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Remember Roger the Rat-Fucker?

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I’d like to point to three data points on Roger Stone, who is scheduled to go on trial on November 5, 364 days before the 2020 Presidential election.

Andrew Miller will testify against his former boss

First, Natasha Bertrand reported yesterday that Andrew Miller — the Roger Stone aide who fought a grand jury subpoena for a year — has been called as a government witness in Stone’s trial.

Andrew Miller, a longtime aide to Stone, received a subpoena in early August to appear as a government witness, said Miller’s lawyer, Paul Kamenar. Kamenar said he was “puzzled” as to why prosecutors wanted Miller as a government witness — he said earlier this year that he did not think Miller would be called — but confirmed that Miller plans to comply.

The result is that one of Stone’s closest aides will be testifying about him at his trial in November for lying to Congress about his dealings with WikiLeaks during the 2016 election. He has pleaded not guilty.

Miller worked with Stone for over a decade, managing his schedule and travel. Miller accompanied Stone to the Republican National Convention in 2016, meaning he might have insight into Stone’s activity around this time.

It’s clear that Miller’s lawyer doesn’t understand how his client’s testimony helps the government’s case. But it’s worth considering that we still don’t know how Roger Stone was learning of WikiLeaks’ plans. WikiLeaks claims they never spoke to him directly until later in the process, and Jerome Corsi does not appear to learn anything until weeks later (and I don’t rule out Corsi learning some of it from Stone, not vice-versa).

But, at least according to Michael Cohen’s testimony (which he suspects was corroborated by other sources), Stone called Donald Trump on either July 18 or 19 and told the candidate that WikiLeaks was about to drop a massive dump of emails that would damage Hillary’s campaign.

As I earlier stated, Mr. Trump knew from Roger Stone in advance about the WikiLeaks drop of emails. In July 2016, days before the Democratic Convention, I was in Mr. Trump’s office when his secretary announced that Roger Stone was on the phone. Mr. Trump put Mr. Stone on the speaker phone. Mr. Stone told Mr. Trump that he had just gotten off the phone with Julian Assange, and that Mr. Assange told Mr. Stone that within a couple of days, there would be a massive dump of emails that would damage Hillary Clinton’s campaign.

Mr. Trump responded by stating to the effect, Wouldn’t that be great.

[snip]

Ms. WASSERMAN SCHULTZ. Roger Stone says he never spoke with Mr. Trump about WikiLeaks. How can we corroborate what you are saying?

Mr. COHEN. I don’t know, but I suspect that the special counsel’s office and other government agencies have the information that you are seeking.

[snip]

Mr. COHEN. Yes. I’m sorry. I thought you were talking about a different set of documents that got dumped. So I was in Mr. Trump’s office. It was either July 18th or 19th. And, yes, he went ahead. I don’t know if the 35,000—or 30,000 emails was what he was referring to, but he certainly had knowledge.

Stone would have been calling from the RNC. It’s likely he learned about the emails not from Assange (he was just fluffing his value on that point), but someone whom he met with at the RNC — there has long been speculation this was Nigel Farage. Andrew Miller would be able to corroborate precisely who Stone was meeting before he called the candidate and gave him foreknowledge of the dump.

How Stone learned about WikiLeaks’ plans may be 404(b) information

Mind you, when and from whom Stone learned of WikiLeaks’ plans isn’t necessary to prove that he knowingly lied to the House Intelligence Committee in 2017.

But I suspect Miller’s subpoena comes after some sealed discussions in his case that started in June. On June 26, Judge Amy Berman Jackson permitted the government to file a 404(b) notice under seal as sealed docket item #139.

The Court grants the government’s motion to file under seal but notes it may revisit the need for the seal after it has reviewed the materials more closely. The Clerk of Court is directed to file under seal [139-1] Government’s Notice of Intention to Introduce Evidence Under Federal Rule of Evidence 404(b).

Then, on July 9, ABJ permitted Stone to file the response, as sealed docket item #143 (with two exhibits) under seal.

The Court grants defendant’s motion to file under seal but notes it may revisit the need for the seal after it has reviewed the materials more closely. The Clerk of Court is directed to file under seal [143-1] Defendant’s Response to Government’s Notice of Intention to Introduce Evidence Under Federal Rule of Evidence 404(b), [143-2] Exhibit A to the response, and [143-3] Exhibit B to the response.

On July 26, ABJ permitted the government to file, as sealed docket item #152 (with two exhibits) under seal as part of the motion in limine process deciding what will and will not be admitted.

The Clerk of Court is directed to file under seal [152-2] the Government’s Motion in Limine to Admit Two Newspaper Articles as Part of the Government’s Rule 404(b) Evidence, [152-3] Exhibit A, and [152-4] Exhibit B. Signed by Judge Amy Berman Jackson on 7/26/19.

There’s no sign of an order on 404(b) material (though there are other unexplained sealed docket items). But the fact that the government moved to pre-clear some newspaper articles as evidence under 404(b) may suggest ABJ has ruled.

Rule 404(b) governs whether or not you can introduce evidence that addresses character, other crimes, or other acts, beyond the scope of the indictment.

(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:

(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and

(B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

It is often done to explain a defendant’s purported motive (as it was with Craig). So the government is seeking to provide other evidence of Stone’s rat-fuckery that is not, however, central to the charges against him, lying to Congress.

Which raises the question of what this 404(b) material might be and why it was submitted under seal. On the question of a seal, for comparison sake, the government sealed neither their request to submit evidence on Ukrainian procurement in Paul Manafort’s (aborted) trial under ABJ nor their request to submit evidence that Greg Craig was trying to curry favor with Manafort by hiring his daughter in the former White House’s (unsuccessful) prosecution under ABJ. Those weren’t hugely damning, sure, though the Craig detail was political damaging. Though this is obviously something more sensitive, either because the government still treats it as sensitive or because it would impair Stone’s ability to get a fair trial.

Details about how Stone learned of WikiLeaks’ plans would qualify as the former, and that’s something that Miller’s testimony is likely directly relevant to.

Details of how Stone kept candidate Trump informed of his plans at every step would qualify as the latter (and that’s a detail that is not spelled out in the indictment, even though it should have been).

Both would explain his motive to lie — whatever source he’s been hiding inside a nesting Matryoshka doll of lies constructed with Jerome Corsi, and the degree to which Donald Trump was pushing his rat-fucker to optimize the release of emails stolen by Russian military intelligence to help Trump get elected.

Aside from the detail that Miller’s accounting of Stone’s schedule at the RNC might explain who the source is, the rest of this is all speculative: these are possible answers, but just guesses.

Roger Stone’s birthday party for his freedom

Which brings us to the fundraising birthday card Stone sent out on August 27.

Sent by email and bitching about press coverage, especially the dig against CNN for covering his arrest live, the fundraiser risks falling afoul of ABJ’s gag again.

Nevertheless, Stone risks sanctions for violating the gag to remind his readers, one of whom — President Trump — he names twice, that his trial is quickly approaching. He reminds his readers of the cost he has already paid for not pleading guilty. He reassures his readers, including the named one, that he will not “testify falsely about anyone or anything,”

It’s unclear whether this is a demand for a pre-trial pardon (which would save Trump the embarrassment of the trial), or whether it’s an attempt to call Trump’s attention to his plight. But it’s little different from the messaging back and forth on pardons that Mueller laid out in his report.

Certainly Stone has seen something that makes him want to remind Trump of his oncoming trial.

 

Roger Stone Once Again Limits His Denials

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In addition to the government showing that Roger Stone is a disorganized crime figure the other day, Roger Stone submitted a curious filing of his own, in yet another apparent attempt to feed denialist propaganda.

A week earlier, the government made a detailed argument that Stone, in his sustained bid to make his trial an attempt to challenge the government evidence that Russia hacked the DNC, misunderstood what the case was about. All that matters, the government argues, is whether Stone’s lies materially affected the House Intelligence investigation into the Russian tampering.

Stone’s false statements also had a natural tendency to (and in fact did) affect HPSCI’s investigative steps, priorities, and direction—regardless of Russia’s 2016 activities. See United States v. Safavian, 649 F.3d 688, 691-92 (D.C. Cir. 2011) (statements material if they “were capable of influencing the course of the FBI’s investigation”). For example, HPSCI did not subpoena the written communications that Stone claimed not to exist, and HPSCI did not investigate the other intermediary (Person 1) when Stone claimed that Person 2 was his sole intermediary. Moreover, Organization 1’s activities and coordination with Stone were relevant to evaluating the Intelligence Community’s work, to assessing any risks that Organization 1 may pose, and to considering any future actions that should be taken to deter coordination with state and non-state actors seeking to influence American elections. None of these understandings of materiality depends in any way on whether Russia in fact participated in the hacks or transmitted the hacked materials to Organization 1, and therefore Stone’s evidence on that subject is not relevant to the materiality inquiry.4

As part of that discussion, in a footnote, they engage in some counterfactuals to show how, even if some alternative scenarios, including the main one suggested by Stone, were true, his lies would still be material.

4 Even under Stone’s crabbed view of materiality and HPSCI’s investigation, Stone’s statements were still material, regardless of Russia’s exact role. Stone now primarily focuses only on evidence about whether Russia transferred the stolen files. But even if Organization 1 received the files elsewhere, it does not follow that Organization 1 has no connection to Russia’s election interference. For example, Organization 1 could theoretically have received the files from someone who received them from Russia; Russia could theoretically have coordinated its other election interference activities with Organization 1’s posting of stolen documents even if Russia was not Organization 1’s source; and individuals associated with the Trump Campaign could theoretically have played a role coordinating the two. Under any view, Stone’s communications with and about Organization 1 were material, regardless of Russia’s exact role.

As you read this “theoretical” scenario, remember that the campaign considered reaching out to WikiLeaks after the John Podesta files got released. And Roger Stone was — at least in 2018 — among those Trump flunkies who were trying to get Julian Assange a pardon.

The government presents this as theoretical, but it demonstrates, correctly, that WikiLeaks’ role in the operation matters whether or not the person who dealt them one or another set of files was a Russian intelligence officer.

Stone spends much of his response claiming (nonsensically) that because the government wants to introduce a Julian Assange video to establish dates for the public record surrounding certain details (in that case, when it was publicly knowable that WikiLeaks would release more files), it makes the issue of how Russia got the files to WikiLeaks central. In the hands of better lawyers — or at least, lawyers who weren’t playing for a pardon — this argument might have merit. In Stone’s case it doesn’t, in part because he failed to describe what evidence he wanted to introduce, and in part because he doesn’t understand what files Bill Binney, one of his intended witnesses, is talking about (they’re not the John Podesta emails, and so are irrelevant to Stone’s lies).

The government objects to Roger Stone presenting two witnesses who will testify, and demonstrate, that WikiLeaks did not receive the relevant DNC and DCCC data from the Russian state. That evidence will establish that the relevant data was “leaked” to WikiLeaks, not transferred to WikiLeaks by the Russian State. The government claims such evidence will be irrelevant, unfairly prejudicial, and cause delay and would turn the subject matter into a “mini-trial.” The government states: “If a person chooses to make false statements to the government, he or she takes the risk that the false statement is material.” (Motion at 14). But, the government takes the same risk: that the alleged false statements might be deemed immaterial by the jury. 1

Stone should be permitted to present evidence that his answers did not materially affect the congressional investigation because the Indictment makes clear that the investigation was of a “Russian state hack.”

But along the way, Stone includes his own footnote where he (perhaps in an effort to present a quote that denialists like Aaron Maté can quote without context, as Maté has done repeatedly as the useful idiot of both Stone and Concord Management) misrepresents the government’s theoretical as instead genuine curiosity.

1 The government wonders if the Russian state hacked and stole the relevant data and then someone else coordinated the delivery of the data to WikiLeaks. See Dkt. #172 n. 4. The government, nor the Mueller report proved or disproved this scenario. But if WikiLeaks did not receive the data from the Russian state then Stone’s communications with WikiLeaks were immaterial.

Stone is absolutely right that the government doesn’t prove or disprove this scenario. The Mueller Report notes explicitly that,

The Office cannot rule out that stolen documents were transferred to WikiLeaks through intermediaries who visited during the summer of 2016. For example, public reporting identified Andrew Müller-Maguhn as a WikiLeaks associate who may have assisted with the transfer of these stolen documents to WikiLeaks.

The prosecutors in his case aren’t tasked with answering that question. Indeed, if pressed, they could argue that Stone’s lies might well have served to hide firsthand knowledge of how the Podesta emails did get to WikiLeaks, which would make them even more material.

From a legal standpoint, Stone’s argument is unlikely to work, even if it were argued with more legal rigor.

What I’m interested in, however, is how Stone homes in on just one part of the scenario, the hand-off of files to WikiLeaks. The government actually laid out three parts to its theoretical: WikiLeaks got the files stolen by Russia from a cut-out, but also coordinated with Russia on “other election interference activities,” and individuals associated with the Trump campaign played a role coordinating the handoff of the files and WikiLeaks’ other coordination with Russia.

  • Organization 1 could theoretically have received the files from someone who received them from Russia;
  • Russia could theoretically have coordinated its other election interference activities with Organization 1’s posting of stolen documents even if Russia was not Organization 1’s source;
  • Individuals associated with the Trump Campaign could theoretically have played a role coordinating the two.

It’s a series of tantalizing hypotheticals! And while the first two (the second of which is pretty oblique) could independently be true, the last one implies the two would not be independent, but that, instead, someone “associated” with the Trump campaign coordinated the first two steps.

But of course, the government presents all this as a theoretical possibility, not (as Stone falsely claims) as a question they’re seeking, here, to answer.

Stone, however, only deals with the first part of that scenario: “the Russian state hacked and stole the relevant data and then someone else coordinated the delivery of the data to WikiLeaks.” He doesn’t address the possibility that WikiLeaks had some other kind of role. And he definitely doesn’t address the possibility that someone “associated” with the Trump campaign had a role in coordinating the two. In a gesture towards addressing a government hypothetical (in part) that some individual associated with the Trump campaign might have coordinated other election year activities, Stone suggests that the only way the communications of a Trump associate with WikiLeaks would be material would be if the communications involved actual transfer of emails.

This is something Stone has long been doing — making narrowly tailored denials that don’t address some tantalizing possibilities: in this case, that Stone had a role arranging something else with WikiLeaks.

And all the while, Stone drops a suggestion that overstates the uncertainty of what the government knows.

The Government Accuses Roger Stone of Being a Disorganized Figure Who Committed a Crime

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The government and Roger Stone are arguing over whether prosecutors can show the Frank Pentangeli clip from the Godfather II at his trial. Last month, the government argued they need to show the clip to explain the context of Stone’s orders to Randy Credico to ““Start practicing your Pantagele.”

The clip of Pentangeli’s testimony is directly relevant to the charge of witness tampering in this case (count 7). To prove that charge, the government must prove that Stone corruptly persuaded or attempted to corruptly persuade a witness (Person 2), intended to interfere in that witness’s testimony, and did so with a current or future proceeding in mind. See 18 U.S.C. § 1512(b)(1); United States v. Edlind, 887 F.3d 166, 172-174 (4th Cir. 2018). Several of the allegedly criminal acts at issue involve Stone’s referencing Pentangeli and Pentangeli’s testimony before Congress. To understand Stone’s messages to Person 2—including what Stone was asking Person 2 to do—it is necessary to understand those references. Taken in context, Stone’s references to Pentangeli and to specific lines spoken by Pentangeli are unmistakable. This clip is highly probative of the meaning of Stone’s communications to Person 2.

[snip]

Watching the movie clip and seeing the context in which Pentangeli delivers the lines that Stone quotes to Person 2 makes clear that Stone’s messages were not mere references to Person 2’s abilities as an impressionist, but rather were a suggestion that Person 2 testify falsely to Congress. The clip is an important piece of evidence on this critical, disputed issue.

In response, in one of their most seriously argued filings, Stone’s team argued the clip would unduly link Stone with the mafia (though they got the role Stone would play in the analogy wrong).

Any reference to “The Godfather” (regardless of which one) brings up a clear and unalienable connection to the Italian-American Mafia. Any attempts to compare the conduct of Stone to that of an alleged mafia member, testifying that he murdered on the orders of ‘the Godfather’ will instantly create a connection in the minds of the jurors that Stone is somehow similar to a murderous mafioso.

[snip]

Stone objects because unlike the other movies and interviews cited by the government, the Godfather trilogy is iconic and its themes and implications are known by most people who are potential jurors. A clip of the movie triggers the implication of the entire series – cold, calculated, violence and crime.3 Once a Mafia connection is made the damage will be done.

In a footnote, Stone’s lawyers suggest that the government didn’t include a transcript because it would alert Judge Amy Berman Jackson to how damning the clip would be. They claim to include a transcript as an exhibit.

The government either assumes the Court is necessarily familiar with the movie clip from the Godfather II, or recognizes that if it were to see it the nature of its improper character evidence and unfairly prejudicial clip would be apparent. The transcript of the scene is presented as Exhibit – 1, the movie clip itself is presented here (click here).

Today, the government responded, in part, by suggesting that showing the clip would not be unfairly prejudicial, it would just fully explain the crime Stone allegedly committed.

As the D.C. Circuit has observed, Rule 403 does not apply to “powerful, or even ‘prejudicial’ evidence” but instead “focuses on the ‘danger of unfair prejudice.’” United States v. Gartmon, 146 F.3d 1015, 1021 (D.C. Cir. 1998) (Court’s emphasis). This means “an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” Old Chief v. United States, 519 U.S. 172, 192 (1997). While the scene from The Godfather Part II may be dramatic in some sense, Stone chose to reference it, and Rule 403 “does not provide a shield for defendants . . . permitting only the crimes of Caspar Milquetoasts to be described fully to a jury.”

In a footnote, however, they note that the transcript Stone included inaccurately described both the words and actions from the movie.

Stone’s response attached a purported transcript of the clip at issue. See Doc. 171, Ex. 1. This transcript is inaccurate in several respects, including the words transcribed and actions described. The government respectfully suggests that the Court review the film clip itself, and the government can make a copy available for the Court’s review upon request.

In point of fact, they didn’t make the transcription errors themselves; they just used an an early draft of the screenplay they found online. (h/t AL) The miscitation is ironic, though, in part because Stone appears to be prepping a challenge to the accuracy of the transcript of his interview with HPSCI, and also because it’s clear from Stone’s references to the scene in communications to Credico that he knows the scene better than whoever lazily just copied this from the web.

Ultimately, though, it shows that even in Stone’s most aggressively argued motion, his defense is still (as it has been repeatedly) totally disorganized and sloppy.

He might have done better arguing he has nothing in common with The Godfather because he’s a disorganized crime figure.

(h/t WB for the pun.)

The Transcript the Frothy Right Claims Exculpates George Papadopoulos Instead Probably Inculpates Him

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Last Monday, Republican huckster lawyer Joe Di Genova promised — among other things — that the documents the frothy right has been promising will blow up the Russian investigation would be released Wednesday — that is, a week ago. The frothy right — which for some unfathomable reason is following sworn liar and all around dope George Papadpoulos like sheep — believes that a transcript of the interactions between him and Stefan Halper somehow includes evidence that undercuts the case that there was probable cause that Carter Page was an agent of a foreign power.

An exchange from Sunday, however, confirms that the transcript in question shows that Papadopoulos was actively lying in September 2016 about his ties to Russia. In an exchange with Papadopoulos, Maria Bartiromo confirmed that the transcript in question is the one on which the former Trump flunkie told Stefan Halper that working with Russia to optimize the release of emails stolen from Hillary would be treason.

Bartiromo said that she had spoken with Papadopoulos on Saturday night, during which he told her that the recorded conversation in question involves him and FBI informant Stefan Halper in September 2016. Papadopoulos allegedly pushed back against Halper’s suggestion that he or the Trump campaign would have wanted Russia to release the Democratic National Committee emails it hacked in 2016.

[snip]

Bartiromo then said that “George Papadopoulos told me last night” that the transcript Gowdy was referring to is from a conversation Papadopoulos had with Halper in London at the Sofitel Hotel in London where she recounted that, according to Papadopoulos, Halper questioned Papadopoulos, saying, “Russia has all of these e-mails of Hillary Clinton and you know, and when they get out that would be really good for you, right? That would be really good for you and the Trump campaign, if all those e-mails got out, right?”

But Bartiromo says Papadopoulos responded to Halper by saying “that’s crazy,” “that would be treason,” “people get hanged for stuff,” and “I would never do something like that.”

That means it’s the same transcript that Mark Meadows — questioning Papadopoulos about what he learned not from his lawyers (who said there was no misconduct with Papadopoulos) but from the John Solomon echo chamber — asks about here.

Mr. Meadows. You say a transcript exists. A transcript exists of that conversation?

Mr. Papadopoulos. That’s I guess what John Solomon reported a couple days ago.

Mr. Meadows. So are you aware of a transcript existing? I mean —

Mr. Papadopoulos. I wasn’t aware of a transcript existing personally.

Mr. Meadows. So you have no personal knowledge of it?

Mr. Papadopoulos. I had no personal knowledge, no.

Mr. Meadows. But you think that he could have been recording you is what you’re suggesting?

Mr. Papadopoulos. Yes.

Mr. Meadows. All right. Go ahead.

Mr. Papadopoulos. And after he was throwing these allegations at me, I —

Mr. Meadows. And by allegations, allegations that the Trump campaign was benefiting from Hillary Clinton emails?

Mr. Papadopoulos. Something along those lines, sir. And I think I pushed back and I told him, I don’t know what the hell you’re talking about. What you’re talking about is something along the lines of treason. I’m not involved. I don’t know anyone in the campaign who’s involved. And, you know, I really have nothing to do with Russia. That’s — something along those lines is how I think I responded to this person.

By Papadopoulos’ own memory, he said three things in a mid-September meeting with Stefan Halper:

  1. He didn’t know anything about the Trump campaign benefitting from Hillary Clinton emails
  2. He believed if he did know about such a thing, it would amount to treason
  3. “I really have nothing to do with Russia”

Papadopoulos pled guilty, under oath, with the advice of counsel who knew the contents of this interview, that in fact he did know about the Trump campaign benefitting from Hillary Clinton emails, because he had been told about it in April 2016. So that’s one lie that this supposed exculpatory transcript records him telling.

I’m more interested in the second lie: that he “really has nothing to do with Russia.”

He made that statement sometime around September 16, 2016, in London. A month earlier, Papadopoulos had very different plans for a mid-September trip to London. He planned a meeting in London with the “Office of Putin,” that would hide any formal tie with the campaign.

The frothy right makes much of the fact that that meeting, as far as we know, did not take place. Though there is a written record of Sam Clovis — who probably was not entirely forthcoming in a grand jury appearance — encouraging Papadopoulos and Walid Phares to pursue such a meeting if feasible. More importantly, a year later, at a time when he was purportedly cooperating, Papadopoulos refused to cooperate in transcribing these notes, meaning he was still covering up the details about the fact that as late as mid-August the Trump campaign had plans to have a secret meeting at precisely the same time and in the same place that this Halper transcript was recorded.

Papadopoulos declined to assist in deciphering his notes, telling investigators that he could not read his own handwriting from the journal. Papadopoulos 9/19/17 302, at 21. The notes, however, appear to read as listed in the column to the left of the image above.

Worse still, Papadopoulos continued to show great enthusiasm for Russia even after the meeting where he claimed he “really has nothing to do with Russia.” He proudly alerted Joseph Mifsud of his September 30 column attacking sanctions against Russia.

On or about October 1, 2016, PAPADOPOULOS sent Mifsud a private Facebook message with a link to an article from Interfax.com, a Russian news website. This evidence contradicts PAPADOPOULOS’s statement to the Agents when interviewed on or about January 27, 2017, that he had not been “messaging” with [Mifsud] during the campaign while “with Trump.”

This column led the Trump campaign to sever ties with Papadopoulos.

Papadopoulos was dismissed from the Trump Campaign in early October 2016, after an interview he gave to the Russian news agency Inter/ax generated adverse publicity.492

492 George Papadopoulos: Sanctions Have Done Little More Than to Turn Russia Towards China, Interfax (Sept. 30, 2016).

And in spite of claiming he had “nothing to do with Russia” sometime in mid-September, immediately after the election Papadopoulos pursued deals with Russia, via Sergei Millian.

On November 9, 2016, shortly after the election, Papadopoulos arranged to meet Millian in Chicago to discuss business opportunities, including potential work with Russian “billionaires who are not under sanctions.”511 The meeting took place on November 14, 2016, at the Trump Hotel and Tower in Chicago.512 According to Papadopoulos, the two men discussed partnering on business deals, but Papadopoulos perceived that Millian’s attitude toward him changed when Papadopoulos stated that he was only pursuing private-sector opportunities and was not interested in a job in the Administration.5 13 The two remained in contact, however, and had extended online discussions about possible business opportunities in Russia. 514 The two also arranged to meet at a Washington, D.C. bar when both attended Trump’s inauguration in late January 2017.515

In short, the transcript (if it reflects Papadopoulos claiming he had nothing to do with Russia) is not exculpatory. On the contrary, it’s proof that Papadopoulos lied about at least two of three things Halper grilled him about.

The frothy right doesn’t seem to care that this transcript proves Papadopoulos lied, even before he knew he was under legal scrutiny for ties to Russia he continued to pursue even after being questioned about them.

The frothy right is using it differently. Trey Gowdy claims the transcript proves that the FBI was questioning “Trump campaign officials” (Papadopoulos was never paid by the campaign and would be “fired” two weeks later for his open enthusiasm for sanctions relief) about the campaign.

Gowdy told Bartiromo that this transcript “certainly has the potential to be” a game changer and said that he was “lost” and “clueless” as to why it hadn’t been made public yet, stating that he didn’t think it contained any information that would have an impact on relationships with our allies.

Gowdy further said that the transcripts would show “what questions [the FBI] coached the informants or the cooperating witnesses to ask of the Trump campaign officials” and implied that the questions would show that the FBI had been targeting the Trump campaign rather than simply attempting to combat Russian election interference.

Gowdy claimed that if the transcripts showed that the FBI was “veering over into the campaign or your [the FBI’s] questions are not solely about Russia, then you [the FBI] have been misleading us for two years.”

Here’s how that belief looked when Mark Meadows first mainstreamed it last fall.

Mr. Meadows. So essentially at this point, he was suggesting that there was collusion and you pushed back very firmly is what it sounds like.

Mr. Papadopoulos. That’s what I remember, yes.

Mr. Meadows. Okay. And then what did he do from there?

Mr. Papadopoulos. And then I remember he was — he was quite disappointed. I think he was expecting something else. There was a —

Mr. Meadows. So he thought you would confirm that you were actually benefiting from Hillary Clinton’s email dump?

Mr. Papadopoulos. Perhaps that’s why he was disappointed in what I had to tell him, which was the truth.

Mr. Meadows. So you have no knowledge — you’ve already testified that you have no personal interaction, but you have no knowledge of anybody on the campaign that was working with the Russians in any capacity to get these emails and use them to the advantage. Is that correct?

Mr. Papadopoulos. That’s absolutely correct.

Mark Meadows is pretty dumb. But this line of questioning is pretty shrewd (and may show some awareness of details that were not, at this point, public). His purportedly slam dunk question, proving misconduct, is whether Papadopoulos — who has, at times, been referred to as a “coffee boy” and was not a paid member of the campaign — had personal interaction or “knowledge of anybody on the campaign [] working with the Russians in any capacity to get these emails and use them to the advantage.”

Papadopoulos claimed he did not have that knowledge.

But we know that by the time this meeting with Halper happened, Donald Trump had ordered his top campaign aides to get Roger Stone to reach out to WikiLeaks to “get these emails and use them to the advantage.” Not Russia directly, not anybody still with the campaign, but the campaign did in fact try to “get these emails and use them to the advantage,” which is how Mark Meadows defines “collusion.” In short, this slam dunk exchange defines “collusion” to be precisely what Trump asked his aides to ask his rat-fucker to accomplish.

The Mike Flynn cooperation addendum makes it clear that, “only a select few people were privy” to the discussions about optimizing the WikiLeaks releases. The candidate’s campaign manager was privy to those discussions. The deputy campaign manager was privy to those discussions. The candidate’s top national security advisor was privy to them. The candidate’s rat-fucker was entrusted with those efforts. The candidate himself pushed this effort and got communication back about it.

But the coffee boy was not privy to those discussions.

Finally, let’s turn to the really bizarre part of what is supposed to be a smoking gun.

Trey Gowdy claims to believe that a transcript showing that Papadopoulos was lying to hide his ongoing ties with Russia in September 2016 — the contents of which Papadopoulos’ lawyers appear to have known about, which did not persuade them any misconduct had occurred with their client — should have been disclosed to the FISA Court for an application targeting Carter Page.

Gowdy also claimed that the potentially exonerating info was misleadingly concealed from the Foreign Intelligence Surveillance Court by the FBI, and that this is not the only mysterious transcript yet to be released.

Now, I could be wrong about this. After all, Trey Gowdy is one of the few people who has reviewed the unredacted Page warrant, though in the past has said there was clearly enough evidence to justify the warrant, something the Mueller Report substantiates (in part by making clear that Page told the FBI he’d happily provide non-public information to known Russian spies). But it appears that Papadopoulos appears in Page’s FISA application because events he swore under oath happened suggest that Russia was trying to reach out to the Trump campaign (for which there is abundant evidence), in part by offering energy deals (which is one thing Papadopoulos was still chasing even after November 2016), and there was reason to believe both Papadopoulos and Page had gotten advanced notice of the July 22 DNC email drop.

  • FBI targeted Page because they believed Russia was recruiting him as part of their effort to influence the outcome of the election (4)
  • Trump named both Page and Papadopoulos as advisors in March 2016 (6)
  • What the FBI knew so far of Papadopoulos’ activities [and other things] led the FBI to believe that Russia was not just trying to influence the outcome, but trying to coordinate with Trump’s campaign as well (9)
  • Russia has recruited Page in the past (12-14)
  • [Redacted section that probably explains that Page had told the FBI that he thought providing information to people he knew were Russian intelligence officers was beneficial for both countries and, after he showed up in the Buryakov complaint, he told Russia he had not cooperated with the FBI] (14-15)
  • In addition to allegedly meeting with Sechin and discussing eliminating sanctions, he met with someone assumed to be Igor Nikolayevich Divyekin, also “raised a dossier of ‘kompromat’ that the Kremlin had” on Clinton and the possibility of it being released to Trump’s campaign (18)
  • After those July meetings, Trump appeared to change his platform and publicly announced he might recognize Crimea (21)
  • Once these details became public, the Trump campaign not only denied Page had any ongoing connection to the campaign, but denied he ever had, which was false (24)

Some of those allegations about Page — specifically about whether he was alerted to kompromat harming Hillary when he was in Moscow in July 2016 — may not be true (though Mueller concluded that it remained unresolved). But they were true about Papadopoulos.

Establishing proof that Papadopoulos was lying to people about his ties to Russia in the weeks before his role was included in a FISA application doesn’t really make his inclusion exculpatory. On the contrary, it makes it more justifiable.

The frothy right is so spun up by con man George Papadopoulos that they have run to the TV cameras and claimed that a transcript that shows Papadopoulos was lying to hide his ongoing efforts to establish ties with Russia was in some way exculpatory. I mean, sure, Bill Barr might believe this tale. But no one else should.

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

What I Would Do with the Mueller Report If I Were Reggie Walton

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According to Politico, a hearing in the EPIC/BuzzFeed effort to liberate the Mueller Report went unexpectedly well today. It seems that Bill Barr’s propaganda effort to spin the results of the Mueller Report got Walton’s hackles up, leading him to believe that Barr’s effort covered up the degree to which Trump “colluded” with Russia.

Walton said he had “some concerns” about trying to reconcile public statements Trump and Attorney General William Barr have made about the report with the content of the report itself.

The judge pointed to Trump’s claims that Mueller found “no collusion” between his campaign and Russia and the president’s insistence that he had been exonerated from a possible obstruction of justice charge. These comments, Walton said, appeared bolstered by Barr’s description of Mueller’s findings during a DOJ news conference — before the public and media could read the document for themselves.

“It’d seem to be inconsistent with what the report itself said,” Walton said. The judge also cited a letter Mueller’s office sent to Barr questioning the attorney general’s decision to release a four-page summary of the investigation’s conclusions that “did not fully capture the context, nature and substance” of the report.

Separately on Monday, Walton raised questions about a DOJ submission defending the agency’s decision to black out large portions of the Mueller report.

“I also worked for the department,” Walton said. “Sometimes the body does what the head wants.”

I thought I’d lay out what I would do if I were Judge Walton. I’d make different decisions if I were a judge, but having covered some of his biggest confrontations with an expansive Executive, I’m pretending I can imagine how he’d think.

I’m doing this not because I think he’ll follow my guidance, but to establish what I think might be reasonable things to imagine he’ll review for unsealing.

Unseal the discussions of how Donald Trump père and fils avoided testifying to the grand jury

As I have noted, there are two passages apiece that describe how Donald Trump Sr and Donald Trump Jr avoided testifying to the grand jury. While they might discuss the grand jury’s interest in subpoenaing the men, and while they might (both!) say that the men would invoke the Fifth if forced to show up and invoke it, those passages likely don’t describe that the men did so.

Particularly given Jr’s willingness to testify to Congressional committees that likely don’t have all the documents from Trump Organization that Mueller had, those passages should be unsealed unless they involve real grand jury decisions.

Unseal the names of Trump flunkies against whom investigations were opened in October 2017

The most obviously dishonest thing Bill Barr did in releasing the Mueller Report is claim that those against whom prosecutions were declined were peripheral people. At least one person (and up to three people) in this passage is not: Don Jr. Walton should unseal these names, especially given that Barr lied about how peripheral, at least, the President’s son is.

Review the longer descriptions of those who lied but weren’t charged

There are up to three people that Mueller appears to have considered for perjury charges (page 194 and two people on page 199) and at least one more whom he considered charging for false statements. Some of the discussion of the people in the former category include non grand jury material as well.

If I were Walton, I’d review this entire section and (treating Roger Stone separately) would unseal at least the names of the senior Trump officials not charged (one is KT McFarland). Given the treatment of Jeff Sessions — whose prosecution declination was not sealed — DOJ has already treated people inconsistently in this section.

Review the declinations starting on page 176, page 179, and page 188 for possible unsealing

There are three declinations that are candidates for unsealing. The most important — which describes the office’s consideration of charging WikiLeaks’ releases of stolen emails as an illegal campaign donation — is the last one. It raises real campaign finance questions and would feed right into impeachment.

The charging decision on page 179 may explain why Don Jr wasn’t charged for sharing a link to a non-public site releasing stolen emails (but it could also pertain to someone no one knows who tried to hack Guccifer 2.0). If it’s the former, if I were Walton, I might consider unsealing that.

The most interesting charging decision, starting on page 176, may explain why WikiLeaks wasn’t charged, why Stone wasn’t or why others were not. If it’s WikiLeaks, it’s the kind of decision already made public in the recent SDNY decision and could be released. In any case, that’s a redaction that likely would be worth Walton’s judicial consideration.

Order that Roger Stone sections be unsealed if there’s a substantive change in his gag order

A huge chunk of the remaining redactions pertain to Roger Stone or his trial. They also are among the most damning to Trump, as they implicate him personally in trying to make the most of Russia’s effort to help him. I, as Marcy Wheeler, would love to see them, today.

But Reggie Walton, who presumably eats lunch with Amy Berman Jackson in the DC District Judges cafeteria, will also recognize the difficulties she faces in seating a jury for the trial of the President’s rat-fucker in November. So unless something changes to the status quo — in which ABJ has imposed a strict gag on Stone — then I suspect he’ll cede to her judgment.

And, frankly, anyone who’d like to see Stone face some kind of repercussions for his rat-fuckery should also support him getting a fair trial, meaning they should support the continued sealing.

That doesn’t stop Walton from ordering that if something changes — if Stone wins an appeal he announced today to get his gag overturned, if Trump pardons Stone, or if Stone pleads — then the sections will automatically become unsealed. One of the biggest ways Trump can avoid all repercussion for his efforts to optimize the release of stolen information is to have Stone avoid trial (either by pleading or being pardoned) but preventing a reconsideration of redactions done to protect his right to a fair trial.

Leave national security sections sealed because I’m Reggie Walton

I and many others would love to see more of the IRA and GRU sections (though there’s a gag in the IRA case now too), especially those sections about how GRU passed on materials to WikiLeaks.

But I’m not Reggie Walton. While he’s very happy to take on an expansive Executive, he generally shows significant deference for claims of national security. Thus, I expect he’ll likely leave this stuff sealed.

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

The Parts of the Mueller Report withheld from Roger Stone Show the Centrality of His WikiLeaks Activities to Trump’s Obstruction

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Along with denying most of Roger Stone’s frivolous challenges to his prosecution, Amy Berman Jackson also partly granted his motion to get some of the redacted Mueller Report. As she laid out, she permitted the government to withhold grand jury information, sources and methods, stuff that would harm the reputation of others, and prosecutorial deliberations.

But the Court was of the view that the Report of the Special Counsel should receive separate consideration since a great deal of deliberative material within the Report had already been released to the public.

[snip]

Having considered the defendant’s motion, the government’s response and supplemental submissions, and the Report itself, the Court has determined that the defense should have the limited access he requested to some, but not all, of the redacted material.32 Insofar as defendant’s motion to compel seeks any material that was redacted from the public report on the basis that its release would infringe upon the personal privacy of third parties or cause them reputational harm; pursuant to Federal Rule of Criminal Procedure 6(e); or on the basis of national security or law enforcement concerns, including information that if revealed, could potentially compromise sensitive information gathering sources, methods, or techniques or harm ongoing intelligence or law enforcement activities, the Court will deny the motion.33 With respect to material that was withheld solely on the basis that its release could affect the ongoing prosecution of this case, the Court has concluded that the material to be specified in the order issued with this opinion should be provided to counsel for the defendant subject to the terms and conditions of the Protective Order in this case.

As she described, the government “submit[ed] unredacted portions of the Report that relate to defendant ‘and/or “the dissemination of hacked materials.”‘” Then she and the government conducted a sealed discussion about what could be released to Stone. In addition to her opinion, she submitted an order describing which specific pages must now be released to Stone.

We can compare what the government identified as fitting her order — this includes anything that fits the order, whether redacted or not — with what she has ordered released to Stone (note, the government either did not include Appendix D, showing referrals, or ABJ didn’t mention it, because in addition to an unredacted reference to Stone, there are referrals that the FOIA copies show to be related to Stone; nor did it include questions to Trump).

ABJ has not ordered the government to turn over anything pertaining to how GRU got stolen documents to WikiLeaks. This is precisely the kind of thing Stone is trying to get with his demands for Crowdstrike reports; after ABJ pointed out if they really wanted the reports, they would have tried subpoenaing Crowdstrike and they are now launching an attempt to do that. That ABJ has not ordered the government to turn this material over does not bode well for Stone’s plans to make this trial about the hack-and-leak rather than his lies. I would not be surprised if Stone made a second effort to get this information.

She has permitted the government to withhold all the prosecutorial decisions covered by her order except the one pertaining to Stone’s own lies. In addition, she let the government withhold one line about how they hadn’t determined whether or not Stone and Corsi had managed to optimize the release of the Podesta emails in October (though she did give Stone the more detailed discussion of that).

But ABJ has not included any of the references in the main part of Volume II in her order (presumably to protect Trump’s reputation!). That Volume includes three references to Trump and the campaign’s enthusiasm for or attempts to optimize the WikiLeaks releases through Stone, the reference to Richard Burr leaking news of the targets of the investigation (including Stone) to the White House before Jim Comey got fired, and three instances describing Trump floating pardons to Stone or otherwise encouraging him to remain silent.

It also includes the page on which this passage appears:

After Flynn was forced to resign, the press raised questions about why the President waited more than two weeks after the DOJ notification to remove Flynn and whether the President had known about Flynn’s contacts with Kislyak before the DOJ notification.244 The press also continued to raise questions about connections between Russia and the President’s campaign.245 On February 15, 2017, the President told reporters, “General Flynn is a wonderful man. I think he’s been treated very, very unfairly by the media.”246 On February 16, 2017, the President held a press conference and said that he removed Flynn because Flynn “didn’t tell the Vice President of the United States the facts, and then he didn’t remember. And that just wasn’t acceptable to me.” 247 The President said he did not direct Flynn to discuss sanctions with Kislyak, but “it certainly would have been okay with me if he did. I would have directed him to do it if I thought he wasn’t doing it. I didn’t direct him, but I would have directed him because that’s his job.”248 In listing the reasons for terminating Flynn, the President did not say that Flynn had lied to him.249 The President also denied having any connection to Russia, stating, “I have nothing to do with Russia. I told you, I have no deals there. I have no anything.”250 The President also said he “had nothing to do with” WikiLeaks’s publication of information hacked from the Clinton campaign.251 [my emphasis]

Clearly, it was included for Trump’s public denials — at the moment he fired Flynn in an attempt to stop the Russian investigation — of having anything to do with WikiLeaks’ publication of materials stolen from Hillary’s campaign. It is, on its face, a reference to the publication of the stolen emails, and as such qualifies under ABJ’s order. At that level, it is unremarkable.

But the government is treating it not as Trump making empty denials, but instead to make a claim specifically disavowing any involvement in WikiLeaks’ publication of stolen emails. Mueller’s team put the claim right next to a claim we know to be false, a claim designed to hide his Trump Tower deals. And he put all that amid a discussion of why he first did not, and then did, fire Mike Flynn.

Now consider something else: While it doesn’t appear in the Mueller Report at all, one thing Flynn told prosecutors was that after WikiLeaks started dumping John Podesta’s emails, he took part in conversations during which the campaign discussed 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.

There’s nothing in the public record that suggests Flynn knew of Trump’s efforts, during the campaign, to build a Trump Tower. But he did know about Trump’s efforts to optimize WikiLeaks’ releases of stolen emails. And Trump would have known that when he considered the impact of Flynn’s ties to Russia being investigated by the FBI.

And the treatment of that references as a real denial — as Trump evincing guilt even as he fired Flynn — sure makes the Flynn firing more interesting.

Roger Stone Points to Evidence His Witness Tampering Worked to Argue Selective Prosecution

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In an order rejecting most of Roger Stone’s first frivolous efforts to throw out his prosecution, Amy Berman Jackson explains why Randy Credico is not similarly situated to Stone for the purposes of his selective prosecution claim.

Defendant also characterizes Randy Credico as a similarly situated individual. In reliance upon a sealed transcript of Credico’s July 6, 2017 grand jury testimony, Stone identifies two statements Credico made about his communications with Stone that are inconsistent with the indictment and Stone’s own text messages. First, according to the defendant’s motion, Credico stated that he never discussed the head of Organization 1 with Stone, yet the Indictment in this case quotes an August 23, 2016 conversation between Stone and Credico in which they discuss the head of Organization 1.26 Disc. Mot. at 6; see Indictment ¶ 14(e). Second, Stone asserts that Credico provided information that he had never spoken to Stone about WikiLeaks prior to September 10, 2016, but Stone released text messages from August 19, 2016 in which Credico told Stone that he had a connection to Assange. Disc. Mem. at 7. [my emphasis]

What ABJ reveals — without saying so explicitly — is that Stone is pointing to lies Credico told at a previously undisclosed grand jury appearance. Credico’s previously known grand jury appearance was on September 7, 2018, over a year after the one in which Stone says he lied.

But that’s the entire point: Stone is accused of issuing threats to induce Credico to lie. And he has just made public evidence that — at a time when he was making those threats — Credico risked perjury charges in order to do as Stone wanted him to.

It’s a bad day for rat-fucking when in an attempt to mount a defense you make evidence public that your crimes were worse than previously known.

Federal Judge Destroys the Hopes of RICO Salvation in DNC Lawsuit

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Yesterday, Clinton-appointed Judge John Koeltl dismissed with prejudice the DNC’s lawsuit against Russia, Trump’s flunkies, and WikiLeaks alleging they conspired against the party in 2016. He also ruled against a Republican demand to sanction the DNC for sustaining their claim in the wake of Robert Mueller finding that he “did not establish” a conspiracy between Trump and Russia. Koeltl’s decision is unsurprising. But his decision is interesting nevertheless for what it reveals about his legal assessment of the events of 2016, not least because of the ways it does and does not parallel Mueller’s own decisions.

The scope of the two analyses is different: The Democrats alleged RICO and some wiretapping charges, as well as the theft of trade secrets; Mueller considered campaign finance crimes and a quid pro quo. A short version of the difference and similarity in outcome is that:

  1. Mueller charged the GRU officers who hacked the DNC for the hack (which DOJ has been doing for five years, but which has never been contested by a state-hacker defendant); by contrast, Judge Koeltl ruled that Russia’s hackers could not be sued under the Foreign Sovereign Immunities Act (which is what the Mystery Appellant tried to use to avoid responding to a subpoena); notably, Elliot Broidy’s attempt to blame Qatar for his hack serves as precedent here. For the DNC, this meant the key players in any claimed conspiracy could not be sued.
  2. While Democrats made a bid towards arguing that such a conspiracy went beyond getting Trump elected to getting Trump to enact policies that would benefit Russia, Koeltl treated any Trump role as just that, attempting to get Trump elected. This meant that (for example) Stone’s alleged criminal obstruction after Trump got elected was not deemed part of any conspiracy.
  3. As Mueller did with both the hack-and-leak itself but also with any campaign finance violation associated with getting hacked documents as assistance to a campaign, Koeltl ruled that the Supreme Court’s decision in Bartnicki meant the First Amendment protected everyone besides the Russians from liability for dissemination of the stolen documents.
  4. DNC’s RICO fails because, while the Trump campaign itself was an association, the DNC claim that there was an Association in Fact under RICO fails because the ties between individuals were too scattered and their goals were not the same. Moreover, the goal of the Trump associates — to get Trump elected — is in no way illegal.

The most important part of the decision — both for how it protects journalism, what it says about the EDVA charges against Julian Assange, and what it means for similar hack-and-leak dumps going forward — is Koeltl’s First Amendment analysis, in which he argued that even WikiLeaks could not be held liable for publishing documents, even if they knew they were stolen.

Like the defendant in Bartinicki, WikiLeaks did not play any role in the theft of the documents and it is undisputed that the stolen materials involve matters of public concern. However, the DNC argues that this case is distinguishable from Bartnicki because WikiLeaks solicited the documents from the GRU knowing that they were stolen and coordinated with the GRU and the Campaign to disseminate  the documents at times favorable to the Trump Campaign. The DNC argues that WikiLeaks should be considered an after-the-fact coconspirator for the theft based on its coordination to obtain and distribute the stolen materials.

As an initial matter, it is constitutionally insignificant that WikiLeaks knew the Russian Federation had stolen the documents when it published them. Indeed, in Bartnicki the Supreme Court noted that the radio host either did know, or at least had reason to know, that the communication at issue was unlawfully intercepted.

[snip]

And, contrary to the DNC’s argument, it is also irrelevant that WikiLeaks solicited the stolen documents from Russian agents. A person is entitled [sic] publish stolen documents that the publisher request from a source so long as the publisher did not participate in the theft. … Indeed, the DNC acknowledges that this is a common journalistic practice.

[snip]

WikiLeaks and its amici argue that holding WikiLeaks liable in this situation would also threaten freedom of the press. The DNC responds that this case does not threaten freedom of the press because WikiLeaks did not engage in normal journalistic practices by, for example, “asking foreign intelligence services to steal ‘new material’ from American targets.” … The DNC’s argument misconstrues its own allegations in the Second Amended Complaint. In the Second Amended Complaint, the DNC states that “WikiLeaks sent GRU operatives using the screenname Guccifer 2.0 a private message asking the operatives to ‘[s]end any new material (stolen from the DNC] her for us to review.'” … This was not a solicitation to steal documents but a request for material that had been stolen. [citations removed]

Koeltl analyzes whether the Democratic claim that GRU also stole trade secrets — such as their donors and voter engagement strategies — changes the calculus, but judges that because those things were newsworthy, “that would impermissibly elevate a purely private privacy interest to override the First Amendment interest in the publication of matters of the highest public concern.”

Koeltl goes on to note that the analysis would be the same for Trump’s associates, even though they make no claim (as WikiLeaks does) to being part of the media.

[E]ven if the documents had been provided directly to the Campaign, the Campaign defendants, the Agalarovs, Stone, and Mifsud, they could  have published the documents themselves without liability because they did not participate in the theft and the documents are of public concern. … Therefore, the DNC cannot hold these defendants liable for aiding and abetting publication when they would have been entitled to publish the stolen documents themselves without liability. [citations removed]

That analysis is absolutely right, and even while Democrats might hate this outcome and be dismayed by what this might portend about a repeat going forward, it is also how this country treats the First Amendment, both for those claiming to be journalists and those making no such claim.

All that said, there are several aspects of this analysis worth noting.

This is a DNC suit, not a suit by all harmed Democrats

First, this is a suit by the DNC. Neither Hillary nor John Podesta are parties. “Podesta’s emails had been stolen in a different cyberattack,” Koeltl said, “there is not allegation they were taken from the DNC’s servers.” Had they been, they would have had to have been prepared to submit to discovery by Trump and his associates.

Including Podesta might have changed the calculus somewhat, though Koeltl does not deal with them (though he does suggest they would not have changed his calculus).

They might change the calculus, however, because (as Emma Best has noted) WikiLeaks did solicit something — the transcripts of Hillary’s speeches — that was subsequently obtained in the Podesta hack. The DNC did not include that in their complaint and that might have changed Koeltl’s analysis or, at a minimum, tested one of the theories the government is currently using in the Assange prosecution.

Similarly, while there is now evidence in the record that suggests Stone may have had advanced knowledge even of the July 2016 DNC dump, the allegations that would show him having had an impact on the release of documents pertains to the release of the Podesta emails. Jerome Corsi (who was added in the DNC’s second complaint but not as a conspirator) claimed that he had helped Stone optimize the Podesta release in an attempt to drown out the Access Hollywood video, but Mueller was not able to corroborate that.

More tantalizingly, a filing in Stone’s case shows that in at least one warrant application, the government cited some conversation in which he and others — possibly Corsi and Ted Malloch — were discussing “phishing with John Podesta.” That’s not something that will be public for some time. But even if it suggested that Stone may have had more knowledge of the Podesta hack then let on, it would be meaningless in a suit brought by the DNC.

No one knows why Manafort shared polling data and his plans to win the Rust Belt (indirectly) with Oleg Deripaska

The second DNC complaint mentions, but does not explain, that Paul Manafort had Rick Gates send polling data to Konstantin Kilimnik intended to  be share with oligarchs including Oleg Deripaska.

At some point during the runup to the 2016 election, Manafort “shar[ed] polling data . . . related to the 2016 presidential campaign” with an individual connected to Russian military intelligence. This data could have helped Russia assess the most effective ways to interfere in the election, including how best to use stolen Democratic party materials to influence voters.

[snip]

In March 2016, the Trump Campaign also hired Manafort. As noted above, Manafort was millions of dollars in debt to Deripaska at the time. He was also broke.55 Yet he agreed to work for the Trump Campaign for free. A few days after he joined the Trump Campaign, Manafort emailed Kilimnik to discuss how they could use Manafort’s “media coverage” to settle his debt with Deripaska.56 Manafort had multiple discussions with Kilimnik in the runup to the 2016 election, including one in which Manafort “shar[ed] polling data . . . related to the 2016 presidential campaign.”57 This data could have helped Russia assess the most effective ways to interfere in the election, for instance, by helping it determine how best to utilize information stolen from the DNC .

[snip]

Manafort lied about sharing polling data with Kilimnik related to Trump’s 2016 campaign.226

The Mueller Report’s further details on the sharing, including Manafort’s review of his strategy to win the Rust Belt, came too late for the complaint. And as such, Koeltl doesn’t really deal with that allegation (which would likely require naming others as conspirators in any case), and instead treats any conspiracy as limited to the hack-and-leak.

Thus, he does not treat the hints of further coordination, nor is there currently enough public evidence for the DNC to get very far with that allegation. This is a ruling about an alleged hack-and-leak conspiracy, not a ruling about any wider cooperation to help Trump win the election.

No one knows what happened to the stolen DNC analytics

Finally, while the DNC complaint extensively described the September hack of its analytics hosted on AWS servers — a hack that took place after Stone scoffed at the analytics released to date by Guccifer 2.0 — Koeltl doesn’t treat that part of the hack in detail because it was never publicly shared with anyone.

The Second Amended Complaint does not allege that any materials from the September 2016 hack were disseminated to the public and counsel for the DNC acknowledged at the argument of the current motions that there is no such allegation.

The DNC included the analytics in their trade secret discussion, but given that Russia had FSIA immunity, and given that the GOP is not known to have received any of this, Koeltl did not consider the later theft (which is not known to have had the same public interest value as the claimed trade secrets that got leaked).

The SAC asserts: “The GRU could have derived significant economic value from the theft of the DNC’s data by, among other possibilities, selling the data to the highest bidder.” There is no allegation that the Russian Federation did in fact sell the DNC’s data, and any claims against the Russian Federation under the federal and state statutes prohibiting trade secret theft are barred by the FSIA.

Finally, given that it was not released publicly Koeltl does not consider how the GRU hack of analytics after Stone’s discussion of analytics with Guccifer 2.0 might change the analysis on whether Stone was involved prior to any hacks.

Similarly, Stone is alleged to have contacted WikiLeaks through Corsi for the first time on July 25, 2016 and spoke to GRU officers in August 2016 — months after the April 2016 hack. Stone is not alleged to have discussed stealing the DNC’s documents in any of these communications, or to have been aware of the hacks until after they took place.

[snip]

DNC does not raise a factual allegation that suggests that any of the defendants were even aware that the Russian Federation was planning to hack the DNC’s computers until after it had already done so.

Again, there’s too little know about the purpose of this part of the hack (which virtually no one is aware of, but which would have been particularly damaging for the Democrats), and as such the DNC would not be in a position to allege it in any case. But it is a key part of the hack that shifts the timeline Koeltl addressed.

Which ultimately leaves Koeltl’s final judgment about the DNC attempt to obtain some kind of remedy for having Trump welcome and capitalize on a foreign state’s actions to tamper in the election. “Relief from the alleged activities of the Russian Federation,” Koeltl said, “should be sought from the political branches of the Government and not from the courts.”

One of the few ways to do that is to impeach.

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

Right Wing “News” Site Deleted One of the Videos Prosecutors Wanted to Use at Roger Stone’s Trial

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Roger Stone and the government are beginning their fight over what evidence will be included and excluded in his November trial. The motions in limine submitted yesterday include:

  • A government motion to exclude any discussion about 1) Russian involvement in the hack of the DNC and 2) any coordination — or lack thereof — with Russia
  • A Stone motion to admit evidence that WikiLeaks did not receive the DNC, DCCC, or John Podesta emails from the Russian state (note the careful phrasing, which avoids addressing whether Russia did the hack itself); Stone does not explain what evidence he wants to submit, aside from mentioning his earlier motions related to this, which Amy Berman Jackson is sure to ding him for
  • A government motion to exclude claims of misconduct about the investigation
  • A government motion to admit this video from the Godfather II to explain what Stone’s allusions to Frank Pentangeli mean
  • A sealed government motion to submit two newspaper articles as part of 404(b) evidence (if I had to guess, I’d say these articles show that Stone not only had records of communications he denied having to HPSCI, but shared them with journalists when it became convenient)
  • A future government motion to admit the transcript of Stone’s HPSCI testimony (the government had tried to get Stone to stipulate to the accuracy of this transcript, but Stone ultimately refused a few days ago)
  • A government motion to admit the upload dates for various videos mentioned in the Indictment

The last motion is partly an attempt to lay out the timeline in these paragraphs of the indictment:

Starting in early August 2016, after receiving the August 2, 2016 email from Person 1, STONE made repeated statements about information he claimed to have learned from the head of Organization 1.

a. On or about August 8, 2016, STONE attended a public event at which he stated, “I actually have communicated with [the head of Organization 1]. I believe the next tranche of his documents pertain to the Clinton Foundation, but there’s no telling what the October surprise may be.”

b. On or about August 12, 2016, STONE stated during an interview that he was “in communication with [the head of Organization 1]” but was “not at liberty to discuss what I have.”

c. On or about August 16, 2016, STONE stated during an interview that “it became known on this program that I have had some back-channel communication with [Organization 1] and [the head of Organization 1].” In a second interview on or about the same day, STONE stated that he “communicated with [the head of Organization 1]” and that they had a “mutual acquaintance who is a fine gentleman.”

d. On or about August 18, 2016, STONE stated during a television interview that he had communicated with the head of Organization 1 through an “intermediary, somebody who is a mutual friend.”

When the government requested the upload times for the videos in paragraphs a through c on June 5 (the August 18 appearance was on CSPAN, from whom the government asked separately and even earlier for that upload time), they asked for the upload times of seven videos, including the ones linked above, this video of Julian Assange talking about WikiLeaks’ upcoming dump on Hillary Clinton, this August 4 interview with Alex Jones alleging Russia didn’t do the hack, and a Media Matters version of Stone’s August 8 Broward appearance (they posted it over 24 hours before Stone did).

But, as noted, one of those videos — described as a August 16 Alex Jones interview of Roger Stone — is not linked. As Google noted,

Regarding your attached legal request, after a diligent search and reasonable inquiry, we have found no records for any YouTube video file(s) identified as HXXwf-9otzU, as specified in your request. Therefore, we do not have documents responsive to your request.

The video was a mirror of the Alex Jones interview hosted by the right wing “news” channel, OpenMind.

There actually is a video of the interview (which actually appears to have taken place on August 15, not August 16), available from another site that mirrors Jones. But it appears that other site deleted the video; I’m fairly sure that happened after the government asked for it (the request was revealed the day it was filed).

The discrepancy of a day is not that great (and the government covered itself in any case with the “on or about” language. But I do find it mildly interesting that a propaganda channel tried to make the video unavailable.

The 18th Warrant Application against Roger Stone Investigated Hacking

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Update: A later ABJ ruling makes it clear that, true to form, Stone’s lawyers are completely disorganized and Exhibit 18 was not in fact the last warrant temporally.

Doug Collins asked some curious questions — amid a series of questions designed to rule out Robert Mueller passing non-public information to Democrats — at Wednesday’s hearing. He asked whether Mueller had obtained any additional information since closing up shop in May 2019.

COLLINS: Since closing the special counsel’s office in May of 2019, have you conducted any additional interviews or obtained any new information in your role as special counsel?

MUELLER: In the — in the — in the wake of the report?

COLLINS: Since the — since the closing of the office in May of 2019.

MUELLER: And the question was, have we conducted…

COLLINS: Have you conducted any new interviews, any new witnesses, anything?

MUELLER: No.

The conversation served as background to Collins’ questions about whether Trump or “those close to him” were involved in Russian conspiracies.

COLLINS: Isn’t it true the evidence did not establish that the president or those close to him were involved in the charged Russian computer hacking or active measure conspiracies or that the president otherwise had unlawful relationships with any Russian official, Volume 2, page 76? Correct?

MUELLER: I will leave the answer to our report.

COLLINS: So that is a yes.

The question is interesting for two reasons.

First, as I noted, Mueller’s resignation on May 29 preceded Roger Stone aide Andrew Miller’s agreement to testify to the grand jury by minutes. Mueller stayed in place long enough to ensure the subpoena served on Miller a year earlier would be enforced. But he did not, as Special Counsel, obtain that testimony; the DC US Attorney’s office did, using a different grand jury.

One thing Collins (who reportedly had lunch with Trump’s defense attorney Bill Barr before this hearing) would have done with his question is probe whether Mueller knew what has happened with Miller’s testimony to a different grand jury. But it would also mean that Mueller’s answer — that no one close to Trump was involved in any Russian computer hacking — would not cover Miller’s testimony and aftermath.

And that’s interesting because of the history of warrants obtained through February 2019 against Roger Stone.

Between August 2017 and February 2019, the government obtained eighteen search warrants for electronic facilities and properties related to Roger Stone. Doc. 109, Exs. 1-18. Many of these search warrants were issued in the District of Columbia by Chief Judge Beryl A. Howell. Doc. 109, Exs. 1-10, 16, 18. Three warrants were issued in the District by other district judges. See Ex. 11 (Judge Contreras); Ex. 12-13 (Judge Boasberg). Others were issued by magistrate judges in other districts. Exs. 14 (S.D.N.Y); Exs. 15, 17 (S.D. Fl.).

Fourteen of the affidavits (“the 1030 warrant affidavits”) allege probable cause that the search will yield evidence of a violation of 18 U.S.C. § 1030, which makes it a crime to “intentionally access[] a computer without authorization or exceed[] authorized access and thereby obtain[]…information from any protected computer.” 18 U.S.C. § 1030(a)(2)(C). See Exs. 1- 13, 18. In brief, each of these affidavits (at a minimum) states that Stone communicated with the Twitter account Guccifer 2.0 about hacked materials Guccifer had posted. Each affidavit states that on June 15, 2016, Guccifer 2.0 publicly claimed responsibility for the hack of the computer systems of the Democratic National Committee (“DNC”). Each affidavit states that Organization 1 published materials stolen from the DNC in the hack. Each affidavit describes Stone’s communications (including his own public statements about them) with Guccifer 2.0, Organization 1, and the head of Organization 1. Each affidavit submits that, based on those communications, there was probable cause to believe that evidence related to the DNC hack would be found in the specified location. Many of these affidavits contain additional evidence alleging probable cause to believe evidence will be found of violations of additional crimes, including 18 U.S.C. § 3 (accessory after the fact); 18 U.S.C. § 4 (misprision of a felony); 18 U.S.C. § 371 (conspiracy); 18 U.S.C. §§ 1505 and 1512 (obstruction of justice); 18 U.S.C. § 1513 (witness tampering); 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 contribution ban). See, e.g., Exs. 7-13 (all crimes). Stone raises no arguments regarding these other crimes.

In addition, four of the affidavits (the “false statement warrant affidavits”), issued close in time to Stone’s indictment, allege probable cause that the search will yield evidence of false statements, obstruction of justice, and witness tampering. See Exs. 14-17. Those affidavits set forth evidence supporting the allegations in the indictment that Stone made false statements in his September 2017 testimony before the House Permanent Select Committee on Intelligence (“HPSCI”), obstructed ongoing investigations, and tampered with a witness.

Starting in July 2017, the government obtained warrants targeting Stone investigating — among other things — hacking. In the time leading up to Stone’s indictment in January, the government obtained four warrants investigating just the false statements and witness tampering charges he was indicted for.

And then in February 2019, the government obtained one more warrant. It’s possible that’s the warrant, issued on February 13, reflected in the liberated docket of warrants, which would appear to cover searches of devices obtained from the searches on Stone’s homes. That one targeted hacking again.

Stone’s challenge to the search warrants against him started on May 10, and the government filing laying out the warrants issued between July 2017 and February 2019 was submitted on May 31, the same day Miller testified (and before he complied with an additional request for communications with Stone). So any claim to be discussing the totality of the warrants against Stone (even assuming they’d tell him about ones investigating crimes beyond his current indictment) would not reflect any investigative steps that followed on Miller’s testimony.

To be clear: if Collins knows of further investigation for Stone for hacking, then it’d be pretty likely that he learned of it because Barr was tampering with that investigation. So this is not to say that any ongoing investigation of the President’s rat-fucker will go anywhere.

But Collins’ questions of Mueller would have the effect of cabining off (whether or not that was the intent) any investigation of Stone that continued even in the minutes after Mueller resigned and Stone’s aide finally started testifying. And the last warrant obtained before that point shows that the government continued to investigate Stone for hacking crimes.

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