions about how to proceed, the person said.
[snip]
At the end of August, the office of the director of national intelligence referred the allegations to the Justice Department as a possible criminal matter. Law enforcement officials ultimately declined to open an investigation.
While it’s true that Barr outsourced some actions — such as determining what to do with the first report and the White House request that DOJ publicly exonerate him — there’s no indication Barr recused from the investigation and indeed he remained in the loop with the White House about it. His failure to recuse is particularly important because, as the table above notes, he got briefed on the investigation into Parnas and Fruman not long after he was confirmed in February 2019. For most of August and September 2019, Barr and Jeffrey Rosen would have been two of the only people at DOJ who would recognize the danger the whistleblower complaint posed to Rudy and, through him, to Trump himself.
Ensure Public Integrity reviews only the Trump transcript, not the entire whistleblower complaint
Mind you, Barr didn’t conduct the investigation of the whistleblower complaint. Public Integrity prosecutors in the Criminal Division did, overseen by Brian Benczkowski.
According to an October 2019 report, Benczkowski still did not know of the investigation into Parnas and Fruman when he took a meeting with Rudy in the fall to discuss a bribery case implicating the Venezuelan who was paying for some of the Ukraine dirt-digging.
Several weeks ago, Brian A. Benczkowski, the head of the Justice Department’s Criminal Division, and lawyers from the division’s Fraud Section met with Mr. Giuliani to discuss a bribery case in which he and other attorneys were representing the defendants.
That meeting took place before the United States attorney’s office in Manhattan publicly charged the two Giuliani associates, Lev Parnas and Igor Fruman, with breaking campaign finance laws and trying to unlawfully influence politicians, including former Representative Pete Sessions, Republican of Texas. Mr. Parnas and Mr. Fruman were part of Mr. Giuliani’s effort to push Ukraine for an inquiry into Democrats.
“When Mr. Benczkowski and fraud section lawyers met with Mr. Giuliani, they were not aware of any investigation of Mr. Giuliani’s associates in the Southern District of New York and would not have met with him had they known,” said Peter Carr, a department spokesman.
[snip]
Prosecutors in Manhattan informed Attorney General William P. Barr about the investigation of Mr. Parnas and Mr. Fruman soon after he was confirmed in February, according to a Justice Department official. They were required to do so under the department’s rule that requires prosecutors to notify the attorney general of any cases that could generate national news media or congressional attention.
When Mr. Giuliani and other lawyers requested the meeting with the Justice Department to discuss a foreign bribery case, Mr. Benczkowski and the lawyers in the Fraud Section had not been informed of the Manhattan case and agreed to meet.
That exonerates him for being stupid enough to take the meeting, but it reveals something about the review of the complaint: it could not have adhered to the most basic rules of “connect-the-dots” investigations put in place after 9/11 to protect national security.
That’s because the first thing you’re supposed to do when you get a tip that implicates national security is to search DOJ’s holdings to see if the tip connects with any known suspects or investigations. Had this tip been treated like DOJ had been drilling for almost 17 years by the time the tip was received, then investigators would have searched on the OCCRP profile of Parnas and Fruman cited repeatedly in the full complaint.
Had that happened, then the implications of it would have been clear, it would have been referred to SDNY, Benczkowski would have learned about it, and DOJ wouldn’t have been making public exonerations of Trump.
Get OLC to overclassify the Barr connection and delay informing Congress
One likely way DOJ managed to avoid connecting Trump’s quid pro quo with the existing investigation of Parnas and Fruman is by treating the call with Zelenskyy, falsely, as the entirety of the whistleblower complaint. There’s no reference to Parnas and Fruman in the call, and so searching on it would not ID the tie to the SDNY investigation.
That’s one of several things that Steve Engel’s OLC did to attempt to avoid — and succeed in delaying — informing Congress about the complaint.
Engel’s OLC memo (a reprise of the memo that Amy Berman Jackson ruled was just a PR stunt to justify lying to Congress) claimed that the whistleblower complaint pertained exclusively to the conduct of the President and as such did not pertain to the Intelligence Community and so didn’t need to be shared with Congress. The only way to reach this decision would be to ignore the parts of the whistleblower complaint that deal with abuse of classification and the withholding of funds.
The other thing OLC did was to — at first– treat mentions of Barr and Rudy, as well as Ukraine and Zelenskyy, as Top Secret, even though the White House had only deemed those references to be Secret.
This effort, both to avoid informing the Intelligence Committees and, once he did, to hide key details from them, ultimately failed. But it did delay the discovery of the call from August to September 2019.
Warn Rupert Murdoch
Bill Barr had a meeting at SDNY the day before Parnas and Fruman were arrested on October 9. He went from there to a meeting with Rupert Murdoch, at Murdoch’s home.
It’s unclear what happened at that meeting, but Sean Hannity didn’t get on his flight to Vienna to meet with Dmitro Firtash, thereby avoiding even closer legal involvement in yet another Trump scandal.
There’s no evidence I know of that Barr similarly warned Rudy — Rudy canceled his trip, too, but it probably only took the arrest of Parnas and Fruman to persuade him of the wisdom of doing that. So I don’t consider this an act of obstruction protecting Rudy — just an act of obstruction protecting Sean Hannity.
Parnas has alleged that he was only arrested as a way to keep him silent about all this. While there’s a lot of reason to believe that’s possible, I’m not aware of proof that it did. It is, notably, one thing he was dangling his cooperation on with SDNY before he got remarkably quiet as the investigation into Rudy kicked into active mode.
Attempt to replace Geoffrey Berman with a Barr flunky
As noted, if we can believe Costello, then at some point SDNY did manage to conduct a search on Rudy’s iCloud. One possibility is that DOJ justified a search on Rudy after learning that Parnas had deleted his own iCloud account.
We may get more details of how that occurred with the Special Master argument.
For a time, the impeachment investigation presumably stalled any investigation into Rudy.
But last summer, at a time between the time when Rudy would have been implicated in the President’s Ukraine-related impeachment but before the time Rudy was attempting to undermine the election in explicit service of the President, Barr fired Geoffrey Berman. As Berman described, Barr attempted to bypass succession rules to temporarily put his own flunky in charge of the office, much as he had put Timothy Shea in at DC USA to kill investigations into Roger Stone, Mike Flynn, and (probably) Erik Prince.
By refusing to go along with Barr’s false claims that he had quit, however, Berman succeeded in ensuring that Audry Strauss, his then-Deputy, would replace him, where she remains today.
In all of Berman’s communications about why he dug in, he emphasized that there were investigations he wanted to see to completion, presumably including but not limited to this Rudy investigation.
Again, this effort failed. But, given what happened in DC, it is almost certain that this was an attempt to protect Rudy (and Steve Bannon).
DOJ used the election to refuse to approve a warrant on Rudy. And (while I’m having difficulty finding it) they imposed a policy requiring higher approvals for obtaining warrants on attorney content.
Effectively, that provided a way to stall the search into Rudy until April 20, 2021, when Lisa Monaco was approved.
Bill Barr tried, repeatedly, to entirely kill the investigation into Rudy, like he killed prosecutions of Stone and Flynn. But ultimately, one after another DOJ professional thwarted his attempts, and his abundant efforts to protect Rudy only managed to delay the investigation from October 2019 to April 2021.
Update: William Ockham notes that the change in policy was imposed on December 30, 2020, after Barr had resigned and at a time when Acting Attorney General Jeffrey Rosen knew that Joe Biden would take over DOJ. The new policy required consultation with a designated attorney in Office of Deputy Attorney General.
Within OEO, the Policy and Statutory Enforcement Unit (PSEU) is the section that provides this consultation. See Office ofthe Deputy Attorney General Guidance on AttorneyClient Privilege andAttorney Work Product Filter Protocols/or Search Warrants (July 2020). In many cases – particularly those involving significant investigations and high-profile matters – proposed searches are separately reported in urgent reports to the Attorney General and the Deputy Attorney General. To ensure mo!”e uniform notification procedures going forward, PSEU should notify the Office of the Deputy Attorney General (ODAG) of proposed searches involving subject attorneys. ODAG will assign an attorney to handle this responsibility who has the requisite knowledge and experience to provide meaningful input to PSEU. That attorney will provide updates to the Deputy Attorney General as necessary. Absent exigent circumstances, the OEO/PSEU consultation in Section 9-13.420 shall not be concluded until after ODAG has been notified and provided with an opportunity to provide input.
While probably not the sole intent, this may be why the search on Rudy was not approved until Lisa Monaco was confirmed on April 20.
https://www.emptywheel.net/wp-content/uploads/2020/01/Rudy-and-the-Grifters.png10101280emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2021-05-07 09:01:382021-05-07 10:54:22Four Ways Billy Barr Obstructed the Investigation into Rudy Giuliani
The day after the search on Rudy Giuliani and a single Victoria Toensing phone, the prosecutors on the Lev Parnas case wrote a letter to the judge in that case, Paul Oetken, asking that he appoint a Special Master to review the content of their phones before turning that content over to prosecutors. It was unsealed yesterday after Rudy and Toensing’s lawyers got to review the redactions and add any they wanted. Oetken has ordered a briefing schedule about how this should proceed, which will extend through May 17.
The letter suggests certain things:
The participation of Oetken and the Parnas prosecution team (Rebekah Donalski, Nicolas Roos, and Aline Flodr) is consistent with this investigation arising out of the Parnas investigation, as has been reported.
These searches were approved on April 21, which was the day after Lisa Monaco was confirmed on April 20. That suggests she approved of this search. It’s normal for the Deputy Attorney General to sign off on controversial searches like this, and this suggests they waited to have the confirmed DAG sign off rather than have John Carlin, who had been acting DAG until Monaco was confirmed.
A court in Maryland signed off on the seizure of Toensing’s phone before SDNY signed off on the search of it.
The letter cites two exceptional circumstances when it might be appropriate to appoint a Special Master: when the attorney-client privilege would involve the President, and so implicate executive privilege, and when the attorney is involved in matters “adverse to the United States Attorney Office.” It’s not clear if prosecutors have something specific in mind with the latter reference, but it’s certainly possible that this concerns matters that one or the other lawyer has clients who are before SDNY.
Seemingly to explain why Rudy and Toensing aren’t making this request, the letter notes that defendants normally do but, in this case, “there is no pending criminal case against the subjects of the search.” Make of that what you will.
The government is basically asking for the same initial rules to be applied as were applied in the Michael Cohen case. They don’t, however, ask that any legal discussions be submitted to the public docket, which is something that happened in Cohen’s case that seemed to dissuade Trump from making frivolous claims of attorney-client privilege.
The most interesting bit of the letter, however, comes after a redacted passage with two redacted footnotes.
That introduces the following discussion:
The Government believes that its use of a filter team to conduct a review pursuant to established protocols is sufficient to protect applicable privileges and that [one line redacted] given that the searches [redacted] were done in an overt manner. [half line redacted] as well as the unusually sensitive privilege issues that the Warrants may implicate, the Government considers it appropriate for the Court to appoint a special master to make the privilege determinations as to materials seized pursuant to the Warrants. In particular, the overt and public nature of these warrants necessitates, as Judge Wood observed, the appointment of a special master under the “perception of fairness, not fairness itself.”
That is, the government is explaining — in a letter that preempts any demand from Rudy and Toensing — that they don’t really need to do it this way, but partly because this search was public, it justifies doing so here.
But remember that the search of these devices is not the only one alleged. Rudy and his lawyer, Robert Costello, claim that SDNY also got a “covert” warrant for Rudy’s iCloud account sometime in late 2019.
A lawyer for former New York City mayor and Donald Trump attorney Rudy Giuliani said the Justice Department revealed on a Thursday conference call that the feds had penetrated Giuliani’s iCloud long before Wednesday’s search warrants were executed.
“I was told about it today in a conference call with the [U.S.] Attorney’s office,” attorney Robert Costello, a longtime friend of Giuliani’s, told The Daily Beast on Thursday night. “They told me they obtained a ‘covert warrant’ for Giuliani’s iCloud account in ‘late 2019.’ They have reviewed this information for a year and a half without telling us or [fellow Trump-aligned attorney] Victoria Toensing.”
During an appearance on Tucker Carlson’s Fox News show on Thursday night, Giuliani himself briefly referenced the warrant to search his iCloud account. “In the middle of the impeachment defense, they invaded, without telling me, my iCloud,” the Trump confidant said. “They took documents that are privileged. And then they unilaterally decided what they could read and not read. So the prosecutors at the Justice Department spied on me.”
A year and a half would put the search in October 2019, quite possibly before impeachment had formally started, and around the time when Lev Parnas and Igor Fruman were first charged. It likely put it at a time when Trump had no overt defense needs, and so no acknowledged privilege here (unless you count John Dowd’s October 3 letter to Congress that effectively put Trump in a joint defense agreement with Parnas and Fruman and alleged Russian mobster Dmitro Firtash).
I had thought this earlier reference might have been to a preservation order served to Apple, but the redacted passages are consistent with there having been a real search, one for which SDNY used only a taint team to weed out what was genuinely privileged. And there was clearly probable cause: Rudy was the business partner of two people charged for their business doings.
According to the terms of this letter, in the case of a covert search like the one Rudy claims occurred, there would be less cause for a Special Master.
Which is to say this letter may be more about the searches that have already occurred rather than the forthcoming exploitation that will be done with the oversight of a Special Master.
https://www.emptywheel.net/wp-content/uploads/2020/01/Rudy-and-the-Grifters.png10101280emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2021-05-05 10:00:402021-05-05 10:50:58In Request for Special Master, the Lev Parnas Prosecutors Hint at Prior Filter Team Searches on Rudy
On February 11, Steve Bannon’s pardon was lodged in his federal docket with no explanation, entered with a date of January 19. As compared to the Mike Flynn pardon, there was no DOJ request to dismiss the prosecution nor an indication that Bannon had accepted it.
Apparently, on February 18, Bannon’s lawyer wrote Judge Analisa Torres an email requesting that she dismiss the indictment against Bannon. In response, yesterday the government submitted a letter agreeing that Bannon can be terminated from the docket and have his bond returned, but opposing that the indictment be dismissed.
As prosecutors explain, a pardon is only meant to forgive punishment, it is not intended to forget the crime. And if the court dismissed the indictment, prosecutors point out, it would have consequences beyond the pardon.
The fact that Bannon was pardoned does not extinguish the fact that a grand jury found probable cause to believe that he committed the offenses set forth in the Indictment, nor does it undercut the evidence of his involvement therein which the Government expects to elicit as part of its presentation at trial. Were the Court to dismiss the Indictment against Bannon, it could have a broader effect than the pardon itself, among other things potentially relieving Bannon of certain consequences not covered by the pardon.
[snip]
Accordingly, because Bannon does not set forth any legal authority for the proposition that a court should dismiss an indictment following a pardon, and the only stated basis for his request is to “clarify” his status, the Court should deny the request.
The government also demands that Bannon file the letter in the docket.
Finally, the Court should direct Bannon to publicly file his February 18th letter on the docket. Bannon’s counsel submitted the letter to the Court by email—and therefore effectively under seal—because, in his view, “Bannon should no longer be a defendant in the case.” However, until the defendant is administratively terminated, he remains a named defendant and more important, Bannon’s status in the case is not a basis to make his submission under seal.
The government submitted the filing on the same day that CNN reported an accelerating state investigation into Bannon for the same crimes.
The Manhattan district attorney’s office has subpoenaed financial records related to Steve Bannon’s crowd-funding border-wall effort, signaling that its criminal investigation into former President Donald Trump’s chief strategist is advancing, according to people familiar with the matter.
Prosecutors sent the subpoenas after Trump pardoned Bannon in late January for federal conspiracy crimes tied to the southern border-wall project, making Bannon among the Trump world figures — including the former president — subjects of criminal investigations by Manhattan district attorney Cyrus Vance.
The grand jury subpoenas were sent to Wells Fargo, one of the financial institutions that handled some of the accounts used in the fundraising effort, and to GoFundMe, the crowdfunding platform where Bannon’s project, “We Build the Wall,” once operated, the people said.
The state grand jury investigation revives the possibility that Bannon, the conservative and outspoken political strategist, could face state criminal charges after shedding the federal case last month.
In addition to the criminal investigation, the New Jersey attorney general’s office has launched a civil inquiry into We Build the Wall. In September, the New Jersey Division of Consumer Affairs subpoenaed We Build the Wall for documents seeking a wide range of records, according to court filings.
This all suggests that Bannon may be in a far worse place for having obtained a Trump pardon.
In mentioning its intent to elicit testimony of Bannon’s actions in the letter, the government seems to be alluding to the fact that Bannon is a named co-conspirator. They will want (and need) to introduce his actions and statements as a co-conspirator into evidence to convict the others. Thus, it is important for prosecutors that he remain a named — albeit pardoned — co-conspirator in the Federal crimes.
Forcing Bannon’s attorney to submit the letter in the docket itself will effectively force him to officially accept the pardon, which prosecutors will then argue is admission of guilt, making the co-conspirator evidence from him even more valuable by association.
The public filing may also be necessary before Cy Vance can request the grand jury materials from Judge Torres, as referenced in the CNN piece.
And, of course, rather than facing a sentence at some Club Fed prison, Bannon might now be facing a crappier New York State prison like Rikers.
All that’s before any other federal charges facing Bannon related for foreign influence peddling.
It was never going to be easy for Bannon to pull off a Trump pardon. Thus far, his attorney Robert Costello may be making things worse.
https://www.emptywheel.net/wp-content/uploads/2020/05/Steve_Bannon_by_Gage_Skidmore.jpg587440emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2021-02-26 05:24:262021-02-26 06:52:33Government Refuses to Let Steve Bannon Sneak Away from His Federal Fraud Indictment
Axios reported that PardonPalooza would accelerate yesterday. But it didn’t happen. Not yet, at least.
I wonder if that’s because Trump got new visibility on his own lingering jeopardy from the Mueller investigation.
There’s a section of the Mueller Report that got declassified in the last batch which may explain why Jerome Corsi wasn’t charged. In advance of three people whose prosecution was declined — which definitely includes KT McFarland, along with two others (Erik Prince or Sam Clovis may be one, George Nader may be the other) — the report explains,
We also considered three other individuals interviews–redacted–but do not address them here because they are involved in aspects of ongoing investigations or active prosecutions to which their statements to this office may be relevant.
Corsi obviously lied to Mueller, but his lies served, in part, to support the head fake the Mueller Report used to address how Roger Stone optimized the Podesta files.
Another of those liars could be Paul Manafort.
But the third may be Steve Bannon, who told a rolling series of lies that over time approached the truth, at least about some issues. Bannon even tried to lie again to back off his grand jury testimony in advance of the Roger Stone trial.
Bannon would be interesting for several reasons. Bannon knew about Stone’s interactions with “WikiLeaks” even before he formally joined the campaign. Bannon was a key player in setting up the fall 2016 meeting with Egypt, which preceded what the government thinks could have been a foreign bribe that kept the campaign afloat (indeed, one thing Bannon seems to have always lied about was his work with George Papadopoulos on that).
But most of all, Bannon was the fourth witness — with the others being Mike Flynn, KT McFarland, and Jared Kushner — to Trump’s interactions with Russia during the Transition four years ago. He was, with Jared, the person who most consistently used his personal email to conduct discussions of back channels with Russia (though all four took measures to keep their actions hidden from the Obama Administration and other Transition team members).
And Bannon was, for testimony before HPSCI the transcript of which got shared with Mueller’s team shortly before they closed up shop, scripted to deny any discussion of sanctions (among other things). You could get a clear understanding of what the White House was trying to deny by the wording of the questions.
Mueller’s team would have had this script in time for Bannon’s grand jury appearance in January 2019. We know one thing that Bannon was asked about, and begrudgingly told the truth about, pertained to the campaign’s enthusiasm about WikiLeaks (something about which he had lied in the past and tried to again). But we don’t know what else he got asked; Stone’s prosecutors got just the part pertaining to the Stone prosecution unsealed.
At the time of his grand jury testimony and until quite recently, Bannon was represented by Bill Burck. At least with Don McGahn, whom Burck also represented, Burck did not share details of his testimony with Trump’s lawyers. We know that because Trump was blind-sided when he learned about the extent of McGahn’s testimony. If that’s true of Bannon as well, then it would mean that grand jury appearance has been a blind spot for Trump and his lawyers.
Until now. After Bannon threatened Chris Wray and Anthony Fauci with execution, Burck fired Bannon as a client. Bannon recently hired Robert Costello to represent him in his Build the Wall fraud case. On top of being the guy who brokered a pardon to Michael Cohen in an attempt to silence him, Costello’s also Rudy’s personal lawyer. So Costello now has privilege with both Bannon and Rudy, and Rudy has privilege (by dint of being Trump’s defense attorney) with Trump.
The old gang’s back together.
Thing is, if Bannon told the truth about sanctions in that grand jury appearance, it’ll make it a lot easier to unwind a bunch of expected pardons, because Bannon’s testimony could be used to push Flynn, McFarland, Jared, and Trump himself to tell the truth about what they tried with Russia four years ago, exposing each to a fresh perjury charge they would no longer be pardoned for. Even if Biden’s Attorney General was disinterested in that, I expect there to be more transparency about these issues going forward.
That makes Bannon one of the most interesting, if not the most interesting, pardon candidates, because he knows where all the bodies are buried, but he also told the truth, once.
https://www.emptywheel.net/wp-content/uploads/2020/05/Steve_Bannon_by_Gage_Skidmore.jpg587440emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2020-12-19 03:19:412020-12-19 17:26:09How Do You Solve a Problem Like Steve Bannon?
