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The Roger Stone Prosecution Was One Step in an Ongoing Investigation

I’ve spent the last few days going through the warrants released the other day in detail. This post attempts to summarize what they show about the Stone investigation.

First, understand the scope of this release. According to a filing the government submitted a year ago, they considered the media request to apply to, “warrants to search Stone’s property and facilities [and] other warrants that were executed as part of the same line of investigation” obtained under both Rule 41 and Stored Communication Act. It does not include warrants from other lines of investigation that happened to yield information on Stone. That said, there is good reason to believe there are either filings that were entirely withheld, or that DOJ’s interpretation of what constitutes the “same line of investigation” is fluid.

In his order to release the files, Judge Christopher Cooper said that the individual redactions hide, “the private information of non-parties, financial information, and non-public information concerning other pending criminal investigations.” In the hearing on the release, the media coalition suggested that people who had testified at Stone’s trial should not be protected under the guise of privacy, and that seems to have been the standard adopted on redactions of names. In general, then, this post assumes that the redaction of names (such as Ted Malloch) protects the privacy of people who did not testify at trial, but the redaction of entire paragraphs (such as 7 paragraphs of boilerplate describing why Malloch was suspected to be involved) was done to protect ongoing investigations. In the list of warrants below, I’ve marked with an asterisk those that — either because they weren’t for Stone’s property or because they didn’t yield evidence relevant to the the obstruction charges he was prosecuted for — were not provided to Stone in discovery; I’ve based that on the list in this order (see footnote 2).

This investigation may well have started as a box-checking exercise, effectively checking whether John Podesta’s allegations that Roger Stone had learned of the hack targeting Hillary’s campaign manager ahead of time. It appears that Mueller’s team slowly came to believe that Roger Stone had gotten advance notice — and possibly advanced possession — of the Podesta email drop. Along the way, it ruled out one after another theory of how he did so.

Two of the most fascinating applications — one pertaining to an Israeli contact and another regarding someone apparently introduced to Stone by Charles Ortel — seem to have fully (the Israeli lead) or partly (the Ortel one) fizzled. (I base that on whether communications described in the affidavits continue to show up in later applications and whether entire paragraphs remain redacted.)

But the government still seems to believe that Stone worked with Corsi and Malloch on these issues. The government is obviously still trying to figure out whether the rat-fuckers and hoaxsters managed to optimize the release of the Podesta emails on October 7, 2016 to drown out the Access Hollywood drop. Mueller’s uncertainty on this point is something explained in redacted sections of the Mueller Report.

Along the way, Mueller developed two side prongs to the investigation: an examination of how Stone used social media to advertise WikiLeaks documents (it’s likely that investigation came to include ads that may have replicated themes being pushed by Russia and may have involved improper collaboration with the campaign), and the obstruction and witness tampering investigation Stone was prosecuted for.

More interesting still, in fall 2018, Mueller’s team started pursuing several leads (including the Ortel one), most of which — if the rule that entirely redacted paragraphs reflect ongoing investigation — continue to be investigated. Indeed, it appears that the prosecution of Stone for obstruction served partly as a means to initiate a prosecution against him, possibly entice him to flip against Trump or others, but perhaps mainly to obtain Stone’s devices in an attempt to get texts from 2016 to 2017 he had deleted, as well as the content of the encrypted communications he had sent using those devices. That is, the search, arrest, and prosecution of Stone appears to have been just one step in an ongoing investigation, an investigation that may be targeting others (including Julian Assange).

Identify the Malloch and Corsi connection (May 2017 to July 2018)

From May (when Mueller’s team first obtained subscriber records on Stone’s Twitter account) until November 2017, the investigation may have been little more than an effort to assess the spat between Stone and John Podesta over Stone’s August 21, 2016 “time in the barrel tweet.” After the team obtained Stone’s Twitter accounts, they moved to obtain the email accounts on which he conducted conversations started on Twitter. In November, Mueller got a warrant for his own team to access Julian Assange’s Twitter accounts (though the government surely already had obtained that). By December, Stone’s email accounts would have led Mueller’s team to believe that Ted Malloch, who was in London, could have been the back channel Stone kept bragging about, and so got his Gmail account. Mueller gagged Google to prevent Malloch from learning that. As a result, Malloch was presumably surprised when he arrived at Logan airport in March and was searched — a search conducted to obtain his phones, partly in an attempt to get to his UK-hosted email.

After Steven Bannon was interviewed in February 2018, Mueller’s team used that to obtain Stone’s Apple account; while not indicated anywhere in these applications, that’s where they would discover Stone and Michael Caputo had responded to a Russian offering dirt on Hillary.

In July, Mueller’s team obtained Jerome Corsi’s email and Apple accounts (there’s no record of them obtaining his Gmail account, but Corsi’s description of Mueller’s knowledge of his August 2016 searches suggests they got it). These affidavits begin to include a 7-page redaction that may indicate ongoing investigation into whether Stone or Corsi optimized the October 7 Podesta email release.

In this phase, the crimes being investigated expanded from just hacking to conspiracy to aiding and abetting. When Mueller got the Assange warrant, he added the illegal foreign contribution charge (one he declined to prosecute in a long redacted passage of the Mueller Report).

Collect materials on Stone’s overt social media campaigns (August 2018)

On May 18, 2018, Mueller’s team interviewed John Kakanis, who had worked on tech issues for Stone during the election. Afterwards, Mueller’s team obtained a series of warrants to collect the social media campaigns Stone had conducted on issues related to the Russian hack-and-leak. Those warrants included one for several Facebook accounts, a Gmail and Twitter account Stone used for such issues, and a Facebook and Gmail account under the Brazilian name Falo Memo Tio. Stone apparently did not receive the Facebook Falo Memo Tio account, and that warrant included a gag.

Track Stone’s efforts to obstruct the investigation (August 2018)

As Mueller’s team started interviewing people loyal to Stone, they became aware that Stone was communicating with witnesses. In May, Mueller obtained a pen register on Stone’s email accounts, allowing them to track with whom Stone was communicating. An August 3, 2018 warrant describes how investigators used those toll records to track such communications:

In the wake of Michael Caputo’s interview, he and Stone communicated via his Hotmail account (this would have been obvious from the story Stone seeded with the WaPo not long after)
After FBI Agents approached Andrew Miller, Stone emailed him via Gmail at least 10 times and a over a hundred times after he started challenging his subpoena
Stone emailed both Corsi and Credico in May 2018
Stone hired a private investigator to conduct a background investigation into someone who had done IT work for him during the campaign and research where he could serve Credico with legal process; in a June 2018 interview, the PI told investigators he and Stone primarily communicated via iPhone text messages

This affidavit included a section (¶¶64-77), based off texts with Credico stored in Stone’s iCloud account and texts published by the media, describing Stone’s threats to Credico.

In response to Stone’s overt efforts to thwart the investigation, Mueller obtained new warrants on Stone’s Hotmail, Gmail, and Apple accounts, which would yield a great deal of evidence for the obstruction and witness tampering charges against Stone. From this point forward, those charges would be included on warrants targeting Stone. In addition, from that point forward, the government appears to have sought to obtain Stone’s communications with those whose testimony he was obstructing (though the names of others besides Credico are redacted).

Starting with the next warrant, affidavits would include a section (¶¶87-89) comparing what Stone had told the House Intelligence Committee with what his own communication records showed, language that would form the backbone for the obstruction indictment.

Investigate the spooky stuff (May to August 2018)

There’s a number of things in these warrants that are difficult to assess. They didn’t show up in Stone’s trial, and it’s unclear whether they were leads that fizzled or reflect far more damning evidence. For example, the Israeli source who kept trying (and ultimately succeeded, once) to use Stone to get a meeting with Donald Trump doesn’t appear to have amounted to much, at least not with respect to the WikiLeaks releases.

A far more intriguing detail is the FBI claim — that lacks details that would be necessary to assess its accuracy — that Stone was searching for details of the Russian operation before those details were made public. The FBI made that claim twice. First, in a July 28, 2018 affidavit, they described that someone conducted searches on dcleaks and “guccifer june” using IP addresses that might be Stone, starting on May 17, 2016. The suggestion is that Stone may have had advance notice of those parts of the Russian operation. But some journalists learned of dcleaks after it got launched in early June and before it got more attention later in the summer. And the original Guccifer, Marcel Lazar, signed a plea agreement in late May 2016. Given Lazar’s claim to have hacked a Hillary server, it’s not unreasonable to think Stone would be researching him. A later warrant discusses someone — who again could be Stone — searching on Guccifer the day that the site would go up, but before it was public.

During the course of its investigation, the FBI has identified a series of searches that appear to relate to the persona Guccifer 2.0, which predate the public unveiling of that persona. In particular, on or about June 15, 2016 (prior to the publication of the Guccifer 2.0 WordPress blog), records from Google show that searches were conducted for the terms “guccifer” and “guccifer june,” from an IP address within the range 107. 77 .216.0/24.

The same rebuttal may be made — that this was about Marcel Lazar and not Guccifer 2.0. But evidence submitted at the trial suggests that Stone started anticipating the June 2016 dump on June 13, not June 15, making the claim more credible.

That July 28 warrant also describes several accounts that look like the FBI suspect Stone of sophisticated operational security. These include:

A Gmail account created on July 28, 2016 (right in the thick of Stone’s effort to find out what WikiLeaks had coming next) and used until July 5, 2017
A Gmail account created on October 26, 2016 and used until August 8, 2017
A Gmail account created on June 27, 2016 and used in conjunction with Craigslist to communicate

The latter effort may suggest some serious OpSec, a way for Stone to communicate publicly without using his own comms.

Finally, there are matching Gmail and Facebook accounts the government obtained warrants for on August 28, 2018. These were old accounts with the Brazilian name Falo Memo Tio. It appears the government was interested in activity on this account from the last four days before the election. They obtained a gag for the Facebook warrant.

Seal warrants investigating an Agent of Foreign Power (August to September 2018)

The government tried to obtain proof that it was Stone doing those searches on Guccifer — as well as evidence about whom he may have met with in early August 2016 when he told Sam Nunberg he had dined with Assange — by obtaining his cell site location for June 14 through November 15 of that year.

Minutes after FBI Agent Andrew Mitchell (who had been the primary affiant on Stone warrants starting in May 2018) obtained that cell site warrant, FBI Agent Patrick Myers obtained a warrant for a mail.com account that Guccifer 2.0 had created on July 23, 2016 and used until October 18, 2016 (the account kept receiving traffic until February 2017). There are several remarkable things about this warrant. While FBI Agents in San Francisco obtained a warrant for it in August 2016, and someone — possibly Mueller’s team — obtained the headers from the account in September 2017, the government had never before obtained a full warrant on the account for the entire span of its activity. So Myers, seven weeks after Mueller released an indictment against the GRU, obtained that information in hopes it would provide more information about how the Guccifer persona had shared files.

The other FBI Agents investigating Stone, to the extent they described such things, were located in either Washington Field Office or FBI Headquarters in DC. Myers, however, was stationed in Pittsburgh, where the investigation into GRU had been moved (they were also working on an indictment for GRU’s hacking of WADA).

Myers’ involvement with Stone extended beyond this curious warrant for Guccifer 2.0’s account. Over the course of the next month, he obtained warrants for:

Stone’s Liquid Web server storing old communications
A Twitter account obtained for redacted reasons
Multiple Twitter accounts obtained for redacted reasons
Multiple Facebook and Instagram accounts obtained for redacted reasons
Multiple Microsoft and Skype accounts obtained for redacted reasons
Multiple Google accounts obtained for redacted reasons
A Twitter account for someone, probably referred by Charles Ortel, whose name ends in R and who traveled back and forth from the UK who Stone suggested, in October 2016, was his intermediary
Multiple Google accounts obtained for redacted reasons

All those warrants, as well as the Guccifer 2.0 account one, included a gag. One of those gag requests — for a warrant for some Twitter accounts — explains,

It does not appear that Stone is currently aware of the full nature and scope of the ongoing FBI investigation. Disclosure of this warrant to Stone could lead him to destroy evidence or notify others who may delete information relevant to the investigation.

Almost all of the warrants (not the R Apple one or the last Google one, though the R Apple one lists perjury) list FARA and 18 USC 951 (Agent of a Foreign Power) as crimes under investigation somewhere in the warrant, though often only in the gag request. To be clear, that doesn’t mean the FBI was investigating Stone as an Agent of a Foreign Power. The Guccifer 2.0 gag says FBI “is investigating WikiLeaks and others” for the listed crimes.

And those gags say the complexity of the investigation means it may extend more than a year from late September 2018. That is, in September 2018, the government took steps in an investigation they expected to last until around the time that Stone would eventually be tried, in November 2019.

Use the obstruction charges to seize Stone’s phones (January to February 2019)

The existence of those mystery warrants, none of which were provided to Stone in discovery and all but the R Apple one which appear to be ongoing, puts what happened in January 2019 in a very different light. At a time when Bill Barr promised to shut down the Mueller investigation as soon as he was confirmed yet while Mueller was still pursuing Andrew Miller’s testimony, the government obtained warrants to search Stone’s two homes, his office, and three devices seized in those searches (the affiants for those warrants had filed for earlier warrants in the investigation).

Unlike all the other warrants, those 2019 warrants listed only the obstruction, false statements, and witness tampering charges against Stone, largely tracking the indictment against him.

Those warrants emphasize the government’s interest in obtaining texts that might be accessed only via a forensic search of Stone’s phone, including texts sent via Apple, but also Signal, Wickr, and WhatsApp texts, as well as ProtonMail emails.

Which is to say, in the context of the warrants released this week, the prosecution of Roger Stone appears to be just one step in a far more serious investigation, one that may well be ongoing.

The warrants

August 7, 2017: Stone’s Twitter Accounts

This warrant only lists CFAA as the suspected crime, and doesn’t allege that Stone was the suspect in it. It also relies on Stone’s own public comments about DMing with Guccifer 2.0 rather than materials already obtained from the account, just the first of an insane number of instances where Stone’s comments to the press formed the basis for probable cause.

September 11, 2017: Stone’s Hotmail Account

When people DMed Stone, he’d refer them to this Hotmail account for further discussion. This affidavit incorporates DMs to Assange (including the June 10, 2017 one discussing a pardon) obtained with the August 7 warrant. It also describes investigating information to be used in the Republican primary. This warrant extended the timeframe of the Stone investigation back to January 1, 2015.

October 17, 2017: Stone’s Gmail

This warrant builds on emails between Corsi and Stone about getting the WikiLeaks releases — including Stone’s “get to Assange” one — to establish the probable cause to get Stone’s Gmail account. Because Corsi would sometimes discuss Podesta related business via both Stone’s Hotmail and Gmail accounts, Mueller’s team was able to get Stone’s Gmail account. This warrant makes it clear the investigation focused on Corsi and Stone’s evolving attacks against John Podesta (which I’ve covered in real time from early on) from the beginning. It also includes a detail about Malloch — that he made a reference in January 2017 about phishing Podesta — that almost certainly remains in the redacted sections pertaining to Malloch.

*November 6, 2017: WikiLeaks and Assange’s Twitter Accounts

This affidavit uses Assange’s DMs with Stone — including another one about a pardon and migration from the WikiLeaks to the Assange account– as well as his sharing of a password with Don Jr to get Mueller his own copy of the WikiLeaks and Assange Twitter accounts, which the government surely already had. The affidavit includes new details on initial communications between Guccifer 2.0 and WikiLeaks, some of which I laid out here. One detail that’s critical is WikiLeaks asked Guccifer 2.0 for Clinton Foundation documents from early on, meaning WikiLeaks and Trump’s people agreed about what they considered the best possible dirt.

*December 19, 2017: Ted Malloch’s Gmail

In addition to extra details about campaign communications (both between Stone and the campaign, and with Malloch and the campaign), this includes details of Turkish dirt Malloch was offering. It reveals that Stone got RNC credentials for Malloch (where, evidence suggests, Stone had meetings where upcoming releases may have been discussed). In addition, because Stone’s order to Corsi to reach out to Malloch is so important, this affidavit has previously unknown details about those days. The affidavit describes Malloch writing Stone on November 13, 2016 while with Jerome Corsi, a detail that may get redacted in subsequent affidavits.

This warrant included a gag on the provider.

This is the first application that introduces Stone, Corsi, and Malloch at the beginning of each affidavit, a practice that would generally continue (though some of these changes reflect different FBI agents writing the affidavit).

March 14, 2018: Two Apple Accounts used by Stone

In February, Steve Bannon was interviewed for two long days. He was asked questions and shared texts with Stone. This application uses some of what he testified about to justify getting Stone’s Apple accounts. Stone had his iCloud account set to full backup, but later warrants would make clear that he had deleted some of his texts from 2016 and 2017. Stone would later blame Sam Nunberg for revealing that he had claimed to have “dined” with Julian Assange while visiting Los Angeles in early August 2016, but this application began to incorporate that email into boilerplate application language (a footnote on what Nunberg told investigators about this is redacted in later warrants).

This application added wire fraud to Stone’s potential charges; it’s not at all clear why.

*March 27, 2018: Malloch’s person and his baggage

This warrant allowed the FBI to search Malloch as he landed in Logan airport. It incorporated details from Malloch’s Gmail obtained in December and was at least in part an effort to get to his UK-based email.

*May 4, 2018: Mystery Israeli Gmail

Over the course of the year, an Israeli exploited a seeming pre-existing relationship with Jerome Corsi to get close to Stone and through him to Trump. The person appeared to offer Stone dirt to save Trump (this story provides some background on potential players). Stone seems to have been reluctant to meet at multiple times, as when he said, in May 2016, “I am uncomfortable meeting without Jerry,” claimed, in June, “to have been poisoned,” in July, came down “with a nasty cold and too ill to travel,” followed later with, “I have pneumonia and may be hospitalized later today,” claimed, “Matters complicated” in August. When, in early November, they tried again, the Israeli deferred claiming, “HAVING a TIA. Early Stroke. … Blury Virson.” These exchanges never show up in later filings, so it’s quite likely Mueller determined they were nothing (or at least, that Stone and Corsi had done nothing wrong) after obtaining the emails. Alternately, a redaction in the affidavit may suggest the Israeli in question got referred and some kind of investigation is ongoing. This warrant included a gag on the provider.

*July 12, 2018: Jerome Corsi’s CSC Holdings, Windstream, and Apple accounts (second version)

This adds language about Russian hacking after the initial compromise (including the September hack of the AWS server). It includes 7 paragraphs of language from after the election that is redacted, possibly because it remains under investigation. This Stone filing describes four of those paragraphs as pertaining to Corsi taking credit for optimizing the Podesta release and Malloch introducing Corsi to Assange after the election (see this post). Some of the redactions (probably the Malloch introduction) repeats the “phishing Podesta” quip. This warrant included a gag on the provider. It limited the scope of the warrant to June 15 through November 10, 2016 and included only CFAA and conspiracy in the crimes being investigated.

July 27, 2018: Roger Stone’s OpSec emails

This warrant obtains the search histories for 3 Gmail accounts Roger Stone set up, possibly for OpSec purposes. They include:

Target Account 1 created on July 28, 2016 and used until July 5, 2017
Target Account 2 created on October 26, 2016 and used until August 8, 2017
Swash Buckler Account created on June 27, 2016 and used to communicate via Craigslist ads

Between May 17, 2016 and June 15, 2016, the affidavit suggests, Stone may have conducted Google searches for DCLeaks and Guccifer (which could be 1 or 2) prior to the publication of the Guccifer 2.0 blog. The FBI connected them to Stone via the IP addresses he used to access Twitter and Facebook, something they would continue to investigate. The affidavit also reveals that Stone deleted the search history for a different Google account between January 18 and July 23, 2016.

August 2, 2018: Roger Stone marketing Facebook accounts

This warrant gets three of Stone’s Facebook accounts, two of which include advertisements pertaining to WikiLeaks or Russia (the description of the third is redacted). Stone used this warrant when signaling to his co-conspirators what was in his warrants, so redacted details are available here. The biggest redaction for an ongoing investigation pertains to whether Corsi and Stone affected the release of the Podesta emails and Malloch offering to set Corsi up with Assange after the election.

August 3, 2018: Renewed warrants for Apple, Hotmail, and Gmail

Partly because the way Stone worked the press and aired the threats he had made against Randy Credico, it became clear he was tampering or comparing notes with witnesses (also including Jerome Corsi, Michael Caputo, and Andrew Miller, as well as one other witness that Stone hired a private investigator to investigate). That gave Mueller the excuse to get new warrants on Stone’s main email and text accounts to get those conversations. This request expanded the focus to include Credico and others (the names of the others are redacted but are likely those with whom Stone was trying to tamper). This warrant also adds obstruction and witness tampering to the crimes being investigated.

August 8: Warrants for a Gmail and Twitter account Stone used for social media campaigns (Twitter)

On May 18, 2018, Mueller’s team interviewed John Kakanis about work he did for Stone during the campaign. He described how Stone conducted social media campaigns — including materials relating to WikiLeaks and the Russian investigation — which both of these accounts played a role in.

August 20, 2018: Warrant for Stone’s cell site information from June 15 to November 15, 2016

Citing the searches probably made by Stone for Guccifer and dcleaks information before those accounts were made public, the government obtained cell site information for the period from the day that the Guccifer 2.0 account first started to a day the week after the election. The affidavit also explained wanting to know if Stone was with the Trump campaign at various times and where he was in Los Angeles when he told Sam Nunberg he had dined with Assange. Note, this affidavit suggests Stone did a Google search on “Guccifer” on June 15, 2016 before the site went up.

*August 20, 2018: Warrant for Guccifer 2.0’s second email account

The same day the government got a warrant to find out where Stone had been when during the election, they got a renewed warrant for one of the email accounts associated with the Guccifer 2.0 site. They had previously gotten everything from that email account in “approximately” August 2016, and then gotten headers for any emails sent in “approximately” September 2017. Getting the full content would give it additional details on any activity with the account between the original warrant — August 2016 — and the final login on October 18, 2016, as well as any email traffic subsequent to that. The stated purpose for obtaining this information was to “assist in identifying additional means by which Guccifer 2.0 shared stolen documents with WikiLeaks and others.” Patrick Myers, an FBI agent located in Pittsburgh (and therefore presumably someone more closely involved in the GRU investigation) obtained this warrant. This warrant included a gag on the provider. Parts of this warrant invoke 18 USC 951 — agent of a foreign power charges — in addition to the other crimes under investigation.

*August 28, 2018: Warrant for Stone’s Falo Memo Tio Facebook account

August 28, 2018: Warrant for Stone’s Falo Memo Gmail account

This incorporates details about Stone’s Facebook accounts used to push the hack-and-leak, found in the earlier August Facebook warrants. It seeks to obtain an old Stone Facebook account that got advertising traffic right before the election. These were Stone-specific warrants that was not turned over in discovery, suggesting it returned nothing pertaining to his prosecution. The Facebook warrant, but not the Gmail one, included a gag on the provider; it also was not included in the warrants provided to Stone in discovery.

August 28, 2018: Warrant for Stone’s rogerstone@mail account

This email account–and the fact that he had been using it to tell his cover story about WikiLeaks–showed up in his Gmail account.

*September 24, 2018: Warrant for Stone’s Liquid Web server

This was a server Stone used to encrypt and back up his data in case the government seized his computers. It was not provided to Stone in discovery so may not have revealed any interesting information. This is the first of these affidavits written by Patrick Myers, an FBI agent located in Pittsburgh.

*September 26, 2018: Mystery Twitter Account

*September 27, 2018: Mystery Facebook and Instagram Accounts

*September 27, 2018: Mystery Microsoft include Skype

*September 27, 2018: Mystery Google

On September 26 and 27, Mueller’s team obtained a bunch of new warrants. All were obtained by Myers, the Pittsburgh FBI agent. All included gags on the provider. Most entirely redact the description of why the FBI needed the accounts, suggesting these investigations are ongoing. They also invoke 951 and FARA in the sealing request.

*September 27, 2018: Mystery Twitter Accounts 2

Like the other warrants obtained on September 27, the explanation for targeting these Twitter accounts is sealed. Like them, Myers obtained the warrant. Like those, it includes a request for sealing that lists 18 USC 951 — acting as an unregistered foreign agent — and FARA. Unlike the other warrants from that day, the justification for sealing this one explains that “It does not appear that Stone is fully aware of the full scope of the ongoing FBI investigation.”

*September 27, 2018: Mystery Apple ends in R

Then there’s another odd September 27 warrant application. Like the other warrants obtained on September 27, Myers wrote the affidavit for this one, and it included a gag. Unlike the others, however, the explanation for targeting this account is not entirely redacted. The affidavit explains that,

On August 17, 2016, someone (Charles Ortel?) introduced Stone and R
Between that introduction and November 3, 2016, Stone and R were in contact 60 times
On October 7, R and Stone spoke during the time between when WaPo alerted him to the Access Hollywood Video and the time it dropped
On October 10, R and Stone probably met for pizza on the Upper East Side
On October 12, Stone claimed that he had met his intermediary, who traveled back and forth to London, on October 10

The list of information targeted includes an additional name, probably that of Charles Ortel.

*October 5, 2018: Mystery Multiple Googles

Like the September 27 warrants, the explanation for targeting these accounts remains entirely redacted. Like them, the affidavit was written by Myers and sealed under a Kyle Freeny request. Unlike those, however, this one does not list 951 and FARA in the request to seal. This affidavit also does not include the contacts with “R” in the narrative about October 7, suggesting that lead may have fizzled.

January 24, 2019: Stone’s NY property

January 24, 2019: Stone’s FL property

January 24, 2019: Stone’s FL office

February 13, 2019: Three of Stone’s devices

The warrants for the searches in conjunction with Stone’s arrest on January 24 are fairly similar (one agent wrote the one in NY, another did the two in FL), except for the descriptions of the premises, facilitated by how much media Stone has done at these locations.

The affidavits themselves largely track the indictment, though showing where the government had sourced the evidence that ultimately got introduced at evidence at trial. The affidavits add people named in the indictment — Rick Gates, Steve Bannon, and Erik Prince (whose description is redacted) — premised on the import of proving that Stone had lied about telling these people about his purported link to WikiLeaks. As compared to the earlier warrants, these affidavits have a closer focus on the release (and reliance, exclusively, on the Crowdstrike and GRU indictment attribution, which is something Stone litigated and which I may return to).

These warrants make it clear that one of the things the government was doing was searching Stone’s homes for all his electronic devices in hopes of getting texts from 2016 to 2017 he deleted and his encrypted communications, which include:

WhatsApp, downloaded on October 5, 2016 to talk to Erik Prince
Signal and ProtonMail downloaded on August 18, 2016; Stone used Signal to talk to Margaret Kunstler
Wickr downloaded on August 5, 2017

Update: One detail I forgot to add about the 2019 search warrants: They explain that Stone responded to a grand jury subpoena in November 2018 asking for the texts he had with Credico, after he told the press — specifically, Chuck Ross, for a credulous story that spun Stone’s like — that his attorney had them. It’s one of the most hilarious ways that Stone’s blathering to the press hurt him.

Update: One more detail about the 2019 search warrants. The FBI was specifically looking for a “file booklet” recording a meeting Stone had with Trump at Trump Tower during the 2016 election.

60. On or about 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 formally 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. [redacted] provided information about a meeting at Trump Tower between Trump and Stone during the time [redacted] worked for him, to which Stone carried a “file booklet” with him. Stone told [redacted] the file booklet was important and no one should touch it. [redacted] also said Stone maintained the file booklet in his closet.

61. On or about December 3,2018, law enforcement conducted an interview of an individual (“Person 2”) who previously had a professional relationship with a reporter who provided Person 2 with information about Stone. The reporter relayed to Person 2 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.”

Republicans OUTRAGED That National Security Threat Was Treated Like National Security Threat

I’m in the middle of a very deep dive into the Roger Stone files — which show parts of the investigation remain ongoing — so I’m just going to note two developments that will ensure that two of Trump’s criminals avoid prison.

First, Stone has filed for an appeal of Amy Berman Jackson’s order denying him a new trial. Normally, his appeal would be so weak that he’d be required to report while the appeal is heard. But even in normal circumstances, the Bureau of Prison takes a while to assign new prisoners. And in the case of a non-violent 67-year old like Stone, I imagine BOP will wait to make an assignment until their COVID problem abates. They have enough problems with all the vulnerable prisoners in their COVID death traps now, they aren’t in a big rush to put more in there. [Update: Per Ali Dukakis, BOP has indeed told Stone he won’t have to report right away.]

Meanwhile, Sidney Powell has succeeded wildly with her ploy to undermine the prosecution of Mike Flynn in the press, getting both the NYT and WaPo to present her case with little context. Last week and yesterday she got a released a bunch of documents that the government turned over as part of Jeffrey Jensen’s second-guessing of the prosecution. Those files show:

There was a discussion about halting an ongoing investigation into Mike Flynn Jr after his dad pled guilty, but there were no promises made (if there had been, it would add two more lies to the sworn lies Mike Flynn told). The emails make it clear that Covington believed the threat of investigation was real.
In advance of the interview of Mike Flynn, the FBI discussed how to handle an investigation into why the National Security Advisor had called up Russia and told them not to worry about the punishment for their interference in our election. They brainstormed how to respond to a bunch of questions he didn’t end up asking. They had been planning to give him a warning about false statements; they did not give that warning. They had discussed showing him the transcript that showed he lied; they did not do that.

Neither of those things are very interesting. The first shows the opposite of what Sidney Powell has claimed (that is, no promises about Jr were made). The second shows that they discussed how to handle a sensitive interview before it happened; we knew that. In addition, because those discussions ultimately didn’t govern the investigation, they would not have been pertinent to the interview.

The thing the frothy right is excited about is that Bill Pristap took notes reflecting a discussion what would happen given all the evidence that the National Security Advisor had called up Russia and told them not to worry about the punishment for their interference. The question was whether they wanted to get him to admit his wrongdoing, in which case (they assumed) he’d be fired, or whether he would lie in which case they might have to prosecute him.

The frothy right believes this is proof that Flynn was ambushed in a perjury [false statements] trap, which I guess means they now agree Flynn lied his ass off.

Somewhere, the circumstances have gotten missed. Not only did the FBI discover that Mike Flynn had called up a hostile foreign government and told them not to worry about being punished for tampering in our election. But it was also already public that Mike Flynn may have been secretly working for Turkey while he was claiming to represent Trump’s national security interests. Flynn would go on to testify, under oath and before a grand jury, that indeed, he had been knowingly pursuing a secret deal with Turkey at the time he sat in on Trump’s first national security briefing. The entire time, he testified, he knew that he was really working for Turkey even though he and his firm went to some efforts to hide that fact.

The FBI might be excused for believing that Flynn would be treated according to one of two ways: firing or prosecution. Because they had Flynn on tape calling up a country that had just attacked our own and told them not to worry about being punished. And they had good reason to believe he was still hiding details about having worked for a frenemy government during a period he retained security clearance. In a sane world, when there’s clear evidence the National Security Advisor has done those things, firing or prosecution are the most obvious options.

In Trump’s world — in the world of the entire Republican party, it seems — those aren’t the only two options. In Trump’s world, it is totally natural to keep someone in charge of the entire country’s national security even after he had called up a country that had just attacked us and said no big deal while actively hiding his relationship with another foreign country.

And that is why Mike Flynn likely won’t ever go to prison: because in Trump’s world, the guy who helps out the country that just attacked us is a hero, not a national security threat.

Update: Here’s the next installment of stuff that Powell claims is damning but which proves her conspiracy theories wrong. It shows that on January 4, 2017, FBI was literally in the process of closing the investigation into Flynn (proving they didn’t set him up and assessed him accurately) when they discovered that he had called up Russia and undermined sanctions.

Seven Days after Julian Assange Helped Trump Win, Roger Stone Started Working on a Pardon

April 29, 2020/32 Comments/in emptywheel /by emptywheel

Last night, the government released a slew of warrants associated with but not limited to Roger Stone. I’ll have much more to say about them going forward. But I’d like to focus on what they say about discussions of a pardon for Julian Assange.

I have previously noted that there was an effort — including but not limited to Stone — to get Assange a pardon from 2017 through early 2018. Randy Credico’s sworn testimony at Stone’s trial made it clear this effort started in 2016 (which is one reason WikiLeaks’ efforts to pretend pardon discussions only occurred later in 2017 are so cynical). Indeed, Credico’s hope of getting a pardon for Assange is one of the reasons Stone’s threats against him worked as long as they did.

As a number of people have observed, the affidavits against Stone incorporate a paragraph explaining that, on June 10, 2017, Stone DMed Assange about a pardon.

On Saturday, June 10, 2017, @RogerJStoneJr sent a direct message to @JulianAssange, reading: “I am doing everything possible to address the issues at the highest level of Government. Fed treatment of you and WikiLeaks is an outrage. Must be circumspect as experience demonstrates it is monitored. Best regards R.”

But this effort started much earlier than that.

When Credico testified about introducing Stone to Kunstler in 2016 at trial (Stone would have known Kunstler was close to Credico because Credico bcc’ed Stone on an email he sent to the lawyer), he was vague about when that happened.

Q. What did you write to Mr. Stone on May 21st, 2018?

A. “Go right ahead. She’s not Assange’s lawyer.”

Q. I’m sorry. Below that. Let’s start at the first message, “You should have.” All the way at the bottom.

A. Where? Where am I? Here, “You should have.”

“You should have just been honest with the House Intel Committee. You’ve opened yourself up to perjury charges like an idiot. You have different versions. Maybe you need to get into rehab and get that memory straight.”

Q. What did Mr. Stone respond?

A. I don’t see it here.

Q. Just above that, do you see —

A. Oh, yes. “You are so full of S-H-I-T. You got nothing. Keep running your mouth and I’ll file a bar complaint against your friend Margaret.”

Q. And when he says “your friend Margaret,” who is he referring to?

A. Margaret Ratner Kunstler.

Q. Had you put Mr. Stone directly in touch with Ms. Kunstler after the election?

A. Yes, I did.

Q. And why had you done that?

A. Well, sometime after the election, he wanted me to contact Mrs. Kunstler. He called me up and said that he had spoken to Judge Napolitano about getting Julian Assange a pardon and needed to talk to Mrs. Kunstler about it. So I said, Okay. And I sat on it. And I told her–I told her–she didn’t act on it. And then, eventually, she did, and they had a conversation.

Credico didn’t even admit, at trial, that this happened before the end of 2016. But it appears to have started immediately after the election.

A warrant the government obtained to search the devices they seized when they searched Stone’s home reveals that on November 14, 2016, Stone switched from using an iPhone 5s to an iPhone 7.

The next day, Stone started communicating using Signal with Margaret Kunstler.

According to records from Stone’s iCloud account, a copy of the Signal application was downloaded to an iPhone registered to Stone on or about August 18, 2016. Additionally, text messages recovered from Stone’s iCloud account revealed that on or about November 15, 2016, Stone sent an attorney with the ability to contact Julian Assange a link to download the Signal application. 15 Approximately fifteen minutes after sending the link, Stone texted the attorney, “I’m on signal just dial my number.” The attorney responded, “I’ll call you.”

15 This attorney was a close friend of Credico’s and was the same friend Credico emailed on or about September 20, 2016 to pass along Stone’s request to Assange for emails connected to the allegations against then-candidate Clinton related to her service as Secretary of State.

Stone deleted a year of texts from this phone.

Finally, one more detail that’s in the generic affidavit. The investigation into Stone focused closely on whether, after getting a heads up from WaPo about the imminent Access Hollywood video story, Stone got WikiLeaks to drop the Podesta emails (Mueller’s team appears to have gotten an understanding of whether and how this happened in September 2018, which I’ll return to). Certainly, Steve Bannon gave Stone credit; his executive assistant, Alexandra Preate, commended Stone’s “well done” hours later.

What these warrants reveal, however, are that Stone had an unexpected lunch meeting with Trump the next day, October 8, 2016, that forced him to reschedule a meeting with Jerome Corsi.

On or about October 8, 2016, STONE, using Target Account 3, messaged CORSI, “Lunch postponed-have to go see T.” CORSI responded to STONE, “Ok. I understand.”

One of the things that Bill Barr’s DOJ has withheld thus far in the the release of Mueller-related 302s are the ones in which Mike Flynn explained that, in the wake of the Podesta release, the campaign considered reaching out to WikiLeaks.

The defendant also provided useful information concerning discussions within the campaign about WikiLeaks’ release of emails. WikiLeaks is an important subject of the SCO’s investigation because a Russian intelligence service used WikiLeaks to release emails the intelligence service stole during the 2016 presidential campaign. On July 22, 2016, WikiLeaks released emails stolen from the Democratic National Committee. Beginning on October 7, 2016, WikiLeaks released emails stolen from John Podesta, the chairman of Hillary Clinton’s 2016 presidential campaign. The defendant relayed to the government statements made in 2016 by senior campaign officials about WikiLeaks to which only a select few people were privy. For example, the defendant recalled conversations with senior campaign officials after the release of the Podesta emails, during which the prospect of reaching out to WikiLeaks was discussed.

Around the same time the campaign was having this discussion, then, Stone met personally with Trump.

So, yes, in June 2017 Stone DMed Assange about a pardon.

But more interesting is that the day after the Podesta releases, Stone met with Trump. And then, just days after Assange helped Trump win, Stone reached out to one of Assange’s lawyers.

The COVID Delay Should Give Reggie Walton First Pass at the Roger Stone Unsealing

April 21, 2020/41 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

Back when Reggie Walton ordered DOJ to give him a copy of the Mueller Report to review the exemption claims, I suggested that Judge Walton was unlikely to make much more public, except that his review might speed the process of liberating the material on Roger Stone that had been withheld under Amy Berman Jackson’s gag.

Be warned, however, that this review is not going to lead to big revelations in the short term.

There are several reasons for that. Many of the most substantive redactions pertain to the Internet Research Agency and Roger Stone cases. Gags remain on both. While Walton is not an Article II pushover, he does take national security claims very seriously, and so should be expected to defer to DOJ’s judgments about those redactions.

Where this ruling may matter, though, is in four areas:

DOJ hid the circumstances of how both Trump and Don Jr managed to avoid testifying under a grand jury redaction. Walton may judge that these discussions were not truly grand jury materials.

DOJ is currently hiding details of people — like KT McFarland — who lied, but then cleaned up their story (Sam Clovis is another person this may be true of). There’s no reason someone as senior as McFarland should have her lies protected. All the more so, because DOJ is withholding some of the 302s that show her lies. So Walton may release some of this information.

Because Walton will have already read the Stone material — that part that most implicates Trump — by the time Judge Amy Berman Jackson releases the gag in that case, he will have a view on what would still need to be redacted. That may mean more of it will be released quickly than otherwise might happen.

In very short order, the two sides in this case will start arguing over DOJ’s withholding of 302s under very aggressive b5 claims. These claims, unlike most of the redactions in the Mueller Report, are substantively bogus and in many ways serve to cover up the details of Trump’s activities. While this won’t happen in the near term, I expect this ruling will serve as the basis for a similar in camera review on 302s down the road.

But because of the COVID-related delay in Walton’s review, it’s likely he’ll make a first pass on the Roger Stone declassification, making it far harder for Bill Barr to politicize the release like he has the 302s.

Walton issued his order commanding DOJ to give him an unredacted version of the Mueller Report on March 5. DOJ complied with that order and delivered the report (and two other pages at issue in the lawsuit) on March 30. However, that same day, Walton issued a minute order stating that, because of Chief Judge Beryl Howell’s order suspending operations at the courthouse, he would be unable to start the review until April 20.

However, in light of the Chief Judge Howell’s March 16, 2020 Order Regarding Court Operations in Exigent Circumstances Created by the COVID-19 Pandemic, Standing Order No. 20-9 (BAH), the Court’s review of the unredacted version of the Mueller Report is unable to occur until the Court resumes its normal operations on April 20, 2020, unless the Court’s normal operations are further suspended due to the COVID-19 pandemic. Signed by Judge Reggie B. Walton on March 30, 2020.

He even suggested that if operations were further suspended (as they have been), the review might be further delayed — though EPIC made a case that the review is an essential function and should start on April 20 (that is, yesterday).

EPIC respectfully submits that in camera review of the Mueller Report is an essential function warranting the Court’s prompt attention.

[snip]

Time is of the essence in this case. It is vital that the American citizenry know the full extent of Russian interference in the 2016 presidential election before casting their votes in the 2020 presidential election, now just 200 days away. And it is vital that there be judicial review of the DOJ’s asserted exemptions that prevent public release of relevant information contained within the Mueller Report.

Walton has not indicated in the docket whether he started the review yesterday or not.

That said, once he does get around to the review, it will be far more substantive than it otherwise might. That’s because, days before Walton said he would conduct this review, ABJ issued her opinion denying Stone’s bid for a new trial. In her order, she released Stone from her gag.

Also, as of the date of this order, the defendant and his attorneys are hereby released from the media communication order of February 15, 2019 [Dkt. # 36], the minute order of February 21, 2019, and the order of July 17, 2019, [Dkt. # 149], although all other Court orders, including those related to the confidentiality of materials, and all other conditions of the defendant’s release, remain in place.

That means several of the exemptions invoked to hide Roger Stone’s efforts to optimize the WikiLeaks releases — everything under a b7A or b7B exemption starting on page 52 and in some other places — no longer apply. And given the way the timing has worked out, Reggie Walton will have first dibs on deciding whether President Trump’s personal involvement in Stone’s effort is entitled to any privacy consideration.

It may take Walton a while to get through this stuff (particularly if the 71-year old judge decides COVID threats prevent him from starting). But he should be able to get first review of what gets unsealed now.

Meanwhile, there’s another imminent source of more transparency coming.

Back in February 2019, a bunch of media outlets moved to get the warrants,

associated with the application for, issuance of, and returns regarding warrants related to the Russia Investigation generally and the Stone prosecution in particular.

The government interpreted that request this way:

It is unclear whether the movant’s request is limited to warrants issued pursuant to Rule 41 or also includes warrants under the SCA. In an abundance of caution, the government is treating the request as covering both categories. It is similarly unclear whether the reference to “warrants relevant to the Prosecution of Roger J. Stone, Jr.” means only warrants to search Stone’s property and facilities or includes other warrants that were executed as part of the same line of investigation. Again, in an abundance of caution, the government is treating the request as covering both categories.3

3 The government does not understand the request to include warrants that were not related to Stone or that line of investigation but that merely happened to yield evidence that concerns Stone and is being provided to him in discovery.

Back in January, the government said it could release the materials most closely related to Stone.

MR. KRAVIS: Yes, Your Honor. We believe that there are some materials in the warrant affidavits that can now be unsealed — in the affidavits that are responsive to the access request that can now be unsealed in light of the conclusion of the Roger Stone trial.

THE COURT: All right.

MR. KRAVIS: However, there are other materials in those warrant affidavits that the government believes should remain under seal either because those materials relate to other pending investigations — that is, investigations other than the one that culminated in the Roger Stone trial — and materials that implicate the privacy and reputational interests of uncharged third parties. And so the government’s request at this point is for the Court to set a deadline — the government would propose 60 days — for the government to go back and review the search warrant affidavits that are responsive to the movant’s access requests and make a recommendation to the Court as to which materials can be unsealed and which materials should remain under seal. And then the Court would have an opportunity to hear from Mr. Stone on that point, and then the Court could decide how to handle the matter from there.

Based on that schedule, the government submitted 33 exhibits — each of them, presumably, a warrant application — under seal for the court’s review. After Judge Christopher Cooper ordered the government to give Stone a copy of the warrants so he could argue to redact more of the affidavits, the government asked that the protective order from the trial extend to these warrants because, “not all of them were previously provided to counsel for Mr. Stone in criminal discovery.”

After getting a COVID-related extension, Stone and his lawyers have until Friday to object to the privacy and grand jury related redactions in the warrants in question.

The upcoming release of warrants targeting Stone is interesting not least because we may see why he was investigated for hacking and wire fraud (though those are the kind of affidavit filings Stone once said they would fight to keep sealed). But filings in his case (this ABJ opinion is the most detailed) described that he received just 18 warrants in discovery. Which means there are 16 warrant applications that Stone had not seen before a few weeks ago, which either targeted people like Jerome Corsi and Randy Credico (and maybe even Steven Bannon and Ted Malloch), or of a scope previously unknown.

In the pandemic era, things have a way of getting delayed. And Stone has made it clear he’ll try to hide details explaining why the FBI thought he might have liability under the CFAA.

But as we’ve been focused on COVID, the release of Stone-related materials in the wake of his trial has inched closer.

Update: Judge Walton scheduled a status conference for June 18, which will likely be the earliest that we might learn what else he’ll release. And Stone submitted their response on the 33 warrants this morning, under seal.

Update: Stone did not object to the government’s redactions, so Judge Cooper ordered the government to release the warrants (there are actually 33, not 34 as I initially wrote) on Tuesday. The redactions include non-public information on pending investigations.

Trump Blames Mueller for Woes Mike Flynn Brought on Himself

April 20, 2020/18 Comments/in 2016 Presidential Election, emptywheel, Mueller Probe /by emptywheel

Yesterday, in his COVID rally, Trump was asked whether he was thinking of pardoning Paul Manafort or Roger Stone so they’re not exposed to coronavirus in prison.

I just tell you this. Roger Stone was treated very unfairly. Paul Manafort — the black book turned out to be a fraud — we learned that during the various last number of weeks and months, they had a black book that came out of Ukraine, turned out to be a fraud. Turned out to be a fraud — they convicted a man — turned out to be a fraud! General Flynn was a highly respected person, and it turned out to be a scam on him. The FBI said, he didn’t lie. And Mueller’s people wanted him to go to jail. So what am I gonna do? You’ll find out what I’m gonna do. I’m not gonna say what I’m gonna do. But I’ll tell you the whole thing turned out to be a scam and it turned out to be a disgrace to our country. It was a take-down of a duly elected president. And these people suffered greatly. General Flynn! I mean, what they did to him! And even the FBI said, and they had some — nobody bigger fan of the FBI than me at the level of the people that really matter. But the top of the FBI was scum. And what they did to General Flynn — and you know it and everybody knows it — was a disgrace.

Unsurprisingly, all of these claims are lies.

Roger Stone was treated unfairly, but because Billy Barr intervened to override a guidelines sentence. Barr himself said the prosecution was righteous.

The black book was not proven to be a fraud. More importantly, however, it wasn’t used in the Manafort prosecution. And he pled guilty to all the money laundering alleged.

But the Flynn claim is perhaps most ridiculous of all, because it obscures why Flynn faces prison time, absolving Fox News for the role it played.

Mueller’s people didn’t want prison time for Flynn (indeed, their sweetheart deal for him was probably one of the mistakes they made). They recommended probation when he was first set to be sentenced in December 2018.

And then Flynn stepped in it by insinuating he had been ambushed in an FBI interview he willfully took and believed to be friendly.

Then Flynn stepped in it again when he fired Rob Kelner and decided to renege on his promises to cooperate against Bijan Kian.

And then he stepped in it again by letting Sidney Powell convince him to withdraw his guilty plea, multiplying his lies under oath.

Flynn may yet avoid a prison sentence and if he gets one and if BOP actually makes him report during the coronavirus Trump likely will pardon him. But Trump will only be pardoning Flynn for his own stupidity that led him, at each stage of the game, to expose himself to more and more legal danger.

Liberate All Trump’s Criminals to Sustain the Lockdown

April 17, 2020/12 Comments/in 2016 Presidential Election, 2020 Presidential Election, COVID-19, Mueller Probe /by emptywheel

According to multiple reports yesterday, Michael Cohen will soon be released to serve out the remainder of his prison sentence in home confinement.

The federal Bureau of Prisons has notified Michael Cohen, President Donald Trump’s former personal attorney, that he will be released early from prison due to the coronavirus pandemic, according to people familiar with the matter and his lawyer.

Cohen is serving a three-year sentence at the federal prison camp in Otisville, NY, where 14 inmates and seven staff members at the complex have tested positive for the virus.

Cohen was scheduled for release in November 2021, but he will be allowed to serve the remainder of his sentence from home confinement, the people said. He will have to undergo a 14-day quarantine at the prison camp before he is released.

Cohen was notified on Thursday of his pending release, and his lawyer, Roger Adler, confirmed it to CNN.

As Josh Gerstein has described, sometimes these promises don’t work out.

The spouse of an inmate at one of the hardest-hit federal prisons, in Elkton, Ohio, described a puzzling transfer of prisoners into pre-release quarantine and then out again.

Tammy Hartman said her husband Pete, who’s due out of prison in August of next year, was one of 56 inmates whose names were called on Saturday to report for quarantine so they could be sent on home confinement.

“They were all told: you’re going home,” she said. But on Wednesday, 54 of the men were sent back to their cells. “They told them, sorry, you’re not going anywhere, because they’d approved only two of them to leave.”

“I actually thought he was coming home,” Hartman said of her 59-year-old husband who — like other prisoners mentioned in this story — is serving time on drug charges. “I canceled all his subscriptions to magazines because I thought he’d be home in 14 days… I’m trying to hold it together.”

Which is, I guess, why Cohen’s lawyers promptly made this public — to make it harder for BOP to renege.

Otisville prison is one of the federal prisons with a growing cluster — currently, officially, with 14 prisoners and 7 guards testing positive. So it is an appropriate places for BOP to attempt to move older, non-violent prisoners. That said, Cohen is not actually that old (just 53) and as far as is public, his health is fine.

A far better case might be made that Paul Manafort should be sent to home confinement. He’s 71 and wasn’t all that healthy when he first went to jail almost two years ago, and he has continued to have health problems since then. His attorney, Kevin Downing, cited those health problems in a letter to BOP asking for his release. Curiously, Downing appears to be thinking exclusively in terms of internal appeals, rather than appealing to a judge, which suggests he thinks his client stands a better chance if someone working for Bill Barr makes the decision (which certainly worked to keep him out of Rikers when he was arraigned in New York). Perhaps that’s because the prison he’s in, Loretto, has had no reported cases yet. Manafort has been quarantining since the end of March, so can be sent home if there are cases there.

Paul Manafort is a shithole who sold out the candidate he worked for and his own country. He got fabulously wealthy fronting for dictators and other sleazebags, and stiffed the American taxpayers on the blood money he got in exchange.

But BOP should seriously consider moving him to home confinement for as long as the COVID outbreak lasts. Manafort was not nor should he have been sentenced to a death for his crimes. And if you can’t support that move for his miserable humanity, then do it for others he might infect, like the far poorer guards who tend to him.

Cohen and Manafort are not the only Trump criminals who may dodge full prison terms because of this virus. As bmaz noted, yesterday Amy Berman Jackson rejected Roger Stone’s bid for a new trial. While BOP doesn’t assign spots to people all that quickly in any case, for new non-violent prisoners, BOP is not rushing people into incarceration. And Stone, at 67, is also old enough to be considered a higher risk.

So rather than starting rebellions against stay-at-home orders in Michigan, Minnesota, and Virginia, Trump should encourage Bill Barr to liberate his criminal co-conspirators, along with the similarly situated men of color incarcerated with them.

But the only reason to remove Paul Manafort from an environment where he’d be more likely to contract the virus is if there’s a shut-down. So if Trump wants his criminals liberated — or wants Stone to remain out of prison long enough for the post-election pardon — then he should be rooting for a continued shut-down.

Roger Gets Stoned by Amy Berman Jackson

April 17, 2020/30 Comments/in 2016 Presidential Election, Department of Justice, Law, Mueller Probe /by bmaz

I left a comment earlier about the decision by Judge Amy Berman Jackson of the US District Court for the District of Columbia in the Roger Stone case. ABJ denied the Stone motion on Stone’s motion for new trial, and it was scathing. As it should have been.

You might remember the transcript of Stone’s sentencing on February 20, 2020 and his lame motion for ABJ to recuse herself dated February 23, 2020, both of which went nowhere. Then he filed the motion for new trial, based on alleged juror irregularities, which has now also gone nowhere.

Here is the full decision. The whole decision is good, but if you want the court summary, reading the first nine pages will give you all that.

Given that federal courts speak usually in very veiled language, this is pretty blistering. Here are a few choice nuggets, starting off with the main conclusion:

The assumption underlying the motion – that one can infer from the juror’s opinions about the President that she could not fairly consider the evidence against the defendant – is not supported by any facts or data and it is contrary to controlling legal precedent. The motion is a tower of indignation, but at the end of the day, there is little of substance holding it up. Therefore, the request for a new trial will be denied based on the facts and the case law set out in detail in the body of this opinion, and which are summarized briefly here.

Ouch. But here are a couple of more:

Defendant contends that he is entitled to a new trial because this “newly discovered evidence” reveals that the foreperson answered questions falsely on her written juror questionnaire and when she was questioned in the courtroom, and that by doing so, she concealed the fact that she harbored bias against him. He also seeks a new trial based on an allegation that the juror engaged in misconduct during deliberations, tainting the verdict.
…
It is important to emphasize that the question before the Court is not whether the defense would have taken a different approach towards the juror if had it seen the posts earlier. The trial is over, and a verdict – which was based largely on the defendant’s own texts and emails, and was amply supported by this undisputed evidence – has been returned. At this point, it is incumbent upon the defendant to demonstrate that the juror lied, and that a truthful answer would have supplied grounds for the Court to strike her for cause. Also, a defendant seeking a new trial must establish that the information presented in his motion could not have been discovered earlier through the exercise of due diligence. Only if those criteria are met would one then assess whether the lack of the newly discovered evidence affected the conviction.
The defendant has not shown that the juror lied; nor has he shown that the supposedly disqualifying evidence could not have been found through the exercise of due diligence at the time the jury was selected. Moreover, while the social media communications may suggest that the juror has strong opinions about certain people or issues, they do not reveal that she had an opinion about Roger Stone, which is the opinion that matters.
…
There is a second reason why Stone’s motion fails: to the extent one could consider any of the social media posts to be inconsistent with the juror’s questionnaire, they do not warrant a new trial because they do not meet the legal test for something that has been “newly discovered.” The information in the motion could have easily been found with the exercise of due diligence: by posing a few pointed follow-up questions in person, or by using the same search engines that quickly brought the public social media posts to light the day the juror identified herself to the rest of the world. The evidence the defense claims was critical was never “concealed” – it was a few clicks of a mouse away.

Again, if interested, read the whole opinion. But at least read the first nine pages of summary, it is worth it.

Trump Puts his Rasputin Guy, Michael Caputo, at Department of Health and Human Services During a Pandemic

April 16, 2020/25 Comments/in COVID-19, Health Policy /by emptywheel

As Politico reported yesterday, in a bid to marginalize Alex Azar (who has been largely silenced in the middle of a pandemic since Rod Rosenstein’s sister Nancy Messonier told the truth in public), Trump has made Michael Caputo the spokesperson at Department of Health and Human Services.

The move is interesting for several reasons. It suggests the White House believes the way to control a Senate-confirmed cabinet member is to hire a spokesperson for that person, not to replace him or work out problems with him.

The move is designed to assert more White House control over Health and Human Services Secretary Alex Azar, whom officials believe has been behind recent critical reports about President Donald Trump’s handling of the coronavirus pandemic, according to two officials with knowledge of the move.

That, in turn, suggests that in the middle of a pandemic, Trump’s White House is treating HHS as a PR shop, not a functional agency.

But the far more interesting aspect of this hire is that, as recently as February 3, Bill Barr’s DOJ claimed in FOIA exemptions on Caputo’s FBI interview report that it was conducting an ongoing investigation into something Caputo did during the 2016 election — possibly with Roger Stone — called Project Rasputin. What Project Rasputin was is redacted in the 302. But whatever it was is closely enough connected with his and Stone’s willingness to take a meeting with a Russian selling dirt on Hillary Clinton that Caputo told Mueller’s team that, “‘Project Rasputin’ was mutually exclusive from anything having to do with” the guy selling that dirt.

Of course, on precisely the same day that Bill Barr’s DOJ released materials indicating it was still investigating something called Project Rasputin that Caputo had been involved in, Barr replaced then DC US Attorney Jesse Liu, who had permitted the Roger Stone investigation and prosecution to proceed unmolested by the kind of unprecedented interference that Barr would engage in just days later. Which raises questions about whether Trump doesn’t care that his own DOJ was still investigating something Caputo did in 2016, or whether Barr saw to it that investigation ended, making Caputo hirable for the first time in Trump’s Administration.

When I asked Caputo what Project Rasputin was, he simply responded by tweeting a picture of the charlatan advisor to a czar, a picture he has since deleted (along with a bunch of other Tweets he purged before taking this position).

Ah well. I’m glad that Trump’s desperation to stop Azar from telling the truth about how the President ignored sound medical advice in favor of conspiracy theories will provide yet another pressing reason to ask Reggie Walton to fully declassify the 302s describing this project.

DOJ Is Abusing FOIA Exemptions to Hide Later, More Damning Testimony of Trump Aides

March 6, 2020/6 Comments/in 2016 Presidential Election, emptywheel, Mueller Probe /by emptywheel

The government has now “released” around 200 302s (FBI interview reports) in response to BuzzFeed/CNN’s FOIA. The vast majority of those, however, are heavily and at times entirely redacted. DOJ is using an unprecedentedly broad interpretation of the already badly abused b5 (deliberative) FOIA exemption to keep much of this hidden. This includes treating communications with the following people as “presidential communications:”

a. Donald Trump, President

b. Michael Pence, Vice President

c. John Kelly, Chief of Staff

d. Reince Priebus, Chief of Staff

e. Donald McGahn, Counsel to the President

f. Michael Flynn, National Security Advisor

g. Emmett Flood, Special Counsel to the President

h. Sean Spicer, Press Secretary

i. Sarah Huckabee Sanders, Deputy Press Secretary; Press Secretary

j. Robert Porter, Staff Secretary

k. Stephen Bannon, Chief Strategist and Senior Adviser to the President

l. Richard Dearborn, Deputy Chief of Staff

m. John Eisenberg, Deputy Counsel to the President and Legal Adviser to the National Security Council

n. K.T. McFarland, Deputy National Security Advisor

o. Uttam Dhillon, Deputy Counsel to the President

p. Annie Donaldson, Chief of Staff to the Counsel to the President

q. Jared Kushner, Senior Adviser to the President

r. Ivanka Trump, Senior Adviser to the President

s. Hope Hicks, Director of Strategic Communications; Director of Communications

t. Stephen Miller, Senior Adviser to the President

DOJ has offered a similar — albeit smaller — list (pages 16-17) of people covered by “Presidential” privileges during the Transition (yes, both Ivanka and Jared are on that list, too).

This is outright abuse, and given yesterday’s opinion stating he will review the existing redactions in the Mueller Report, I expect Judge Reggie Walton to deem it as such once the litigation rolls around to that point.

All the more so given that it can be demonstrably shown that DOJ is selectively releasing 302s such that Trump aides’ false statements are public, but their later more accurate (and damning) statements are hidden. There are at least three examples (Steve Bannon, KT McFarland, and Mike Flynn) where DOJ is still withholding later, more accurate statements while releasing earlier deceitful ones, and two more cases (JD Gordon and Sam Clovis) where DOJ may be hiding discussions of Trump pro-Russian policy stances. And in one case (Clovis), DOJ appears to have used a b3 (protected by statute) exemption that doesn’t appear to be justifiable.

Steve Bannon

Steve Bannon was interviewed on at least five occasions:

February 12, 2018: large swaths unredacted
February 14, 2018: Heavily redacted under both b5 and (pertaining to WikiLeaks, Stone, and Cambridge Analytica, ongoing investigation), but with key passages revealed
October 26, 2018: Not yet released
January 18, 2019: Proffer released, but 302 not yet released
Unknown date (in advance of Stone trial): Not yet released

There are significantly redacted discussions (protected under ongoing investigation redactions) in Bannon’s February 14 302 that conflict with his later public admissions. And Bannon’s testimony in the Roger Stone trial shows that his 302s — including the trial prep one — conflict with his grand jury testimony. What has thus far been made public includes denials of coordination on WikiLeaks that both his October 2018 and January 2019 302s must contradict. Yet DOJ has not released the later, more damning 302s yet.

KT McFarland

As has been publicly reported, KT McFarland at first lied to the FBI but — in the wake of Mike Flynn’s plea deal — unforgot many of the key events surrounding discussions about sanctions during the Transition. While DOJ has not yet released her first 302, the others are, in general, lightly redacted. They show how she appears to have told a cover story about discussions about sanctions during the Transition. The 302 in which she cleaned up her testimony, which would show what really happened during the Transition, is largely redacted.

August 29, 2017: Not yet released
September 14, 2017: Lightly redacted (though hiding details of Tom Bossert email and her claims about the Flynn sanctions discussion)
October 17, 2017: Lightly redacted, though with some Mar-a-Lago and sanctions cover story details redacted
October 19, 2017: Significantly redacted
December 5, 2017: Lightly redacted; this captures McFarland’s panic in the days after Flynn’s plea
December 22, 2017: Very heavily redacted

Mike Flynn

Mike Flynn’s initial 302, from January 24, 2017, has been public for some time. Flynn has twice admitted, under oath, that he lied in that 302.

None of his other Russia-related 302s, including those where he corrected his story in November 2017, have been made public (though DOJ may be withholding these because he has not yet been sentenced). Among the 302s DOJ is withholding involves at least one describing how the Trump campaign discussed reaching out to WikiLeaks after the John Podesta emails dropped.

JD Gordon

JD Gordon’s testimony was critical to Mueller’s finding that Trump and Paul Manafort had no personal involvement in preventing convention delegate Diane Denman from making the RNC platform more hawkish on Ukraine. Details of this investigation into Gordon’s role appear entirely unredacted in the DOJ IG Report on Carter Page as part of the case that FBI should have removed any claim that Page was involved in the platform.

Gordon’s first interview is largely unredacted. It soft-pedals Trump’s pro-Russian stance on the campaign.

GORDON flagged DENMAN’s amendment because TRUMP had mentioned not wanting to start World War III over Ukraine. TRUMP had mentioned this both in public and in private, including at the campaign meeting on March 31, 2016. This was not GORDON’s stance but TRUMP’s stance on Ukraine.

[snip]

DENMAN [redacted] and asked GORDON what he had against the free people. GORDON explained TRUMP’s statements regarding World War III to her. She asked why they were there and who GORDON was on the phone with. GORDON told her he was on the phone with his colleagues but didn’t provide names.

But Gordon’s final 302 is largely redacted, though it leaves unredacted the World War III excuse. Some of the redactions appear to hide Gordon’s testimony about the things Trump said in campaign appearances that Gordon used to explain his intervention in the Convention.

There is also discussion in his last interview about whether he consulted with Jeff Sessions on the platform issue during phone calls placed at the time (which he denied he had).

The Mueller Report also describes how Sergey Kislyak invited Gordon to his residence in DC shortly after the convention; that reference is based entirely on emails exchanged between the two; it would be worthwhile to know what he said if he was asked about the invite in his FBI interviews, but if so, it is redacted.

August 29, 2017: Almost entirely unredacted
September 7, 2017: Not yet released
February 24, 2019: Almost entirely redacted

Sam Clovis

Sam Clovis appears to have had three interviews, though it seems Mueller’s team may never have trusted his testimony. The interviews are cited just three times in the Mueller Report, and he makes denials in his interviews that conflict with communication-based evidence laid out in the Mueller Report and what he is reported to have told Stefan Halper in the DOJ IG Report on Carter Page (PDF 367-370). Clovis’ testimony is particularly important because he claims there was a shift in policy towards Russia during the campaign, but his released testimony is inconsistent on that point.

October 3, 2017 (1): Lightly redacted under b3 exemptions
October 3, 2017 (2): More heavily redacted under b3 exemptions
October 26, 2017: Entirely redacted under b5 exemptions

Clovis was first interviewed on October 3, 2017 at his office at USDA. The 302 makes clear that “about a quarter of the way through the interview, CLOVIS was warned that lying to the agents could constitute a federal offense.” In that interview, Clovis makes extremely strong denials about Russia.

CLOVIS started off the interview by explaining that he hates Russia and that should be clear throughout his interview.

[snip]

Russia was never a topic between CLOVIS and TRUMP. They would occasionally discuss it in debate prep. CLOVIS did most of the debate prep during the primaries. They talked about a Ukrainian policy and discussed having a bipartisan approach to this because of the divided based on Ukraine.

[snip]

A lot of people approached the campaign with ideas about foreign policy topics. Some of them wanted to approach and engage Russia but CLOVIS never trusted RUSSIA.

[snip]

CLOVIS thought interacting with Russia was a bad idea on any level because of comments TRUMP made.

[snip]

CLOVIS thinks the Special Counsel investigation is more political than practical. From CLOVIS’ perspective he didn’t see anything that warranted an investigation. CLOVIS said the campaign didn’t have anything to do with Russians. No one advised anyone to meet with Russians. CLOVIS wanted nothing to do with Russia and would never approve a meeting with the Russians. CLOVIS explained that Russians are different with Russia. You can’t just sit down at the table with them.

[snip]

CLOVIS does not recall Russia being brought up in the March 31, 2016 meeting.

[snip]

PAGE had an interesting background, including time in the Navy, experience in energy policy and Russian business. They were rushed into putting a foreign policy team together. CLOVIS thought PAGE was pretty harmless but also didn’t provide much value. CLOVIS said he never talked to PAGE about meetings with Russia and doesn’t remember PAGE ever bringing up Russia.

[snip]

CLOVIS didn’t think the change [in platform] was in line with TRUMP’s stance. CLOVIS thought their plan was to support Ukraine in their independence by engaging their NATO allies. CLOVIS is concerned PUTIN is trying to establish a Soviet empire.

That very same day, the FBI interviewed Clovis a second time, also in his USDA office. In the second interview, Clovis made comments that probably conflict with what Clovis told Stefan Halper in August 2016.

CARTER PAGE and GEORGE PAPADOPOULOS were not involved with the campaign team. They were not players in the campaign.

More importantly, in the second interview — on the same day!! — Clovis admitted that Trump did want better ties with Russia.

TRUMP wanted improved relations with Russia. The “bromance” TRUMP had with PUTIN bothered CLOVIS but the press and the public fed on it. CLOVIS felt like he had to cleanup with a shovel because TRUMP played up his bromance with PUTIN for the public.

Clovis also denied discussions of a trip to Russia that the FBI had proof he was personally involved in.

CLOVIS was asked about emails regarding an “unofficial trip” to Russia which were discussed in a Washington Post article. CLOVIS indicated this was info he was not privy to. CLOVIS said he doesn’t know who would have authorized such meetings but he never gave PAPADOPOULOS any indication to setup meetings.

CLOVIS denied learning about any dirt on Hillary, something that Papadopoulos provided conflicting testimony on.

CLOVIS was asked if he ever heard anyone discuss Russians having dirt on HILLARY CLINTON. CLOVIS said he wasn’t aware of that and if someone had that info they probably wouldn’t bring it to CLOVIS. CLOVIS pointed out that he was never asked to do anything untoward.

And in this second interview, Clovis softened on whether anyone had been compromised by Russia.

CLOVIS further explained how Russia can be very sneaky and will try to distract you on one side while sneaking by you on the other side. They will use any mechanism they can. CLOVIS fought them for years. CLOVIS didn’t feel like there was anything going on with the campaign though.

The interview ends with what may to be a discussion about a subpoena.

CLOVIS asked the agents [redacted] since he had cooperated. He was concerned about his travel plans and indicated he planned on leaving [redacted] and returning to D.C. [redacted] Agents agreed to [redacted] but said they would contact him later with information [redacted].

Note, the most substantive redactions in these two 302s have b3 redactions, which covers information “exempted from disclosure by statute.” While some of the last paragraph might be a discussion about serving a grand jury subpoena, none of the rest of it should be. And in other 302s, discussions of the same events (such as the March 31 meeting) are not redacted under b3 exemptions. It is hard to see how that redaction is permissible.

Clovis’ October 26 interview is entirely redacted under b5 exemptions.

Mueller Told Trump He Was Being Investigated for Hacking, Wire Fraud, and Mail Fraud

March 6, 2020/4 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

Having followed Carol Leonnig’s reporting since the Scooter Libby case, I’m thrilled she finally wrote — with Philip Rucker — a book, A Very Stable Genius. She is one of the reporters who mixes an ability to read public records with very good sourcing. And while attentive readers of this site will be familiar with much of the reporting in Stable Genius, there are tidbits that make the book well worth your time.

One example is a description of the discussions between Trump’s lawyers and Mueller’s team from summer 2018. In the middle of a description of talks between Jane Raskin and James Quarles, the book reveals that Quarles told Trump’s team that the President was being investigated for hacking, wire fraud, and mail fraud.

In early September 2018, Trump’s lawyers finally reached a conclusion with Mueller over his request for a presidential interview. Trump’s lawyers had argued to prosecutors all summer why they didn’t believe it was necessary to provide the president’s responses to their questions and tried to appear open to a possible compromise for him to provide limited answers. The discussion took the form of a volley of emails and memos between Trump’s lawyer Jane Raskin and her old law firm friend James Quarles.

Some of the correspondence was rudimentary. The Trump lawyers wanted to know what criminal statutes Mueller’s team was investigating as possible crimes and why this would require answers from the president. Raskin’s shorthand version was something to the effect of “You have told us our client is the subject of the investigation and you won’t even tell us what you are looking at.” It took roughly three weeks to get an answer to that question. Quarles responded that the statutes governed the criminal acts of hacking, under the Computer Fraud and Abuse Act, as well as the very general crimes of wire fraud and mail fraud. Trump’s lawyers shrugged. That’s it? That’s useless, they said to each other. They were certain the president hadn’t engaged in any of those crimes.

Mueller’s team would be silent for long stretches, especially later in the summer. At one point, Quarles told the Trump lawyers that it was important to ask about the president’s view of events surrounding his pursuit of the Trump Tower Moscow project, as well as his role in describing Donald Trump Jr.’s 2016 meeting with a Russian lawyer who was expected to provide damaging information on Clinton. Raskin and her colleagues had a shared reaction: “What conceivably is criminal about that? Why do you want to ask about that?” The president’s team also argued that prosecutors were not entitled to question Trump on decisions he made as president because anything prosecutors needed to know from Trump’s time in office could be obtained from the thousands of documents and dozens of witnesses the White House had helped provide. [my emphasis]

That’s a fairly surprising detail!

There’s a heavily redacted section of the Mueller Report that explains why they didn’t charge someone under CFAA (PDF 187) that might pertain to Don Jr’s use of a password to access a WikiLeaks related website before it was public, or might pertain to some skiddies who tried to access Guccifer 2.0’s social media accounts who were investigated in Philadelphia.

More interesting is the 3-page redaction, starting at PDF 186 in the FOIA version, that footnote 1278 makes clear pertains to the publishing of post-hacking emails. That may well related exclusively to WikiLeaks, but it was redacted under exemptions tied to Roger Stone’s case.

And filings in the Roger Stone case — most explicitly, this opinion from Amy Berman Jackson — make it clear that Mueller’s team had shown probable cause to obtain warrants against Stone including CFAA and wire fraud charges as late as August 28, 2018. (The numbering Stone’s lawyers used does not match the timeline, so search warrant 18 is not the last; see footnote 2 of the opinion for the dates of the warrants, which I’ve tracked in the Mueller warrant docket.)

Fourteen of the eighteen warrant applications sought authorization to search for evidence of, among other crimes, the intentional unauthorized access of computers in violation of 18 U.S.C. § 1030. See SW1-SW13, SW18.

[snip]

The fourteen affidavits also sought to search for evidence of violations of other crimes, including 18 U.S.C. § 2 (aiding and abetting), 18 U.S.C. § 3 (accessory after the fact), 18 U.S.C. § 4 (misprison of a felony), 18 U.S.C. § 371 (conspiracy), 18 U.S.C. § 1001 (false statements), 18 U.S.C. § 1505 (obstruction of justice); 18 U.S.C. § 1512 (tampering with a witness), 18 U.S.C. § 1513 (retaliating against a witness), 18 U.S.C. § 1343 (wire fraud), 18 U.S.C. § 1349 (attempt and conspiracy to commit wire fraud), and 52 U.S.C. § 30121 (foreign contributions ban).

This accords with the timing laid out in Stable Genius: during the period when Quarles and Raskin discussed possible charges against Trump, Stone was still under investigation for hacking or abetting hacks after the fact. And we know from public records that Stone’s efforts to optimize the WikiLeaks releases occurred in close coordination with Trump himself.

This detail may take on renewed import given Reggie Walton’s decision to review the redaction decisions on the Mueller Report himself. DOJ institutionally redacted some details — and sustained those redactions even when Stone asked for an unredacted copy of the Mueller Report — to protect Trump’s privacy.

I still maintain that Walton will release little more than what has already been released, if at all (pending the lifting of the Stone gag, at which point Walton will release everything currently redacted under it).

But if there’s a passage that explains why Mueller considered charging Stone — and possibly even Trump! — with CFAA charges for so long, which would, in turn, explain why Trump worked so hard to obstruct the investigation, Walton might find a way to release it.