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Sergey Kislyak, Guccifer 2.0, and Maria Butina Walk into an Election Precinct

The Senate Intelligence Committee released a highly redacted version of their election security report. Much of it focuses on coded descriptions cataloging what happened in different states and what has happened as some states try to prepare better for that kind of election interference in the future; this discussion will be far more useful once reporters have carried out the fairly trivial work of identifying which states are referred to in the discussions.

That discussion also reflects a great deal of underlying tension not at all reflected in some of the early stories on the report. State officials bitched, justifiably, at coverage that doesn’t distinguish between scans and hacks, which fosters the panic that Russia probably hoped to create.

Many state election officials emphasized their concern that press coverage of, and increased attention to, election security could create the very impression the Russians were seeking to foster, namely undermining voters’ confidence in election integrity. Several insisted that whenever any official speaks publicly on this issue, they should state clearly the difference between a “scan” and a “hack,” and a few even went as far as to suggest that U.S. officials stop talking about the issue altogether. One state official said, “Wc need to walk a fine line between being forthcoming to the public and protecting voter confidence.

But Ron Wyden raised concerns that all these state level assessments rely on the states’ own data collection, meaning reports that no vote tallies were changed are probably not as reliable as people claim.

DHS’s prepared testimony at that hearing included the statement that it is “likely that cyber manipulation of U.S. election systems intended to change the outcome of a national election would be detected.” The language of this assessment raises questions, however, about DHS’s ability to identify cyber manipulation that could have affected a very close national election, particularly given DHS’s acknowledgment of the “possibility that individual or isolated cyber intrusions into U.S. election infrastructure could go undetected, especially at local levels.”‘^ Moreover, DHS has acknowledged that its assessment with regard to the detection of outcome-changing cyber manipulation did not apply to state-wide or local elections.

(U) Assessments about manipulations of voter registration databases are equally hampered by the absence of data. As the Committee acknowledges, it “has limited information on the extent to which state and local election authorities carried out forensic evaluation of registration databases.”

That is, we don’t actually know what happened in 2016, because so few states were collecting that data, and it remains true that few states are auditing their elections.

Perhaps one of the most interesting details about 2016, however, involves the Russian government’s efforts to get permission to act as election observers, something that shows up two times in the report. It appears that Russia went first to State, and then to localities.

The Russian Embassy placed a formal request to observe the elections with the Department of State, but also reached outside diplomatic channels in an attempt to secure permission directly from state and local election officials. ” 37 In objecting to these tactics, then-Assistant Secretary of State for European and Eurasian Affairs Victoria Nuland reminded the Russian Ambassador that Russia had refused invitations to participate in the official OSCE mission that was to observe the U.S. elections.38

There’s another, heavily redacted discussion of this later in the report, but that unredacted discussion does say that Russia was seeking access to voting sites in September, and that no one ever figured out what Russia planned to do.

Department of State were aware that Russia was attempting to send election observers to polling places in 2016. The true intention of these efforts is unknown.

[snip]

The Russian Embassy placed a formal request lo observe the elections with the Department of State, but also reached outside diplomatic channels in an attempt to secure permission directly from state and local election officials.”‘ For example, in September 2016, the State 5 Secretary of State denied a request by the Russian Consul General to allow a Russian government official inside a polling station on Election Day to study the U.S. election process, according to State 5 officials.

But the footnotes make it clear that Ambassador Sergey Kislyak was bitching about the response all the way up to November 7.

That section immediately precedes a partly redacted discussion of a possible Russian effort to sow misinformation about voter fraud.

What the report does not say, in unredacted form, is how Kislyak’s formal efforts overlap with two other Russian efforts. First, there’s the discussion Maria Butina and Aleksandr Torshin had about whether she should serve as an election observer.

Following this October 5, 2016 Twitter conversation, BUTINA and [Aleksandr Torshin] discussed whether BUTINA should volunteer to serve as a U.S. election observer from Russia and agreed that the risk was too high. [Torshin] expressed the opinion that the “risk of provocation is too high and the ‘media hype’ which comes after it,” and BUTINA agreed by responding, “Only incognito! Right now everything has to be quiet and careful.”

Then there’s Guccifer 2.0’s announcement, at a time when Kislyak was bitching that Russia had been denied access to election sites, that he was going to serve as a (nonsensical) FEC election observer, watching the vulnerabilities in

SSCI doesn’t go there, but at a minimum, Guccifer 2.0’s disinformation paralleled an overt effort by the Russian state, one that Butina considered, but decided against, joining.

Of course, as I’ve noted before, it wasn’t just Russian entities volunteering to act as election observers so as to sow chaos. Where Russia threatened to do so, Roger Stone succeeded.

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. 

Updated Questions for Robert Mueller

As I pointed out in this post, lots of commentators mistakenly believe Robert Mueller will never provide damning answers to strictly factual questions. In 2007, he answered a Sheila Jackson Lee question about the most incendiary issue of the day — Stellar Wind — in a way that shows the Attorney General had lied under oath. Yet most proposed questions for Mueller’s testimony on Wednesday seem to assume he won’t similarly answer appropriately framed questions now, and are for the most part milquetoast or horserace issues.

Here are my (updated since I first posted them in June) questions for Mueller. Some are formulated to get him to answer questions about scope or results he otherwise might not (note that there’s a gag now in both the IRA and Roger Stone cases, which will sharply curtail what he can say about those cases). Some are process questions that would help the public understand what Mueller did and did not do. A few are about potential legislation that might arise out of this investigation.

  1. Can you describe how you chose which “links between the Russian government and individuals associated with the campaign of President Donald Trump” to focus your investigation on?
  2. The warrants released in Michael Cohen’s case and other public materials show that your grand jury conducted investigations of people before Rod Rosenstein formally expanded the scope to include them in October 2017. Can you explain the relationship between investigative steps and the Rosenstein scope memos?
  3. Lisa Page has explained that in its initial phase, the investigation into Trump’s aides was separate from the larger investigation(s) into Russian interference. But ultimately, your office indicted Russians in both the trolling and the hack-and-leak conspiracies. How and when did those parts of DOJ’s investigation get integrated under SCO?
  4. An FD-302 memorializing a July 19, 2017 interview with Peter Strzok was released as part of Mike Flynn’s sentencing. Can you describe what the purpose of this interview was? How did the disclosure of Strzok’s texts with Lisa Page affect the recording (or perceived credibility) of this interview? Strzok was interviewed before that disclosure, but the 302 was not finalized until he had been removed from your team. Did his removal cause any delay in finalizing this 302?
  5. At the beginning of the investigation, your team investigated the criminal conduct of subjects unrelated to ties with Russia (for example, Paul Manafort’s ties with Ukraine, Mike Flynn’s ties to Turkey, Michael Cohen’s false statements to banks). Did the approach of the investigation change later in the process — in 2018 — to refer such issues to other offices (for example, the Cohen financial crimes)? If the approach changed, did your team or Rod Rosenstein drive this change?
  6. Prosecutors pursuing documents from an unnamed foreign owned company described that the investigation started at the DC US Attorney’s Office, was integrated into your investigation, and continued after your investigation concluded. Is this foreign owned company owned by a country other than Russia?
  7. Did your integration of other prosecutors (generally from DC USAO) into your prosecution teams stem from a resourcing issue or a desire to ensure continuity? What was the role of the three prosecutors who were just detailees to your team?
  8. Your report describes how FBI personnel shared foreign intelligence and counterintelligence information with the rest of FBI. For more than a year, FBI agents were embedded with your team for this purpose. Were these agents focused just on Russian activities, or did their focus include the actions of other countries and Americans? If their focus included Americans, did it include Trump associates? Did it include Trump himself?
  9. Can you describe the relationship between your GRU indictment and the WDPA one focused on the WADA hacks, and the relationship between your IRA indictment and the complaint against a Yevgeniy Prigozhin employee in EDVA? Can you describe the relationship between the Maria Butina prosecution and your investigation?
  10. Do you regret charging Concord Management in the IRA indictment? Do you have any insight on how indictments against Russian and other state targets should best be used?
  11. Particularly given difficulties in the Bijan Kian case, do you believe the laws on 18 USC 951 unregistered foreign agents and FARA need to be changed to provide the government with tools to protect the country from influence operations?
  12. In discussions of Paul Manafort’s plea deal that took place as part of his breach hearing, Andrew Weissmann revealed that prosecutors didn’t vet his testimony as they would other cooperators. What led to this lack of vetting? Did the timing of the election and the potential impact of Manafort’s DC trial might have play into the decision?
  13. What communication did you receive from whom in response to the BuzzFeed story on Trump’s role in Michael Cohen’s false testimony? How big an impact did that communication have on the decision to issue a correction?
  14. Did Matt Whitaker prevent you from describing Donald Trump specifically in Roger Stone’s indictment? Did you receive any feedback — from Whitaker or anyone else — for including a description of Trump in the Michael Cohen plea?
  15. Did Whitaker, Bill Barr, or Rosenstein weigh in on whether Trump should or could be subpoenaed? If so what did they say? Did any of the three impose time constraints that would have prevented you from subpoenaing the President?
  16. Multiple public reports describe Trump allies (possibly including Mike Flynn or his son) expressing certainty that Barr would shut down your investigation once he was confirmed. Did this happen? Can you describe what happened at the March 5, 2019 meeting where Barr was first briefed? Was that meeting really the first time you informed Rosenstein you would not make a determination on obstruction?
  17. You “ended” your investigation on March 22, at a time when at least two subpoena fights (Andrew Miller and a foreign owned corporation) were ongoing. You finally resigned just minutes before Andrew Miller agreed to cooperate on May 29. Were these subpoenas for information critical to your investigation?
  18. If Don Jr told you he would invoke the Fifth if subpoenaed by the grand jury, would that fact be protected by grand jury secrecy? Are you aware of evidence you received involving the President’s son that would lead him to be less willing to testify to your prosecutors than to congressional committees? Can congressional committees obtain that information?
  19. How many witnesses invoked their Fifth Amendment rights that your office deemed “were not … appropriate candidates for grants of immunity”?
  20. Your report describes five witnesses who testified under proffer agreements: Felix Sater, George Nader, Steve Bannon, Erik Prince, and Jerome Corsi. Aside from the Nader child pornography referred to EDVA by your office, would other US Attorneys offices be able to independently pursue criminal conduct covered by these proffers?
  21. Emin Agalarov canceled a concert tour to avoid subpoena in your investigation. Can you explain efforts to obtain testimony from this key player in the June 9 meeting? What other people did you try to obtain testimony from regarding the June 9 meeting?
  22. Did your investigation consider policy actions taken while Trump was President, such as Trump’s efforts to overturn Russian sanctions or his half-hearted efforts to comply with Congressional mandates to impose new ones?
  23. Can you describe how you treated actions authorized by Article II authority — such as the conduct of foreign policy, including sanctions, and the awarding of pardons — in your considerations of any criminal actions by the President?
  24. The President did not answer any questions about sanctions, even the one regarding discussions during the period of the election. Do you have unanswered questions about the role of sanctions relief and the Russian interference effort?
  25. Your report doesn’t include several of the most alarming interactions between Trump and Russia. It mentions how he told Sergey Lavrov and Sergey Kislyak he had fired Comey because of the Russian investigation, but did not mention that he shared classified Israeli intelligence at the meeting. Your report doesn’t mention the conversations Trump had with Vladimir Putin at the G-20 in Hamburg, including one pertaining to “adoptions,” while he was working on the June 9 meeting. The report doesn’t mention the Helsinki meeting. Did your investigation consider these interactions with Russia? If not, are you aware of another part of the government that did scrutinize these events?
  26. Why did you include Trump’s efforts to mislead the public about the June 9 meeting when it didn’t fit your team’s own terms for obstructive acts?
  27. You generally do not name the Trump lawyers who had discussions, including about pardons, with subjects of the investigation. How many different lawyers are described in your report to have had such discussions?
  28. In your report you say your office “limited its pursuit” of witnesses including attorneys “in light of internal Department of Justice policies,” citing the Justice manual. How many potential witnesses did your office not interview because of DOJ guidelines on interviewing attorneys?
  29. You asked — but the President provided only a partial answer — whether he had considered issuing a pardon for Julian Assange prior to the inauguration. Did you investigate the public efforts — including by Roger Stone — to pardon Assange during Trump’s Administration?
  30. The cooperation addendum in Mike Flynn’s case reveals that he participated in discussions about reaching out to WikiLeaks in the wake of the October 7 Podesta releases. But that does not appear in the unredacted parts of your report. Is the entire scope of the campaign’s interactions with WikiLeaks covered in the Roger Stone indictment?
  31. Hope Hicks has claimed to be unaware of a strategy to coordinate the WikiLeaks releases, yet even the unredacted parts of the report make it clear there was a concerted effort to optimize the releases. Is this a difference in vocabulary? Does it reflect unreliability on the part of Hicks’ testimony? Or did discussions of WikiLeaks remain partially segregated from the communications staff of the campaign?
  32. Without naming any of the people involved, how many witnesses confirmed knowing of conversations between Roger Stone and Donald Trump about WikiLeaks’ upcoming releases?
  33. Did Julian Assange ask for immunity to cooperate with your investigation, as he did with congressional inquiries?
  34. In your report you say your office “limited its pursuit” of witnesses who might claim to be media “in light of internal Department of Justice policies,” citing the Justice manual. How many potential witnesses did your office not interview because of DOJ guidelines on media? Was Julian Assange among them?
  35. The President’s answers regarding the Trump Tower Moscow match the false story for which Michael Cohen pled guilty, meaning the President, in his sworn answers, provided responses you have determined was a false story. After Cohen pled guilty, the President and his lawyer made public claims that are wholly inconsistent with his sworn written answer to you. You offered him an opportunity to clean up his sworn answer, but he did not. Do you consider the President’s current answer on this topic to be a lie?
  36. Did Trump Organization provide all the emails pertaining to the Trump Tower Moscow deal before you subpoenaed the organization in early 2018? Did they provide those emails in response to that subpoena?
  37. In his answers to your questions, President Trump claimed that you received “an email from a Sergei Prikhodko, who identified himself as Deputy Prime Minister of the Russian Federation … inviting me to participate in the St. Petersburg International Economic Forum.” But the footnotes to your discussion of that exchange describe no email. Did your team receive any email? Does the public record — showing that Trump never signed the declination letter to that investigation — show that Trump did not decline that invitation?
  38. The Attorney General has excused the President’s actions taken to thwart the investigation because, “as the Special Counsel’s report acknowledges, there is substantial evidence to show that the President was frustrated and angered by a sincere belief that the investigation was undermining his presidency.” What events did your investigation show the President was frustrated or angry about? Was the President frustrated or angry that Mike Flynn’s conversations with Sergey Kislyak had been discovered as part of an effort to understand Russia’s actions? According to your investigation, what were the President’s feelings towards Flynn at the time? Was the President frustrated or angry that, after consulting with ethics professionals,  Jeff Sessions recused from the investigation? Was the President frustrated or angry that Jim Comey would not provide details of the ongoing investigation into his aides, which would be prohibited by Department of Justice guidelines? Was the President frustrated or angry that the investigation into Russian interference showed that Russia actively sought to help him get elected?
  39. Organizationally your team separated the efforts to obstruct the investigation of Mike Flynn, Michael Cohen, Paul Manafort and others (which appears in Volume I) from the obstruction of the investigation of the President (which appears in Volume II). Why?
  40. In his aborted sentencing hearing, Brandon Van Grack told Judge Sullivan that Mike Flynn could have been charged as an Agent of a Foreign Power under 18 USC 951. More recently, prosecutors in Bijan Kian’s case have treated him as part of a conspiracy to violate that statute. Why did you give Mike Flynn such a lenient plea deal?

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 Steele Dossier and the Mueller Investigation: Michael Cohen

Update: I’m reposting this on July 20 because these warrants have been re-released in less redacted form. As noted below in the update on Section C, that previously redacted section does pertain to Michael Cohen’s hush payments to Stormy Daniels, meaning the only mention of the Steele Dossier in the earliest warrant on Cohen is just to a post-dossier WSJ article used exclusively to explain Cohen’s own description of how he served as Trump’s fixer. 

Because the frothy right thinks it’s an important question but won’t actually consult the public record, I’m doing a series on what that public record says about the relationship between the allegations in the Steele dossier and the known investigative steps against Trump’s associates. In this post, I argued that the way the Steele dossier influenced the Carter Page investigation may be slightly different than generally understood: it appears that the dossier appeared to predict — just like George Papadopoulos had — the release of the DNC emails on July 22. From that point forward, Page continued to do things — such as telling people in Moscow he was representing Donald Trump in December 2016, including on Ukraine policy — that were consistent with the general theory (though not the specific facts) laid out in the Steele dossier. That is, Page kept acting like the the Steele dossier said he would. That said, the government had plenty of reason before the Steele dossier to investigate Page for his stated willingness to share information with Russian spies, and his ongoing behavior continued to give them reason.

I’m more interested in the example of Michael Cohen.

The Steele dossier eventually describes Michael Cohen as the villain of coordination with Russia

The dossier makes allegations against Cohen four times, all after the time when Steele and Fusion GPS were shopping the dossier to the press, increasing the likelihood Russia got wind of the project and were shopping disinformation.

The first three mentions came on three consecutive days (probably based on just two sub-source to Kremlin insider conversations), all apparently sourced to the same second-hand access to a Kremlin insider, and evolving significantly over those three days.  Importantly, the sub-source is also the source for the claim that Page had been offered the brokerage of the publicly announced Rosneft sale, meaning this person purportedly had access to Igor Sechin and a Kremlin insider, and if this source was intentionally feeding disinformation, it would account for the most obviously suspect claims in the dossier.

October 18, 2016 (134): A Kremlin insider tells the sub-source that Michael Cohen was playing a key role in the Trump campaign’s relationship with the Kremlin.

October 19, 2016 (135): The Kremlin insider tells his source that Cohen met with Presidential Administration officials in August 2016 to discuss how to contain Manafort’s Russia/Ukraine scandal and Page’s secret meetings with Russian leaders. Since that August meeting Trump-Russian conversations increasingly took place via pro-government policy institutes.

October 20, 2016 (136): In a communication that “had to be cryptic for security reasons,” a Kremlin insider tells a friend on October 19 that the reported meeting with Cohen took place in Prague using Rossotrudnichestvo as a cover. It involved Duma Head of Foreign Relations Committee Konstantin Kosachev. This is notably different from the PA claim made just the day before.

Then there’s the final report, which Steele has claimed was provided for “free,” dated after David Corn and Kurt Eichenwald’s exposure of the dossier, after the election, after the Obama Administration ratcheted up the investigation on December 9, and after Steele had interested John McCain in the dossier. In addition to offering a report that seems to project blame onto Webzilla for what the Internet Research Agency did, this report alleges what would be a veritable smoking gun, missing from the earlier reports: that Cohen had helped pay for the hackers.

December 13, 2016 (166): The August meeting in Prague was no longer about how to manage the Manafort and Page scandals, but instead to figure out how to make deniable cash payments to hackers (located in Europe, including Romania, where the original Guccifer had come from, not Russia), who were managed by the Presidential Administration, not GRU.

This December report is really the only one that claims Trump had a criminal role in the hack-and-leak, but the claims in the report all engage with already public claims: situating the hackers where the persona Guccifer 2.0 claimed to be from, Romania, suggesting the hackers were independent hackers who had to be paid rather than Russian military officers, and blaming Webzilla rather than Internet Research Agency for disinformation. That is, more than any other, this report looks like it was tailored to the Russian cover story.

The way this story evolved over time should have raised concerns, as should have other obvious problems with the December report. But it’s worth noting that there are two grains of truth in it. Cohen had been the key interlocutor between the Trump campaign and the Presidential Administration during the campaign, but to discuss the building of a Trump Tower in Moscow in January, not how to steal the election in October. Few people (at least in the US) should have known that he had played that interlocutor role; how many knew in Russia is something else entirely. Cohen was also someone that people who had done business with Trump Organization, like Giorgi Rtslchiladze and people associated with Aras Agalarov’s Crocus Group, would know to be Trump’s fixer. That fact would have been far more widely known.

Nevertheless, by the end of it, Cohen was the biggest Trump-associate villain in the Steele dossier. If the Steele dossier had been directing the investigative priorities of the FBI, then Cohen should have been a focus for his role in the hack-and-leak as soon as the FBI received this report. Nothing in the public record suggests that happened. Indeed, at the time the FBI briefed the Gang of Eight on March 9, 2017, Cohen was not among the people described as subjects. Just Roger Stone had been added to the initial four subjects (Page, Manafort, George Papadopoulos, and Mike Flynn) by that point. Congress, including the Devin Nunes-led House Intelligence Committee, would focus closely on Cohen more quickly than the FBI appears to have.

That’s true even though Cohen was doing some of the things he would later be investigated for, including — immediately after the election — establishing financial ties with Viktor Vekselberg even while Felix Sater pitched him on a Ukraine deal.

Suspicious Activity Reports and the investigation into Cohen

The investigation into Cohen appears to have started — given this July 18, 2017 warrant application — as an investigation into suspicious payments, both Cohen’s payments to Stormy Daniels and payments from large, often foreign companies, particularly Columbus Nova, with which Viktor Vekelsberg has close ties, but also including Novartis, Korean Airlines, and Kazkommertsnank. The investigation probably started based off a Suspicious Activity Report submitted by First Republic Bank, where Cohen had multiple accounts, including one for Essential Consulting, where those foreign payments were deposited.

Cohen opened that Essential Consultants account on October 26, 2016, ostensibly to collect fees for domestic real estate consulting work, but in fact to pay off Stormy Daniels. His use of it to accept all those foreign payments would have properly attracted attention and a SAR from the bank under Know Your Customer mandates, particularly with his political exposure through Trump. Sometime in June 2017, First Republic submitted the first of at least three SARs on this account, covering seven months of activity on the account; that SAR and a later one was subsequently made unavailable in the Treasury system as part of a sensitive investigation, which led to a big stink in 2018 and ultimately to charges against an IRS investigator who leaked the other reports. The language of the third one appears to closely match the language in the warrant applications, including a reference to Viktor Vekselberg’s donations to Trump’s inauguration.

The first warrant application against Cohen

On June 21, the FBI served a preservation request to Google for his Gmail and to Microsoft for Cohen’s Trump Organization emails (see this post for the significance of Microsoft’s role). Generally that suggests that already by that point, FBI decided they would likely want that email, but needed to put together the case to get it. The preservation order on Microsoft suggests they may have worried that people at Trump’s company might destroy damning emails. It also suggests the FBI knew that there was something damaging in those emails, which almost certainly came in part from contact information the bank had and call records showing contacts with Felix Sater and Columbus Nova; it might also suggest the NSA may have intercepted some of Cohen’s contacts with Russians in normal collection targeting those Russians.

That July 2017 warrant (confirmed in later warrants to be the first one used against Cohen) lists Acting as a Foreign Agent (18 USC 951) and false statements to a financial institution. It explains:

[T]he FBI is investigating COHEN in connection with, inter alia, statements he made to a known financial institution (hereinafter “Bank 1”) in the course of opening a bank account held in the name of Essential Consultants, LLC and controlled by COHEN. The FBI is also investigating COHEN in connection with funds he received from entities controlled by foreign governments and/or foreign principals, and the activities he engaged in in the United States on their behalf without properly disclosing such relationships to the United States government.

In other words, the predicate for the investigation was his bank account — one in conjunction with which he would eventually plead guilty to several crimes — not the dossier. Had Cohen told the truth about why he was opening that bank account (to pay off the candidate’s former sex partners!), had he not conducted his international graft with it, had he been honest he was going to be accepting large payments from foreign companies, then he might not have been investigated. It’s possible that the public reporting on the dossier made the bank pay more attention, but his actions already reached the level that the bank was required to report it.

In the unredacted parts of the application, there is one citation of the dossier, but only to the title of a WSJ report on Cohen written in the wake of the dossier release, “Intelligence Dossier Puts Longtime Trump Fixer in Spotlight.” It uses the article in a section introducing who he is to cite Cohen explaining that he’s Trump’s “fìx-it guy . . . . Anything that [then-President-elect Trump] needs to be done, any issues that concern him, I handle,” not to describe any allegations in the dossier.

From there, it introduces the bank account, Essential Consulting.

Redacted section C

Update, 7/19: These warrants have now been unsealed, and — as media outlets originally reported — this section is about the hush payment to Stormy Daniels. The section also confirms that much of this investigation came from the KYC work of Cohen’s bank. I’ve marked the paragraphs that consider the possibility this section pertains to Russia with strike-through text.

The next section, C, is six paragraphs long (¶¶13 to 18), and remains entirely redacted. If the substance of the dossier appears in the warrant application, it would appear here. But such a redacted passage does not appear at all in a search warrant application for Paul Manafort from May, and no redacted passage appears as prominently in a Manafort warrant application from ten days later — which describes his relationship with three Russian oligarchs and the June 9 meeting — though there is a six page redaction describing the investigative interest in the June 9 meeting. The difference is significant because the dossier alleged that Manafort was managing relations with Russia until he left the campaign (including during June), so if there were redacted language about the dossier on Cohen, we would expect it to play a similar role in applications on Manafort, but nothing public suggests it does.

Some background on this redacted section. We got the Mueller-related warrants on Cohen because a bunch of media outlets asked Chief Judge Beryl Howell to liberate them on March 26, the week after Mueller officially finished his investigation. At first, Jonathan Kravis, the DC AUSA who has taken the lead in much of the ongoing Mueller word, noticed an appearance to respond. But it was actually Thomas McKay, one of the SDNY AUSA who prosecuted Cohen there, who responded to the request, along with another SDNY attorney.

Although the Warrant Materials were sought and obtained by the Special Counsel’s Office (“SCO”), the Government is represented in this matter by the undersigned attorneys from the United States Attorney’s Office for the Southern District of New York (“SDNY”), as the SCO’s investigation is now complete.

They argue that they’re willing to release the warrant materials under terms consistent with the terms used in SDNY, where information about the FBI affiants and information we know deals with the hush payments investigation got redacted.

Judge Pauley ruled that “the portions of the Materials relating to Cohen’s campaign finance crimes shall be redacted” to protect an ongoing law enforcement investigation, along with “the paragraphs of the search warrant affidavits describing the agents’ experience or law enforcement techniques and procedures.” Cohen, 2019 WL 472577, at *6. By contrast, Judge Pauley ordered that the portions of the materials that did not relate to the campaign finance investigation be unsealed, subject to limited redactions to protect the privacy interests of certain uncharged third parties. Id. at *6-7. Judge Pauley’s decision in these respects is also consistent with prior decisions of this Court, which have recognized the distinction between law enforcement interests in ongoing, as opposed to closed, investigations, as well as the importance of respecting privacy concerns for uncharged third parties. See, e.g., Matter of the Application of WP Company LLC, 16-mc-351 (BAH), 2016 WL 1604976, at *2 & n.2 (D.D.C. Apr. 1, 2016).

Consistent with the foregoing, the Government does not oppose the Petitioners’ request for partial unsealing, but respectfully requests that the Court authorize redactions consistent with those authorized by Judge Pauley in the SDNY litigation.

Because of this language, some people assume the redacted passage C relates to the hush payments, which were, after all, the reason Cohen opened the account in the first place. That may well be the case: if so, the logic of the warrant application would flow like this:

A: Michael Cohen

B: Essential Consultants, LLC

C: Use of Essential Consultants to pay hush payments

[Later warrants would include a new section, D, that described Cohen’s lies about his net worth to First Republic]

D: Foreign Transactions in the Essential Consultants Account with a Russian Nexus

i. Deposits by Columbus Nova, LLC

ii. Plan to Life Russian Sanctions

E: Other Foreign Transactions in the Essential Consultants Account

That would explain McKay’s role in submitting the redactions, as well as his discussion of redacting the warrant consistent with what was done in SDNY, to protect ongoing investigations. (The government will have to provide a status report in August on whether these files still need to be redacted.)

That said, it was not until April 7, 2018 that anyone first asked for a warrant to access Cohen’s email accounts in conjunction with the campaign finance crimes. And some SARs submitted in conjunction with the hush payments, such as one associated with the $130,000 payment on October 27, 2016 to then Daniels lawyer Keith Davidson and one from JP Morgan Chase reflecting the transfer from the Essentials Consulting account to Davidson’s were not restricted in May 2018 in conjunction with a sensitive investigation (nor was the third one reflecting the foreign payments described above), suggesting they weren’t the most sensitive bits in May 2018. Of note, the Elliot Broidy payments to Essential Consulting would post-date this period of the investigation.

That leaves a possibility (though not that likely of one) that Section C could describe the Russian investigation. The next passage after the redacted one describes the “foreign transactions in the Essential Consultants Account with a Russian nexus” (though, as noted, subsequent warrants describe Cohen’s lies in the following paragraph). It describes the $416,664 in payments from Columbus Nova, and describes the tie between Columbus Nova and Vekselberg. After introducing the payments, the affidavit describes the public report on a back channel peace plan pitched by Felix Sater on behalf of Ukrainian politician Andrii Artemenko.

Another possibility is that it describes Trump’s inauguration graft, which embroils Cohen and Broidy (though the investigation into Broidy is in EDNY, not SDNY).

Perhaps most likely, however, is that that section just describes other reasons why that Essential Consulting account merited a SAR. For example, it might describe how Cohen set up a shell company to register the company, something that doesn’t show up in the unredacted sections, but which is a key part of the hush payment prosecution.

If the section does not mention the Russian investigation generally (and the dossier specifically), then it means there is no substantive mention of it in the warrant at all, meaning it played at most a secondary role in the focus on Cohen.

As the timeline of the investigation into Cohen below shows, that redacted section would grow by one paragraph in the next warrant application, for Cohen’s Trump Organization emails, obtained just two weeks later. It would remain that length for all the other unsealed Mueller warrants.

Felix Sater and the investigation into Cohen

The way in which Sater is mentioned in the warrants against Cohen presents conflicting information about what might be in that redacted section. Significantly, Sater (described as Person 3) is introduced as if for the first time, in the discussion of the Ukrainian deal that appears after the redaction. That means that he doesn’t appear in the redacted material. That’s important because Sater would be one other possible focus of any introduction to why Cohen would become the focus of the Russian investigation (aside from the dossier).

The next warrant would also note numerous calls with Sater, reflecting legal process for call records not identified here (the government almost certainly had a PRTT on Cohen’s phones by then). But those calls, as described, were in early 2017 (tied to the suspected Ukrainian peace plan), not in 2015-2016 when the two men were discussing a Trump Tower Moscow.

Mueller interviewed Sater on September 19, 2017, the first of two FBI interviews (he also appeared before the grand jury on an unknown date).

One of the most interesting changes to the Mueller warrants happens after that: In warrant applications submitted on November 13, the unredacted discussion of the Ukraine peace deal gets dropped. It’s unlikely Mueller’s investigation of it was eliminated entirely, because Mike Flynn, who allegedly ultimately received that deal, is not known to have been cooperating yet (his first known proffer was three days later, on November 16), and Mueller was still interested in interviewing Andrii  Artemenko — the Ukrainian politician who pitched the deal — in June 2018.

In addition, based off the details in the Mueller Report cited to Sater’s September interview, Mueller was already investigating the Trump Tower deal. That suggests both topics — the Trump Tower deal and the Ukranian peace pitch — could appear in the redacted passage. Indeed, while the unredacted passages don’t explain it, one important reason to obtain the earlier emails would be to obtain the communications between Sater and Cohen during that period.

None of these warrants explain why Mueller became convinced that Cohen had lied to Congress, but by the second December interview of Sater, he presumably knew that Cohen had lied. But he probably didn’t have all the documents on the deal until he subpoenaed Trump Organization in March 2018.

All of which is to say, the treatment of the warrants’ Sater’s ties to Cohen, so important in any consideration of Cohen’s ties to Russia, ultimately don’t help determine what’s in that section.

If Mueller obtained Cohen’s location data, it was only second-hand

Finally, there’s one other detail not shown in the Mueller warrants you might expect to have if the Steele dossier was central to the Cohen investigation: a concerted effort to confirm his location during August 2016, when the dossier claimed he had been in Prague.

Granted, by obtaining records from Google, Mueller would get lots of information helpful to confirming location. For example, Google would have provided all the IP addresses from which Cohen accessed his account going back to January 2016. He would have obtained calendar data, if Cohen used that Google function. The warrant (as all warrants to Google would) asks for “evidence … to determine the geographic and chronological context of account access” and describes the various ways investigators can use Google to ID location (though it doesn’t specifically talk about location data in conjunction with Google Maps).

Mueller would get even more information from the Apple warrant obtained on August 7, 2017. The warrant for Cohen’s iCloud account on August 7 focused on a new iPhone (a 4s!!!) he obtained on September 28, 2016 and used for a function that gets redacted (which, again, could be the hush payments). It described his use of Dust and WhatsApp on the phone (Dust was what he used with Felix Sater), meaning one reason they were interested in the account was not for Cohen’s Apple content, but for anything associated with the apps he used on his phone (remember that Mueller got Manafort’s otherwise encrypted WhatsApp chats from Apple; the Apple specific language notes that some users back up their WhatsApp texts to iCloud). That said, the language on Apple (as all warrants on it would) specified that users sometimes capture location data with the apps on their phones.

Apple allows applications and websites to use information from cellular, Wi-Fi, Global Positioning System (“GPS”) networks, and Bluetooth, to determine a user’s approximate location.

This is a way the FBI has increasingly gotten location data in recent years, via the apps that access it from your phone. So the FBI would have gotten information that would have helped them rule out a Cohen trip to Prague in 2016.

That said, it’s not until April 7 that the government obtained the only known warrant for cell location data. That warrant focused only on the campaign finance crimes, and it obtained historical data only started on October 1, 2016 — pointedly excluding the August 2016 period when Steele’s dossier alleged Cohen was in Prague.

In short, along the way, Mueller obtained plenty of information that would help him exclude a Prague meeting (and subpoenas and other government information — such as his Homeland Security file — could have helped further exclude a meeting). But there’s no sign in the public record that Mueller investigated the Steele dossier Prague meeting itself.

To sum up: while it’s possible the redacted portions discuss Russia and therefore potentially the dossier. But there are a lot of reasons to think that’s not the case. It is hypothetically possible that between March (when FBI wasn’t investigating Cohen) and May (when Mueller took over) the FBI had done something to chase down the dossier allegations on Cohen. But, there’s no evidence that Mueller investigated them. On the contrary, it appears that the investigation into Cohen arose from the Bank Secrecy Act operating the way it is designed to — to alert the Feds to suspect activity in timely fashion.

In another world, that should placate the frothy right. After all, they complain that the dossier was used in Carter Page’s FISA application. You’d think they’d be happy that, in the eight months between the time FBI obtained that order and started investigating Cohen aggressively, they hadn’t predicated an investigation into the dossier. By that time, there were overt things — like Vekselberg’s donation to the inauguration and the Ukraine plan — that were suspect and grounded in direct evidence.

Timeline

May 18, 2017: Possible date for meeting involving Jay Sekulow, Trump, and Cohen.

May 31, 2017: Cohen and lawfirm subpoenaed by HPSCI.

June 2017: A SAR from Cohen’s bank reflects seven months of suspicious activity in conjunction with this Essential Consulting account

June 2017: Federal Agents review Cohen’s bank accounts.

June 21, 2017: FBI sends a preservation request to Microsoft for Cohen’s Trump Org account.

July 14, 2017: FBI sends a preservation request to Microsoft for all Trump Org accounts.

July 18, 2017: FBI obtains a warrant for Cohen’s Gmail account focused on FARA charges tied primarily to the Columbus Nova stuff, but also his other foreign payments). ¶¶13-18 redacted.

July 20, 2017 and July 25, 2017: Microsoft responds to grand jury subpoenas about both Cohen’s account and TrumpOrg domain generally.

August 1, 2017: FBI obtains a warrant for Cohen’s Trump Org email account (which they obtained from Microsoft), adding bank fraud, money laundering, and FARA (as distinct from 951) to potential charges. ¶¶13-19 redacted. ¶¶20 to 24 note irregularities in claims to First Republic. ¶28 details how Cohen and Andrew Intrater started texting in large amounts on November 8, 2016, showing over 230 calls and 950 texts between then and July 14, 2017. ¶30 includes email reflecting visit to Columbus Nova. ¶31 reflects probable subpoena to bank (rather than just SARs). ¶32 describes Renova paying Cohen through Columbus Nova. ¶36 reflects phone records showing 20 calls with Felix Sater between January 5, 2017 and February 20, 2017, and one with Flynn on January 11, 2017. ¶39, ¶41 include new evidence from Google search.

August 7, 2017: FBI obtains a warrant for Cohen’s Apple ID (tied to his Google email). ¶¶14-20 redacted. ¶50-54 describes Cohen obtaining a new Apple iPhone 4s on September 28, 2016 and using it for a redacted purpose. It describes Cohen downloading Dust (the same encrypted program he used with Felix Sater) the day he set up the phone, and downloading WhatsApp on February 7, 2017.

August 17, 2017: FBI obtains second warrant on Cohen’s Gmail, not publicly released, but identified in second Google warrant. It probably added wire fraud to existing charges being investigated.

August 27-28, 2017: Cohen conducts a preemptive limited hangout on the Trump Tower story feeding WaPo, WSJ, and NYT.

August 31, 2017: Cohen releases the letter his attorney had sent — two weeks earlier — along with two earlier tranches of documents for Congress.

September 19, 2017: FBI interviews Sater. Cohen attempts to preempt an interview with SSCI by releasing a partial statement before testifying, only to have SSCI balk and reschedule the interview.

October 4, 2017: Additional SAR restricted because of ongoing sensitive investigations.

October 20, 2017: Cohen included in expanded scope of investigation.

October 24, 2017: HPSCI interviews Cohen.

October 25, 2017: SSCI interviews Cohen.

November 7, 2017: Mueller extends PR/TT on Cohen Gmail.

November 13, 2017: FBI obtains Cohen’s Gmail going back to June 1, 2015 and his 1&1 email. Adds wire fraud. ¶14-20 redacted.¶23a-25 adds Taxi medallion liability. Eliminates Ukraine/sanctions plan in unredacted section. Adds section F, payments in connection with political activities (associated with AT&T, expand Novartis, add Michael D Cohen and Associates.

December 15, 2017: FBI interviews Sater.

January 4, 2018: Mueller extends PR/TT on Cohen Gmail.

February 8, 2018: Mueller provides SDNY with Gmail and 1&1 email returns.

February 16, 2018: SDNY obtains d-order for header information on 1&1 account.

February 28, 2018: SDNY obtains warrant for emails sent after November 14, 2017 and warrant for emails Mueller handed over in conjunction with different conspiracy, false statements to a bank, wire fraud, and and bank fraud charges.

March 7, 2018: Mueller provides SDNY with iCloud returns.

March 15, 2018: Press reports that Mueller subpoenaed Trump Organization.

April 5, 2018: After CLOUD Act passes, SDNY applies for Google content that had been stored overseas and withheld in February 28 warrant.

April 7, 2018: FBI obtains warrant for cell location for two cell phones, tied only to illegal campaign donation investigation (the FBI would use this to use a triggerfish to identify which room he was in at Loews). FBI obtains warrant to access prior content for use in campaign donation investigation. This is the first warrant that lists 52 USC 30116 and 30109 as crimes being investigated.

April 8, 2018: FBI obtains warrant for cell location for two cell phones, tied only to illegal campaign donation investigation.FBI obtains warrant to search Cohen’s house, office, safe deposit box, hotel room, and two iPhones.

April 9, 2018: FBI obtains a warrant to correct Cohen’s hotel room.

June 20, 2018: Cohen steps down from RNC position.

July 27, 2018: Sources claim Cohen is willing to testify he was present, with others, when Trump approved of the June 9 meeting with the Russians.

August 7, 2018: First Cohen proffer to Mueller.

August 21, 2018: Cohen pleads guilty to SDNY charges. Warner and Burr publicly note that Cohen’s claim to know about the June 9 meeting ahead of time conflicts with his testimony to the committee.

September 12, 2018: Second proffer.

September 18, 2018: Third proffer.

October 8, 2018: Fourth proffer.

October 17, 2018: Fifth proffer.

November 12, 2018: Sixth proffer.

November 20, 2018: Seventh proffer.

November 29, 2018: Cohen pleads guilty to false statements charge.

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. 

Democrats Are Setting Themselves Up to Fail on Mueller Hearings

In a House Judiciary Committee hearing about the most controversial topic of the day 12 years ago, Robert Mueller provided testimony that sharply contradicted the sworn testimony of the Attorney General. He confirmed that the March 10, 2004 hospital confrontation between Jim Comey and the White House concerned a disagreement about the legality of the Stellar Wind warrantless wiretapping program, contrary to the earlier claims of Alberto Gonzales.

“I had an understanding that the discussion was on a N.S.A. program,” Mr. Mueller said in answer to a question from Representative Sheila Jackson Lee, Democrat of Texas, in a hearing before the House Judiciary Committee.

Asked whether he was referring to the Terrorist Surveillance Program, or T.S.P., he replied, “The discussion was on a national N.S.A. program that has been much discussed, yes.”

Mr. Mueller said he had taken notes of some of his conversations about the issue, and after the hearing the committee asked him to produce them.

[snip]

In a four-hour appearance before the Senate Judiciary Committee on Tuesday, Mr. Gonzales denied that the dispute arose over the Terrorist Surveillance Program, whose existence was confirmed by President Bush in December 2005 after it had been disclosed by The New York Times. Mr. Gonzales said it centered on “other intelligence activities.”

That event, like Russian investigation, involved a constitutional crisis and uncertain matters of law. It involved issues made more controversial by Jim Comey’s at times imperfect efforts to uphold principle. Mueller’s testimony specifically confirmed suspicions about the deceit and criminal exposure of the Attorney General, possibly contributing to his resignation a month later.

Sheila Jackson Lee — who remains on HJC — asked the question, and Mueller answered truthfully, and then provided evidence to back up his testimony.

And yet, even after studying Mueller’s past testimony to Congress (presumably including that hearing), House Democrats have themselves convinced that Mueller won’t be all that forthcoming in his hearing next week.

“I don’t think Mr. Mueller, based on everything I know about him, that anyone should expect any major departure from the contents of the report,” said Rep. David Cicilline, a Rhode Island Democrat on the Judiciary Committee. “I do think the contents of the report are so significant and so damning that when Mr. Mueller brings them to life and actually tells the American people … it will have an impact.”

The committees recognize that Mueller is a reluctant witness, and has stated he does not intend to answer questions beyond the contents of his report. The committee aides said they planned to respect Mueller’s desires but noted Congress isn’t bound by such limits. The aides anticipate questions will go beyond what’s written in the report, such as asking Mueller whether certain episodes detailed would have been crimes had they not involved the President — after Mueller said that his office followed Justice Department legal opinion that a sitting president cannot be indicted.

[snip]

Mueller’s long government career has given the two committees plenty of material to study from Mueller’s past congressional appearances. The bottom line is they don’t expect Mueller to readily volunteer information, aides say, particularly given that he doesn’t want to testify before Congress.

As Jackson Lee demonstrated years ago, a properly phrased question will elicit an honest answer from Mueller.

But that’s not my main complaint about the reported preparations for Mueller’s testimony next week: it’s that Democrats have locked themselves into a division of labor — with HJC focusing on the evidence showing Trump obstructed justice and the House Intelligence Committee focusing on details of Trump’s enthusiasm for the Russian attack — that leaves out the larger framework of the investigation (and aftermath), may not touch on the area that, given the focus of his press conference, Mueller’s likely to be most forthcoming about (the extent of the Russian operation), and threatens to make a weaker case for both obstruction and “collusion.”

I hope to finally write my narratology of the Mueller Report to lay out the latter point. My questions for Mueller (which I’ll update before next Wednesday) include some that — like the Jackson Lee question twelve years ago — are factual questions that may do more to illuminate the actions of others than questions designed solely to get Mueller to recapitulate what’s already in the report.

But one of the biggest reasons I’m concerned about this approach is that Democrats are adopting a structure Mueller did –separating Trump associates’ efforts to obstruct an investigation into a possible conspiracy from Trump’s own efforts to obstruct an investigation into a conspiracy — that serves to water down the impact of the report.

This report was not, as most people commenting on it seem to believe, a report “of what Mueller found.” Rather, it is strictly limited to prosecutorial decisions, and as such doesn’t include evidence Mueller obtained that’s not important to explain why he chose to charge people or not.

His report produced the following prosecutorial decisions: 

As noted with the shading the break between Volume I and Volume II is not actually a break between the conspiracy investigation (Russia’s interference in the election and Trump Associates’ ties with Russia) and the obstruction investigation (matters arising from the investigation). Prosecutorial decisions relating to the cover-up appear in both Volume I and Volume II. It’s unclear why Mueller organized it like that (this would actually be an interesting question); perhaps he did it because he didn’t reach a prosecutorial decision about Trump or perhaps because he wanted to provide an impeachment referral for Congress.

But the effect of the organization is that it severs the discussion of the suspicious actions from the efforts to cover up those actions.

To illustrate why this is important, consider the June 9 meeting. The actual events behind that are:

  • Don Jr willingly accepted dirt on Hillary offered as part of the Russian government’s support for Trump
  • According to two witnesses, Trump probably knew about the meeting ahead of time (but did not plan a speech around it, as some suspected)
  • Don Jr and Emin Agalarov had several conversations about what the meeting would be
  • At the meeting, Don Jr agreed to consider sanctions relief even after he grew fed up that the dirt wasn’t very interesting
  • When the Trump team identified this meeting as an area of focus for Congressional and other investigations, Trump repeatedly responded in a way that — according to Hope Hicks — was totally uncharacteristic; either he or she also considered withholding the evidence from investigators
  • Trump personally issued a blatantly misleading statement on the meeting (after talking with Putin about that cover story, though that detail doesn’t show up in the report, which is another thing worth asking about)
  • Although he willingly sat for interviews with three Congressional committees — even after the report came out — Don Jr refused to appear before the grand jury
  • Emin Agalarov canceled an entire concert tour to avoid being questioned about the meeting or — more importantly — what he told Don Jr on those phone calls

From the point of view of the crime of obstruction of justice, the June 9 meeting is the weakest case, in part because Don Jr avoided getting caught in a lie about it (and so was not charged in parallel with Flynn and Stone). Given their focus on treating Volume II as an obstruction of justice impeachment referral rather than the complete cover-up, HJC is not treating this incident. But it’s one of the most damning examples showing that Trump and his family acted to accept Russian help.

And consider how Manafort’s sharing of polling data will get watered down with this approach to questioning. One of the most obvious ways to illustrate the impact of Trump’s obstruction is to lay out that Mueller was never able to establish why Manafort was trading Ukraine away at a meeting where he also discussed how to win MI and WI. It looks like a smoking gun, but Mueller was never able to fully investigate it (Manafort’s use of encryption helped things along here, too). And one key reason why he was never able to investigate it is because Manafort believed Trump would pardon him if he lied, and he did lie.

Note, too, that while Mueller notes that Manafort lied in footnotes, unless he’s the redacted person who lied to the grand jury in the prosecutions section, Mueller did not describe his prosecutorial decision not to charge Manafort for lying to the grand jury in that section.

As laid out (according to these reports), HPSCI is going to investigate the equivalent of the Watergate burglary, while HJC will investigate the cover-up of the burglary. Worse, HJC will go first, so it’s not like people watching the entire day will have been reminded about the burglary before HJC delves into the cover-up of it.

In other words, dividing the questioning the way reports say the committees will separates a discussion of the cover-up from the actions Trump covered up. That, in turn, makes it a lot harder to show that one reason Mueller didn’t collect enough evidence to charge a conspiracy is because of that cover up.

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. 

Roger Stone Lawyer Bruce Rogow Concedes His CrowdStrike Ploy Was Just That

Most of the reporting on Roger Stone’s status hearing yesterday has focused on whether Judge Amy Berman Jackson would hold Stone in contempt for violating her gag. She did find he had violated her gag, but responded only by prohibiting him from using Twitter, Facebook, or Instagram — an outcome consistent with what I laid out here. Shortly after the hearing ended, Stone’s spouse, Nydia, posted a picture of the two of them on Instagram, though on terms that are within the terms permitted by ABJ’s gag.

I’m more interested, however, in the exchanges covering Stone’s Fourth Amendment challenge to all the warrants against him and his demand to obtain full copies of the CrowdStrike reports (including descriptions of what new defenses CrowdStrike implemented) provided to the Democrats and shared with the FBI, a pair of motions that Stone successfully used to inflame conspiracies among frothy right and denialist left.

It was always clear this was about disinformation. After all, the very same lawyers had argued for the very same client that Russia did do the hack in the DNC lawsuit.

Predictably, ABJ was clearly having none of the Fourth Amendment challenge. She repeatedly challenged Stone’s motion by undermining his false claim, noting that the FBI relied on the US Intelligence Committee’s attribution of the DNC hack to Russia and not — as Stone had claimed and the useful idiots responding to his motion had repeated unquestioningly — the CrowdStrike reports. Aaron Zelinsky sounded like a DFH blogger when he described the effort as an attempt, “to backdoor a debunked conspiracy theory.”

A more telling moment came when ABJ got Bruce Rogow to concede that Stone’s team had not acted as if they really needed the CrowdStrike reports, as they had claimed to inflame their useful idiots.

The government had represented they didn’t have the full reports (as noted, in the reports the Democrats shared with the FBI, they redacted the information describing what they did to harden their networks).

At the direction of the DNC and DCCC’s legal counsel, CrowdStrike prepared three draft reports.1 Copies of these reports were subsequently produced voluntarily to the government by counsel for the DNC and DCCC. 2 At the time of the voluntary production, counsel for the DNC told the government that the redacted material concerned steps taken to remediate the attack and to harden the DNC and DCCC systems against future attack. According to counsel, no redacted information concerned the attribution of the attack to Russian actors. The government has also provided defense counsel the opportunity to review additional reports obtained from CrowdStrike related to the hack.

[snip]

As the government has advised the defendant in a letter following the defendant’s filing, the government does not possess the material the defendant seeks; the material was provided to the government by counsel for the DNC with the remediation information redacted. However, the government has provided defense counsel the opportunity to review additional unredacted CrowdStrike reports it possesses, and defense counsel has done so. 3

1 Although the reports produced to the defendant are marked “draft,” counsel for the DNC and DCCC informed the government that they are the last version of the report produced.

2 The defendant describes the reports as “ heavily redacted documents,” Doc. 103, at 1. One report is thirty-one pages; only five lines in the executive summary are redacted. Another runs sixty-two pages, and redactions appear on twelve pages. The last report is fifty-four pages, and redactions appear on ten pages.

3 These materials are likewise not covered by Brady, but the government produced them for defense counsel review in an abundance of caution.

As ABJ noted, given the representation that the government doesn’t have full unredacted reports, asking for them from the government is pointless, something Rogow conceded. The way to get the full reports, ABJ noted, would be to subpoena them from the Democrats or CrowdStrike itself.

And Stone’s lawyer admitted they hadn’t done that.

This is tantamount to a confession that Stone never really needed the documents in the first place, but instead only wanted to use them to stake a false claim about them in the press.

And given the large number of people who repeated the claim credulously, that effort succeeded.

Update: After issuing a minute order yesterday, ABJ issued a written one today, making it clear that Stone can’t just move to Gab or have Nydia post for him to get around the gag.

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. 

Renewing My Obsession with Paul Manafort’s iPods: Robert Mueller’s 2,300 Media Devices

In an attempt to argue that properly processing Jason Leopold’s admittedly very broad FOIA for materials relating to the Mueller investigation, DOJ has claimed that it would need to process the contents of 2,300 media devices to fully comply with his FOIA, which would amount to more content than is stored in the Library of Congress.

For Request No. DOJ-2019-003143—Plaintiffs’ request for all records from the Office of the Special Counsel—the volume of responsive documents is enormous. Defendant estimates that the approximate number of responsive records that OIP would process is as follows:

  • 11 terabytes of non-email digital data, which is the approximate equivalent of 825 million pages (assuming each terabyte consists of 75 million pages); and
  • 318 gigabytes of email, which is the approximate equivalent of over 215 million pages (assuming each gigabyte consists of 677,963 pages).

Defendant estimates that the approximate number of responsive records that FBI would process is as follows:

  • More than 2 million pages of investigative records that are not on media devices; and
  • More than 2,300 media devices that have a combined storage capacity of 240 terabytes of data. If these devices are filled to capacity, this is the approximate equivalent 18 billion pages. [my emphasis]

I find that number — 2,300 — intriguing, given that in the public records on the investigation, I’m not sure we’ve seen warrants reflecting that volume of production. As a reminder, here’s what we know about the warrants obtained in the DC District; there are around 321 docket entries, the better part of which are for stored content rather than searches of media devices. The volume of devices obtained with DC searches would mean the balance of the 500 warrants Mueller obtained are either still sealed, precede Mueller’s appointment, or in other districts.

As a test of how we get to that number, consider what we learned as part of my continuing obsession with Paul Manafort’s iPod habit (I was interested in that habit, in part, because iPods can be used for non-telephonic texting). Just from the search of Manafort’s condo, the government obtained the contents of over 83 devices (note there were some device extractions done as part of the search).

  • 4 DVD discs
  • 7 external hard drives
  • 12 SD cards
  • 7 memory sticks
  • 1 micro SD card
  • 1 iPod
  • 3 compact flash cards
  • 1 MacBook Air hard drive
  • 2 iPads
  • 9 thumb drives
  • 1 iPhone
  • 1 micro vault pro
  • 1 DEWF_COMBO1: A 1TB (containing forensic images and device extractions from rooms: C, F, K, and Q)
  • 7 iPods
  • 1 iMac (including 1 Solid State Drive (SSD) and 1 Hard Disk Drive (HDD))
  • 4 iPhones
  • 1 SD card
  • 12 digital flash drives
  • 1 Macbook Air
  • 2 iPad Minis
  • 2 micro SD HC cards
  • 2 SD HC cards
  • 1 ultra-SD XC I card

My impression is that the government seized fewer devices from Michael Cohen and the same or more from Roger Stone, plus three from George Nader. But they are the only public searches of residences that would result in a big haul of devices, meaning about 300 would be from those three men (there are around 3 searches of residences the owners of which are not identified in the DC docket). Cooperating witnesses like Rick Gates and — before he reneged — Mike Flynn likely provided a number (Flynn described facilitating the production of electronic devices in his sentencing memo), though probably not that high of one, of devices. And many of Mueller’s 500 witnesses provided their phones “voluntarily,” or had some of their content subpoenaed. Mueller also obtained the transition cell phones and laptops for 13 transition officials, but the team appears to have obtained warrants before actually searching them, meaning they’re already accounted for in the DC docket.

Still, somehow that gets us from a universe of around 1,000 devices (counting 500 from Manafort, Cohen, Stone, Gates, and Flynn, plus 500 more from witnesses) to 2,300.

So there’s still a great number of media devices the source of which is not readily apparent.

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. 

Ann Donaldson’s Code Makes Richard Burr’s Tip-Off to the White House Far More Damning

The House Judiciary Committee released Ann Donaldson’s responses to their questions yesterday. In general, she was directed not to answer even more questions than Hope Hicks was. But her answers are interesting on several counts.

First, she offers a range of answers that sometimes confirm she was part of a discussion (and that it happened in Don McGahn’s office or via telephone), sometimes suggest she was part of such a conversation but often claims she does not have an independent memory of whether she was part of it, and sometimes make clear that she was not present. Generally, her answers suggest she learned of most of the events covered by the Mueller Report either by listening in on a phone call or by acting as a sounding board for Don McGahn. She states, “I was in meetings directly with President Trump fewer than ten times” (though she was clearly on McGahn’s side of phone calls more times than that).

But Donaldson’s answers are also interesting for the way in which she applies a series of pat answers to certain questions. Here’s the “code” she uses to answer the questions:

The White House has directed that I not provide any further answer to this question because of the constitutionally-based Executive Branch confidentiality interests that are implicated. These are obviously questions for which a truthful answer would be especially damning to the President.

I have no reason to question the accuracy of the Special Counsel’s Office’s description of my handwritten notes. Donaldson answers this way for many questions about her notes, effectively confirming that the Mueller Report’s citations of her notes are accurate.

Any characterization of my notes set forth in the Report is that of the Special Counsel’s Office and may be derived, in part, from sources other than my notes. One time, she adds this to a description of something in her notes, in response to this question:

Page 72 of the Report recount a meeting that occurred the morning of May 10, 2017 at the White House involving former acting FBI Director Andrew McCabe and the President in which the President said he “received ‘hundreds’ of messages from FBI employees indicating their support for terminating Comey” and “asked McCabe who he had voted for in the 2016 Presidential election.” Footnote 477 notes that the account of the meeting is consistent with your notes at Bates Number SC_AD_00347.

She also answers similarly — suggesting things attributed to her in the Mueller Report may involve her relaying something she learned or other Mueller sources — in response to several questions about her interviews with Mueller.

I affirm the accuracy of the voluntary statements I made when being interviewed by the Special Counsel’s Office. Eight times, she affirms the accuracy of something the report says she said. Those are:

  1. Footnote 279 on page 49 of the Mueller Report references an entry in your notes (SC_AD_00123) stating, “just in the middle of another Russia Fiasco.” The footnote cites back to a discussion on March 2, 2017 between the President and Mr. McGahn, during which “McGahn understood the President to be concerned that a recusal would make Sessions look guilty for omitting details in his confirmation hearing; leave the President unprotected from an investigation that could hobble the presidency and derail his policy objectives; and detract from favorable press coverage of a Presidential Address to Congress the President had delivered earlier in the week.” (15)
  2. Page 51-52 of the Report states that on March 5, 2017, President Trump “told advisors he wanted to call the Acting Attorney General [Dana Boente] to find out whether the White House or the President was being investigated.” The accompanying citation (footnote 306) cites to an entry in your notes, Bates Number SC_AD_000168, stating “POTUS wants to call Dana/Is investigation/No/We know something on Flynn/GSA got contacted by FBI/There’s something hot.” (28)
  3. Page 54 of the Report indicates that on March 21, 2017 “[t]he President called McGahn repeatedly that day to ask him to intervene with the Department of Justice, and, according to the notes, the President was ‘getting hotter and hotter, get rid?’” (40)
  4. Footnote 385 of Page 62 of the Report references an entry in your notes at SC_AD_00265 that states “P called Comey – Day we told him not to? ‘You are not under investigation’ NK/China/Sapping Credibility.” (46)
  5. Page 68 of the Report states, “Notes taken by Donaldson on May 9 reflected the view of the White House Counsel’s Office that the President’s original termination letter should ‘[n]ot [see the] light of day’ and that it would be better to offer “[n]o other rationales” for the firing than what was in Rosenstein’s and Sessions’ memoranda.” The accompanying citation (footnote 442) cites your notes, Bates Number SC_AD_00342. (51)
  6. The Report, on pages 81 and 82 citing to your notes at Bates Number SC_AD_00361, states (footnote 541) that Mr. McGahn “advised that the President could discuss the issue [of whether Mr. Mueller had conflicts of interest] with his personal attorney but it would “‘look like still trying to meddle in [the] investigation’ and ‘knocking out Mueller’ would be ‘[a]nother fact used to claim obst[ruction] of justice.’” (63)
  7. Page 82 of the Report states that Mr. McGahn also “told the President that his ‘biggest exposure’ was not his act of firing Comey but his ‘other contacts’ and ‘calls,’ and his ‘ask re: Flynn.’” The accompanying citation (footnote 542) refers to your notes, SC_AD_00361. (64)
  8. Page 113 of the Report states that on January 25, 2018, the New York Times reported that in June 2017, the President had ordered Mr. McGahn to have the Department of Justice fire the Special Counsel. Page 114 of the Report states that on January 26, 2018, the President’s personal counsel called Mr. McGahn’s personal attorney and said that the President wanted Mr. McGahn to put out a statement denying that he had been asked to fire the Special Counsel and that he had threatened to quit in protest. (77)

I have no reason to question the accuracy of the Special Counsel’s Office’s description of my voluntary statements to it, although I do not have access to its records of my statements. For a number of other questions, however, she answers (as she does for many questions about her notes) that she has no reason to question the accuracy of what the report writes. It’s unclear what the difference is (though the answers she affirms generally make McGahn look smart as compared to Trump.)

Given that code, I’m particularly interested in her responses to question 30, which is about Richard Burr informing the White House about the targets of the FBI investigation, because it suggests Trump may have learned of the list.

In response to the first question on it, Donaldson provides most of her regular coded answers. She can’t speak to the accuracy of Jim Comey’s briefing of the Gang of Eight, she doesn’t dispute Mueller’s characterization of her notes and comments, but some of what is included may be from other people.

Page 52 of the Report indicates that the week after Mr. Comey briefed congressional leaders “about the FBI’s investigation of Russian interference, including the identification of the principal U.S. subjects of the investigation” on March 9, 2017, one of the leaders briefed, Senate Select Committee on Intelligence Chairman Senator Richard Burr, was in contact with the White House Counsel’s office, which “appears to have received information about the status of the FBI investigation.” You are quoted in Footnote 309 as saying that Senator Burr identified “4-5 targets.”

a. Is this statement accurate?

RESPONSE: I was not present for Mr. Comey’s briefing to the Senate Select Committee on Intelligence, and therefore I cannot confirm whether the description of his briefing to congressional leaders is accurate.

I have no reason to question the accuracy of the Special Counsel’s Office’s quotation of “4-5 targets” from my notes.

I have no reason to question the accuracy of the Special Counsel’s Office’s description of the voluntary statements I made to it, although I do not have access to its records of my statements.

Any characterization of my voluntary statements set forth in the Report is that of the Special Counsel’s Office and may be derived, in part, from sources other than my statements.

But then, to that same question, she endorses the characterization relayed in the Mueller Report more strongly than she does elsewhere. She didn’t take this to be Burr tipping off the White House — though she specifies that that was her belief “at the time,” suggesting she now realizes that’s not true.

As stated by the Special Counsel’s Office in the Report, at the time, I “believed these were targets of [the Senate Select Committee on Intelligence].”

When asked who initiated this contact, she provides the answer the White House has instructed her to give regarding damaging information pertaining to the President.

Who initiated the contact between the White House Counsel’s office and Senator Burr?

RESPONSE: The White House has directed that I not respond to this question because of the constitutionally-based Executive Branch confidentiality interests that are implicated.

In the course of explaining that this Burr tipoff happened via phone, she pushes back on the characterization that this was a formal briefing, which is the one time she disputes a characterization made by Mueller.

Where did the March 16, 2017 briefing from Senator Burr take place?

RESPONSE: To the extent this question refers to contact between Senator Burr and the Office of the White House Counsel on or about March 16, 2017 (I would not characterize this contact as a formal “briefing”), that conversation took place by telephone.

When asked why Burr tipped off the White House, Donaldson blames the decision on Burr, suggesting that it was done on his initiative (even in spite of her earlier answer refusing to answer just that question).

Why did Senator Burr provide this briefing to the White House Counsel’s office about the investigation into Russian election interference?

RESPONSE: I do not know. I cannot speak to Senator Burr’s state of mind.

Then Donaldson reaffirms that the conversation happened via a call to McGahn, which she was present for (note, I’m not really sure by what she means when she says she was not a participant on calls, but I wonder both whether it was via speaker phone and whether the other party was told she was listening).

Were you present for Senator Burr’s March 16, 2017 briefing to the White House Counsel’s office?

RESPONSE: To the extent this question refers to a telephone call between Senator Burr and the Office of the White House Counsel on or about March 16, 2017, I was in Mr. McGahn’s office during, but not a participant on, the telephone call.

Here’s where it gets interesting. In a series of three more questions about the call — including whether the President learned about it — Donaldson provides the answer the White House made her give regarding things that were damning to the President.

Who else was present?

RESPONSE: The White House has directed that I not respond to this question because of the constitutionally-based Executive Branch confidentiality interests that are implicated.

Describe the substance of Senator Burr’s March 16, 2017 briefing to the White House Counsel’s office.

RESPONSE: The White House has directed that I not respond to this question because of the constitutionally-based Executive Branch confidentiality interests that are implicated.

Were the contents of Senator Burr’s briefing shared with the President? If so, describe who shared the contents of the meeting and if you were present for those discussions.

RESPONSE: The White House has directed that I not respond to this question because of the constitutionally-based Executive Branch confidentiality interests that are implicated.

If no one else was present, she could have just answered that. And unless someone else was present, she should be able to answer about the substance of the question. Ditto the question about passing this information on to Trump: if there were a non-damning answer, given her other practice, she could answer it.

If McGahn passed on the list of people being investigated to Trump, it would make the conversation between Comey and Trump that took place on March 30, two weeks later, more significant. Trump starts by raising Comey’s public testimony on March 20, where he confirmed the investigation. But then Comey raises the Gang of Eight briefing.

After Comey raises the Gang of Eight briefing, Trump requests that Comey clear him publicly. But then Trump makes the comment about wanting to know if “some satellite” to his campaign did something, he would want that to be public. Remember, here’s what Burr told McGahn, with Donaldson present:

Donaldson 11/6/17 302, at 14-15. On March 16, 2017, the White House Counsel’s Office was briefed by Senator Burr on the existence of “4-5 targets.” Donaldson 11 /6/17 302, at 15. The “targets” were identified in notes taken by Donaldson as “Flynn (FBI was ~ooking for phone records”; “Comey~Manafort (Ukr + Russia, not campaign)”; [redacted reference to Roger Stone] “Carter Page ($ game)”; and “Greek Guy” (potentially referring to George Papadopoulos, later charged with violating 18 U.S.C. § 1001 for lying to the FBI). SC_AD_00198 (Donaldson 3/16/17 Notes). Donaldson and McGahn both said they believed these were targets ofSSCI. Donaldson 11/6/17 302, at 15; McGahn 12/ 12/17 302, at 4. But SSCI does not formally investigate individuals as “targets”; the notes on their face reference the FBI, the Department of Justice, and Corney; and the notes track the background materials prepared by the FBI for Corney’s briefing to the Gang of8 on March 9. See SNS-Classified-0000140-44 (3/8/17 Email, Gauhar to Page et al.); see also Donaldson 11 /6/17 302, at 15 (Donaldson could not rule out that Burr had told McGahn those individuals were the FBI’s targets).

If McGahn passed on this information, Trump would have believed that the Mike Flynn investigation would soon be over, and that Paul Manafort was not being investigated for behavior related to his campaign. Trump never gave a shit about George Papadopoulos and Carter Page.

But Roger Stone was his life-long rat-fucker. And during the campaign, Stone spoke repeatedly with Trump to inform him about what he had learned of WikiLeaks’ plans.

It’s one thing if this was a comment about Sergei Millian, as Comey thought it was. But if Trump knew at this point that Roger Stone was under investigation, that would be a very different thing.

Especially because March 2017 is when Stone ratcheted up his efforts to cover up his discussions with WikiLeaks.

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. 

Jim Jordan’s Bubble Has Allowed Him to Remain Painfully Stupid about the Mueller Investigation

Politico has a piece on Republican plans to blow up Robert Mueller’s testimony later this month with stupid questions. It’s a fair piece; it even quotes Louie Gohmert calling Mueller an asshole, in as many words.

The Texas congressman added that his reading of the special counsel’s report did little to temper his long history of animosity for the former FBI director: “It reinforced the anal opening that I believe Mueller to be.”

But it misses an opportunity when it presents what Jim Jordan imagines will be a doozy of a question with only a minimal fact check.

But Republicans preparing over the next two-plus weeks to questionMueller say they have their own points they hope to drive home to Americans as well. Several indicated they intend to press Mueller on when he first determined he lacked evidence to charge Americans with conspiring with Russia — insinuating, without evidence, that he allowed suspicions to linger long after he had shifted his focus to the obstruction of justice investigation.

“The obvious question is the one that everyone in the country wants to know: when did you first know there was no conspiracy, coordination or collusion?” said Jordan, one of the Republicans’ fiercest investigators. “How much longer did it take Bob Mueller to figure that out? Did he intentionally wait until after 2018 midterms, or what?”

Mueller emphasized in his report that he did not make a finding on “collusion,” since it’s not a legal term, and that his decision not to bring charges didn’t mean he found no evidence of them.

If Jim Jordan, who has been spending most of his time as a legislator in the last year investigating this investigation, were not so painfully stupid, he would know not only that not “everyone in the country” feels the need to know when Mueller finalized a decision about conspiracy, but that attentive people already do know that Bob Mueller wasn’t the one who decided to wait out the mid-terms.

The Mueller team told Amy Berman Jackson that Paul Manafort had breached his plea agreement on November 26, 2018. His last grand jury appearance — on November 2 — did not show up in his breach discussion (meaning he may have told the truth, including about Trump’s personal involvement in optimizing the WikiLeaks releases). But in his October 26 grand jury appearance, he tried to hide the fact that he continued to pursue a plan to carve up Ukraine well into 2018, and continued to generally lie about what that plan to carve up Ukraine had to do with winning Michigan and Wisconsin, such that Manafort took time away from running Trump’s campaign on August 2, 2016 to discuss both of them with his co-conspirator Konstantin Kilimnik. Mueller never did determine what that August 2 meeting was about or what Kilimnik and Viktor Boyarkin did with the Trump polling data Manafort was sharing with them. But the delay in determining that Manafort’s obstruction had succeeded was set by Manafort, not Mueller.

And until November 26, prosecutors still hoped to get Jerome Corsi to stop lying to them about how he and Roger Stone got advanced notice of John Podesta’s stolen emails — to say nothing about why Stone was talking to someone “about phishing with John Podesta.” Indeed, the government obtained a search warrant against Stone in February 2019 — possibly the one on February 13 to search multiple devices  — to investigate hacking allegations. If that warrant is the February 2019 one targeting Stone, the devices likely came in the search of his homes on January 25 of this year.

Meanwhile, Donald Trump refused to answer questions — all the questions he answered were about conspiracy, and most of his answers were non-responsive — until November 20, 2018. His answers about the Trump Tower Moscow deal were worse than non-responsive: they replicated the lies for which Michael Cohen is currently sitting in prison. Then, in December and January, Trump and Rudy Giuliani made comments that made it clear Trump’s answers were willful lies. Mueller offered Trump the opportunity to clarify his testimony, but he declined.

In light of the President’s public statements following Cohen’s guilty plea that he “decided not to do the project,” this Office again sought information from the President about whether he participated in any discussions about the project being abandoned or no longer pursued, including when he “decided not to do the project,” who he spoke to about that decision, and what motivated the decision. 1057 The Office also again asked for the timing of the President’s discussions with Cohen about Trump Tower Moscow and asked him to specify “what period of the campaign” he was involved in discussions concerning the project. 1058 In response, the President’s personal counsel declined to provide additional information from the President and stated that “the President has fully answered the questions at issue.” 1059

1057 1/23/19 Letter, Special Counsel’s Office to President’s Personal Counsel.

1058 1/23/ 19 Letter, Special Counsel’s Office to President’s Personal Counsel.

1059 2/6/ l 9 Letter, President’s Personal Counsel to Special Counsel’s Office.

In short, the public record makes it clear that the answer to Jordan’s question — when Mueller made a determination about any conspiracy charges — could not have happened until after the election. But the person who dictated that timing, more than anyone else, was Trump himself, who was refusing to tell the truth to Mueller as recently as February 6.

This is all in the public record (indeed, Trump’s role in the delay is described in the Mueller Report, which Jordan might have known had he read it). The fact that Jordan doesn’t know the answer — much less believes that his already-answered question is a zinger — is a testament to what a locked bubble he exists in, where even the most basic details about the investigation itself, rather than the fevered dreams Jordan has about it, don’t seep in.

Jordan should branch out beyond the spoon-fed journalists from whom he got this question, because even in its original incarnation, the question was utterly inconsistent with the public record.

When did you determine that there was no conspiracy between the Trump campaign and Russia?

Some congressional Republicans have asserted that Mueller figured out early on in his investigation — which started on May 17, 2017 — that there was no conspiracy or collusion between the Trump campaign and Russian government.

Mueller’s report said that prosecutors were unable to establish that the campaign conspired with Russia, but the report did not go into detail about when that conclusion was reached.

Don’t get me wrong: I’m sure Jordan is going to pose unanswerable questions that will feed conspiracists (which is one of the reasons I was somewhat sympathetic for Mueller’s preference for a closed hearing). But it’s only within the closed bubble that can’t be pierced by obvious facts that such questions are legitimate questions.

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. 

Roger Stone’s Latest: When Legal Categories of Innocent or Guilty become Disinformation and Pardon [Updated]

Update, June 27: This post describes why Stone’s defense strategy — not to mount a legal defense, but to engage in disinformation — may pose a problem for Amy Berman Jackson’s enforcement  of her gag against Roger Stone. That’s because his magnification of other outlets’ coverage of his lawyers’ own bullshit filings questioning whether Russia hacked the DNC do amount to a magnification of his own defense strategy. ABJ ordered Stone to explain why his release conditions shouldn’t be changed. Stone’s response is here. As expected, his response largely claims he was within the terms of her order when commenting on his lawyers’ own filings.

The government’s disproportionate reaction is an effort to deprive Stone of the narrow latitude the Court left him; a latitude that was not violated by the posts, and a latitude which, if curtailed, based on the posts, would violate Stone’s First Amendment rights. The notion that “an appeal to major media outlets to publish information that is not relevant to, but may prejudice, this case” (Dkt. 136, p. 4, n.1), is oxymoronic, outré, and out of First Amendment bounds

Stone’s response is weakest in the explanation for calling for John Brennan to be hanged.

June 2, 2019 (Gov’t Ex. 8): “This psycho must be charged, tried, convicted . . . . [John Brennan] and hung for treason.” Dkt. 136-9. Stone: No comment was made by Stone about the “case” or about the “investigation.” Analysis: As background, Mr. Brennan, in a July 16, 2018 Tweet (about which 133,000 people were “talking”) wrote: “Donald Trump’s press conference performance in Helsinki rises to and exceeds the threshold of ‘high crimes and misdemeanors. It was nothing short of treasonous’.” The First Amendment protected Brennan’s remarks. Likewise, Stone’s remarks are also protected. This posting has nothing whatsoever to do with Stone’s case and therefore posed no fair trial threat, nor did it violate the Order.

This is clearly an attempt to explain away what Stone’s deletion of the post seems to recognize did violate the gag.

Anyway, I may be alone in thinking this, but I suspect ABJ won’t do anything more than restrict Stone’s use of the Internet, if even she does that.

I will add, however, that the government would do well to formally notice what I pointed out here: that in the DNC lawsuit, his attorneys are arguing the opposite of what they’re arguing here, that Russia definitely did the DNC hack.


Yesterday, the government asked Judge Amy Berman Jackson to hold a hearing to determine whether Roger Stone didn’t violate his gag order earlier this week by trying to get mainstream press outlets to pick up marginal outlets’ reports of his attorneys’ effort to undermine the attribution of the DNC hack to Russia. They point to several Instagram posts Stone made that referred to conspiratorial interpretations of his lawyers’ own frivolous arguments and ask why other outlets aren’t picking up the story. [I’ve added links to the posts.]

On June 18, 2019, Stone posted a screenshot of an article about one of his recent filings in this case. The screenshot read: “US Govt’s Entire Russia-DNC Hacking Narrative Based on Redacted Draft of CrowdStrike Report.” Ex. 1. He tagged the post, “But where is the @NYTimes? @washingtonpost? @WSJ? @CNN?” Id. Later that day, Stone posted a screenshot of another piece about his filing with the title, “FBI Never Saw CrowdStrike Unredacted Final Report on Alleged Russian Hacking Because None was Produced.” Ex. 2. Next, Stone posted an article titled, “Stone defense team exposes the ‘intelligence community’s’ [sic] betrayal of their responsibilities.” Ex. 3. The text further stated, “As the Russia Hoax is being unwound, we are learning some deeply disturbing lessons about the level of corruption at the top levels of the agencies charged with protecting us from external threats. One Jaw-dropping example has just been exposed by the legal team defending Roger Stone.” Id. Stone tagged the article, “Funny , No @nytimes or @washingtonpost coverage of this development.”

On June 19, 2019, Stone posted a screenshot of an article with the title, “FBI Never Saw CrowdStrike Unredacted or Final Report on Alleged Russian Hacking Because None Was Produced.” Ex. 4. He tagged the post, “The truth is slowly emerging. #NoCollusion.” Id.2

They argue this violates ABJ’s ban on,

making statements to the media or in public settings about the Special Counsel’s investigation or this case or any of the participants in the investigation or the case. The prohibition includes, but is not limited to, statements made about the case through the following means: radio broadcasts; interviews on television, on the radio, with print reporters, or on internet based media; press releases or press conferences; blogs or letters to the editor; and posts on Facebook, Twitter, Instagram, or any other form of social media.

Thus far, ABJ has not responded to this request, though in that same time she assented to another of the government’s requests, to submit a sur-reply to Stone’s claim that the FBI never had any direct evidence Russia hacked the DNC.

I want Roger Stone to go to jail as much as the next opponent of rat-fucking. But I think the government’s claim, on this point, is problematic. Back when ABJ set Stone’s gag, she said,

You may send out as many emails, Tweets, posts as you choose that say, Please donate to the Roger Stone defense fund to help me defend myself against these charges. And you may add that you deny or are innocent of the charges, but that’s the extent of it. You apparently need clear boundaries, so there they are.

But in the same hearing, prosecutor Jonathan Kravis — the guy who signed yesterday’s filing — laid out that defensible public statements would include articulating a defense.

And because the conduct we’re talking about now, because the message we’re talking about now are not just messages about proclaiming innocence or articulating a defense, but are messages that could be construed as threatening, the government believes that the restriction on extrajudicial statements would be appropriate under the Bail Reform Act.

And the posts from this week that prosecutors lay out do nothing more than point to poor analysis of Stone’s own lawyers’ filings, and as such probably count as an effort to articulate a defense.

The problem is precisely what prosecutors explicitly explain is their real concern, that these posts are designed to generate more attention for conspiracy theories that totally undermine the public record of the Mueller investigation.

Stone’s posts appear calculated to generate media coverage of information that is not relevant to this case but that could prejudice potential jurors. They relate to Stone’s claims—made in both filings before the Court and in public settings—that Russia did not hack the DNC servers, that the FBI and intelligence community were negligent in investigating Russian interference in the 2016 presidential election, that the government improperly “targeted” Stone and others, and that the entire investigation was somehow invalid and any crimes flowing from it (including Stone’s witness tampering and lies to Congress) were justified.3 If those theories were relevant to this case (which they are not), public statements aimed at the media and meant to bolster the claims would risk prejudicing the jury pool. But these posts are arguably even worse, because they risk tainting the jury pool with information that is not relevant but that may appear, to some, to be relevant. At best, Stone’s efforts could create the misimpression that this case is about issues that are not charged in the Indictment, and risk the trial “devolv[ing] into a circus” (Tr. 49:19-20). But worse, it could confuse prospective jurors or color how they later view the actually-relevant evidence and understand the Court’s instructions about that evidence.

Prosecutors are absolutely right: the reporting on Stone’s lawyers filings misrepresent what his case is about. But that’s because Stone’s own lawyers are engaging in a legal strategy of disinformation, not legal defense.

I’ve repeatedly said that I think Stone will be pardoned before his November trial. Currently, there are no charges against him which could be refiled in NY or FL (the latter of which wouldn’t do it anyway). DOJ has already ruled that Stone’s known underlying activity — optimizing the release of documents stolen by Russians — does not reach the level of illegal conspiracy. So if Trump pardoned Stone before November, the fact that Stone would lose his Fifth Amendment rights over his charges would pose no legal risk to Trump (unlike, say, Manafort). Yet November’s trial, if it goes forward, will be unbelievably damning for the President.

And that means that Stone’s lawyers have an even bigger incentive than Manafort’s lawyers did to mount a defense that undermines the credibility of the Russian investigation, even if it does nothing to increase Stone’s chances for acquittal (which, if this goes to trial, are slim).

Which leaves ABJ and the prosecutors attempting to litigate a trial that will find innocence or guilt, while Stone’s lawyers are litigating to push disinformation in support of a pardon.

All that said, Stone may still be in trouble. Prosecutors note that this is not the first time Stone has violated the letter (if not spirit) of ABJ’s gag. They include several more examples.

1 These posts are not the first statements that appear to have run afoul of the Court’s order. See, e.g., Ex. 5 (Instagram Posting of April 4, 2019, stating “FBI Refuses Records Request for Emails to CNN on Day of Roger Stone Raid,” with the tag, “How curious? What could they possibly be hiding?”); Ex. 6 (Instagram Posting of May 8, 2019, with the headline “Judge demands unredacted Mueller report in Roger Stone case,” with the comment, “The Judge has ruled but @Politico gets most of the story wrong because they are biased elitist snot-nosed fake news [expletive] who’s [sic] specialty is distortion by omitting key facts to create a false narrative.”); Ex. 7 (Instagram Posting of May 16, 2019, with headline, “Roger Stone Swings For the Fences; Court Filing Challenges Russiagate’s Original Premise,” with the comment, “My attorneys challenged the entire “Russia hacked the DNC/CrowdStrike” claim by the Special Counsel in public court filings[.]”); Ex. 8 (Instagram Posting of June 2, 2019, picturing a former CIA Director and writing, “This psycho must be charged, tried, convicted . . . . and hung for treason.”) (ellipses in original) (subsequently deleted). The government is bringing this matter to the Court’s attention now because Stone’s most recent posts represent a direct attempt to appeal to major media outlets to publish information that is not relevant to, but may prejudice, this case.

Three of these, like the other four, might be viewed as articulating a defense, with the defense being, engaging in disinformation.

The fourth, however, solidly violates the spirit and letter of ABJ’s gag, because it would be likely to incite violence directed at John Brennan, because it calls for his hanging (Click through to see the post; I don’t want to magnify Stone’s violent language).

I’m not sure what the remedy is for lawyers whose defense strategy is to sow disinformation inside and outside the court room (in both filings this week, the government has said they’re going to move to prevent any such discussion from the trial). But I think these Instagram posts were probably designed, with advice of counsel, to be defensible as part of a defense strategy.

It’s Stone’s defense strategy that’s the problem.

Update: ABJ has given Stone until Thursday to convince her he didn’t violate her gag.

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. 

Questions for Robert Mueller (and His Prosecutors) that Go Beyond the Show

I generally loathe the questions that people are drafting for Robert Mueller’s July 17 testimony before the House Judiciary and Intelligence Committees, largely because those questions are designed for a circus and not to learn information that’s useful for understanding the Mueller investigation. Here are the questions I’d ask instead (I’ll update these before Mueller testifies).

  1. Can you describe how you chose which “links between the Russian government and individuals associated with the campaign of President Donald Trump” to focus your investigation on?
  2. The warrants released in Michael Cohen’s case and other public materials show that your grand jury conducted investigations of people before Rod Rosenstein formally expanded the scope to include them in October 2017. Can you explain the relationship between investigative steps and the Rosenstein scope memos?
  3. Lisa Page has explained that in its initial phase, the investigation into Trump’s aides was separate from the larger investigation(s) into Russian interference. But ultimately, your office indicted Russians in both the trolling and the hack-and-leak conspiracies. How and when did those parts of DOJ’s investigation get integrated under SCO?
  4. An FD-302 memorializing a July 19, 2017 interview with Peter Strzok was released as part of Mike Flynn’s sentencing. Can you describe what the purpose of this interview was? How did the disclosure of Strzok’s texts with Lisa Page affect the recording (or perceived credibility) of this interview? Strzok was interviewed before that disclosure, but the 302 was not finalized until he had been removed from your team. Did his removal cause any delay in finalizing this 302?
  5. At the beginning of the investigation, your team investigated the criminal conduct of subjects unrelated to ties with Russia (for example, Paul Manafort’s ties with Ukraine, Mike Flynn’s ties to Turkey). Did the approach of the investigation change later in the process to immediately refer such issues to other offices (for example, Michael Cohen’s hush payments and graft)? If the approach changed, did your team or Rod Rosenstein drive this change? Is the Mystery Appellant related to a country other than Russia?
  6. Did your integration of other prosecutors (generally from DC USAO) into your prosecution teams stem from a resourcing issue or a desire to ensure continuity? What was the role of the three prosecutors who were just detailees to your team?
  7. Your report describes how FBI personnel shared foreign intelligence and counterintelligence information with the rest of FBI. For more than a year, FBI agents were embedded with your team for this purpose. Were these agents focused just on Russian activities, or did their focus include the actions of other countries and Americans? If their focus included Americans, did it include Trump associates? Did it include Trump himself?
  8. Can you describe the relationship between your GRU indictment and the WDPA one focused on the WADA hacks, and the relationship between your IRA indictment and the complaint against a Yevgeniy Prigozhin employee in EDVA? Can you describe the relationship between the Maria Butina prosecution and your investigation?
  9. Do you regret charging Concord Management in the IRA indictment? Do you have any insight on how indictments against Russian and other state targets should best be used?
  10. In discussions of Paul Manafort’s plea deal that took place as part of his breach hearing, Andrew Weissmann revealed that prosecutors didn’t vet his testimony as they would other cooperators. What led to this lack of vetting? Did the timing of the election and the potential impact Manafort’s DC trial might have play into the decision?
  11. What communication did you receive from whom in response to the BuzzFeed story on Trump’s role in Michael Cohen’s false testimony? How big an impact did that communication have on the decision to issue a correction?
  12. Did Matt Whitaker prevent you from describing Donald Trump specifically in Roger Stone’s indictment? Did you receive any feedback — from Whitaker or anyone else — for including a description of Trump in the Michael Cohen plea?
  13. Did Whitaker, Bill Barr, or Rosenstein weigh in on whether Trump should or could be subpoenaed? If so what did they say? Did any of the three impose time constraints that would have prevented you from subpoenaing the President?
  14. Multiple public reports describe Trump allies (possibly including Mike Flynn or his son) expressing certainty that Barr would shut down your investigation once he was confirmed. Did this happen? Can you describe what happened at the March 5, 2019 meeting where Barr was first briefed? Was that meeting really the first time you informed Rosenstein you would not make a determination on obstruction?
  15. You “ended” your investigation on March 22, at a time when at least two subpoena fights (Andrew Miller and Mystery Appellant) were ongoing. You finally resigned just minutes before Andrew Miller agreed to cooperate on May 29. Were these subpoenas for information critical to your investigation?
  16. If Don Jr told you he would invoke the Fifth if subpoenaed by the grand jury, would that fact be protected by grand jury secrecy? Are you aware of evidence you received involving the President’s son that would lead him to be less willing to testify to your prosecutors than to congressional committees? Can congressional committees obtain that information?
  17. Emin Agalarov canceled a concert tour to avoid subpoena in your investigation. Can you explain efforts to obtain testimony from this key player in the June 9 meeting? What other people did you try to obtain testimony from regarding the June 9 meeting?
  18. Did your investigation consider policy actions taken while Trump was President, such as Trump’s efforts to overturn Russian sanctions or his half-hearted efforts to comply with Congressional mandates to impose new ones?
  19. Can you describe how you treated actions authorized by Article II authority — such as the conduct of foreign policy, including sanctions, and the awarding of pardons — in your considerations of any criminal actions by the President?
  20. The President did not answer any questions about sanctions, even the one regarding discussions during the period of the election. Do you have unanswered questions about the role of sanctions relief and the Russian interference effort?
  21. Your report doesn’t include several of the most alarming interactions between Trump and Russia. It mentions how he told Sergey Lavrov and Sergey Kislyak he had fired Comey because of the Russian investigation, but did not mention that he shared classified Israeli intelligence at the meeting. Your report doesn’t mention the conversations Trump had with Vladimir Putin at the G-20 in Hamburg, including one pertaining to “adoptions,” while he was working on the June 9 meeting. The report doesn’t mention the Helsinki meeting. Did your investigation consider these interactions with Russia? If not, are you aware of another part of the government that did scrutinize these events?
  22. Why did you include Trump’s efforts to mislead the public about the June 9 meeting when it didn’t fit your team’s own terms for obstructive acts?
  23. You generally do not name the Trump lawyers who had discussions, including about pardons, with subjects of the investigation. How many different lawyers are described in your report to have had such discussions?
  24. You asked — but the President provided only a partial answer — whether he had considered issuing a pardon for Julian Assange prior to the inauguration. Did you investigate the public efforts — including by Roger Stone — to pardon Assange during Trump’s Administration?
  25. The cooperation addendum in Mike Flynn’s case reveals that he participated in discussions about reaching out to WikiLeaks in the wake of the October 7 Podesta releases. But that does not appear in the unredacted parts of your report. Is the entire scope of the campaign’s interactions with WikiLeaks covered in the Roger Stone indictment?
  26. Hope Hicks has claimed to be unaware of a strategy to coordinate the WikiLeaks releases, yet even the unredacted parts of the report make it clear there was a concerted effort to optimize the releases. Is this a difference in vocabulary? Does it reflect unreliability on the part of Hicks’ testimony? Or did discussions of WikiLeaks remain partially segregated from the communications staff of the campaign?
  27. How many witnesses confirmed knowing of conversations between Roger Stone and Donald Trump about WikiLeaks’ upcoming releases?
  28. The President’s answers regarding the Trump Tower Moscow match the false story for which Michael Cohen pled guilty, meaning the President, in his sworn answers, provided responses you have determined was a false story. After Cohen pled guilty, the President and his lawyer made public claims that are wholly inconsistent with his sworn written answer to you. You offered him an opportunity to clean up his sworn answer, but he did not. Do you consider the President’s current answer on this topic to be a lie?
  29. Did Trump Organization provide all the emails pertaining to the Trump Tower Moscow deal before you subpoenaed the organization in early 2018? Did they provide those emails in response to that subpoena?
  30. In his answers to your questions, President Trump claimed that you received “an email from a Sergei Prikhodko, who identified himself as Deputy Prime Minister of the Russian Federation … inviting me to participate in the St. Petersburg International Economic Forum.” But the footnotes to your discussion of that exchange describe no email. Did your team receive any email? Does the public record — showing that Trump never signed the declination letter to that investigation — show that Trump did not decline that invitation?

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.