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The Access Hollywood Search Doesn’t Mean Trump Coordinated with Assange

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As I noted, yesterday several outlets reported that among the things included in the FBI warrant for Michael Cohen’s premises was communications between Trump, Cohen, and others (whom I suspect to include Steve Bannon and Marc Kasowitz) “regarding the infamous ‘Access Hollywood'” video.

FBI agents who raided the home, office and hotel of Donald Trump’s personal lawyer sought communications that Trump had with attorney Michael Cohen and others regarding the infamous “Access Hollywood” tape that captured Trump making lewd remarks about women a month before the election, according to sources familiar with the matter.

[snip]

The search warrant also sought communications between then-candidate Trump and his associates regarding efforts to prevent disclosure of the tape, according to one of the sources. In addition, investigators wanted records and communications concerning other potential negative information about the candidate that the campaign would have wanted to contain ahead of the election. The source said the warrant was not specific about what this additional information would be.

From that, people on both the right and the left have assumed, without presenting hard evidence, that this means there must be a tie to Russia. Most often, people assume this must mean Trump somehow managed the events of October 7, when the Intelligence Committee report blaming Russia for the DNC hack, the Access Hollywood video, and the first Podesta emails all came out in quick succession.

That’s certainly possible, but thus far there’s no reason to believe that’s the case.

Mueller and Rosenstein referred this

That’s true, first of all, because after consulting with Rod Rosenstein, Robert Mueller referred this to the Southern District of New York for execution and prosecution, rather than dealing with it himself. He did that surely knowing what a sieve for leaks SDNY is, and therefore knowing that doing so would undercut his remarkably silent teamwork thus far.

In spite of a lot of reporting on this raid this week, we don’t yet have a clear understanding of why the two chose to refer it (or, tangentially, why interim SDNY US Attorney Geoffrey Berman recused himself from this matter).

There are two options. The first is that Rosenstein believed hush payments and taxi medallion money laundering sufficiently attenuated to the Russian investigation that it should properly be referred. In which case, the fact that it was referred is itself reason to believe that Mueller — even while he had abundant evidence supporting the search warrant — has no reason to believe those releases were orchestrated with Wikileaks, and therefore have no direct interest to his investigation (though they may cough up one to three witnesses who will be more willing to cooperate when faced with their own fraud indictments). In which case, the Access Hollywood video would be just another example, like the Stormy Daniels and the Karen McDougal payoffs, of Trump’s efforts to bury embarrassing news, using whatever means necessary.

The other option is that Mueller does have evidence that Trump in some way managed the October 7 events, which would be one of the most inflammatory pieces of evidence we would have heard of so far, but that there was some other reason to refer the matter.

Michael Cohen wasn’t serving as an attorney for much of the reported documents

The really good reason to refer the warrant would be so that SDNY would serve as a natural clean team, sorting through seized items for privileged communications, only to hand them back to Mueller’s team in DC once they’ve sorted through them. It’s an idea Preet Bharara and Matt Miller, among others, have floated.

Before we conclude that SDNY is only serving as a clean team for Mueller’s team here, consider that coverage has vastly overstated the degree to which the items being searched will fall under attorney-client privilege.

The search also sought information on Cohen’s taxi medallions, a business in which he has had really corrupt partners, some Russian, with their own legal problems, and one that has reportedly left Cohen with some debt problems that make his purported personal payment to Stormy Daniels all the more sketchy.

In addition, as soon as Trump claimed to know nothing of the hush payment to Daniels last Friday, the government could credibly claim that either Cohen was not representing Trump when paying off Daniels, or involved in fraud.

The NYT has reported that the raid also sought all communications between Cohen and National Enquirer’s top brass, communications that would in no way be privileged.

Even the reported communications about the Access Hollywood video may not be privileged. If they involved four people, then the only way they’d be covered by privilege is if they counted as campaign emails and Marc Kasowitz, not Cohen, was the attorney providing privileged advice in question. In that case, Cohen would have been playing the press contact role he often did during the campaign.

Still, just because Cohen was not playing the role of an attorney during most of the activities the FBI is interested in doesn’t mean the FBI won’t be really careful to make sure they don’t violate privilege, and I’m sure they’ll still use a taint team.

Mueller has already dealt with (at least) two sensitive attorney-client relationships in his investigation

Even on top of the eight members of the White House Counsel’s office who have spoken with the Special Counsel, Mueller’s team has dealt with (at least) two other sensitive attorney-client relationships.

The first was Melissa Laurenza, a lawyer for Paul Manafort whom he had write false declarations for FARA registry. Judge Amy Berman Jackson permitted Mueller’s team to ask her seven of eight proposed question after proving Manafort had used her services to engage in fraud.

More recently, we’ve gotten hints — but only hints — of what must be extensive cooperation from Skadden Arps and its partner Greg Craig, describing how Manafort and Gates laundered money to pay the firm loads of money to write a report they hoped would exonerate Ukraine’s persecution of Yulia Tymoshenko. While the cooperation of Skadden itself was probably effusive in its voluntary nature (the firm seems determined to avoid the taint that Tony Podesta’s firm has acquired in this process), Mueller did subpoena Alex Van der Zwaan and it’s unclear what methods the FBI used to obtain some of the materials he tried to hide from prosecutors.

Neither of those exchanges involves a search warrant. But they do show that Mueller is willing to take on the tricky issue of attorney testimony first-hand. Using SDNY as a clean team still may be the easiest option in the Cohen case, but Mueller clearly isn’t shying away from managing all such issues in-house in other cases.

The other possible explanations for the Access Hollywood search and the October 7 timing

Which brings us finally to the other possibilities behind the Access Hollywood search.

It’s certainly possible that the coincidental release of all these things was coordination, entirely orchestrated by the Trump campaign. But there are a number of reasons — on top of the fact that Mueller isn’t keeping this search far tighter under his own control — I think that’s not the most likely explanation.

Consider this story, arguing that the real story of Access Hollywood isn’t that it leaked on October 7 — the piece notes that David Farenthold had only received it that day — but that it didn’t leak earlier in the process, when it might have led Trump to lose the primary.

t is just impossible to believe that the tape not coming out at the start of Trump’s campaign, when logic dictates that it would have blown Trump instantly out of the water (before he was in a position where Republicans had no choice other than to keep backing him against the evil Hillary Clinton), was anything but a highly unethical political decision by someone at NBC. The fact that no one has ever even gotten an answer from NBC about how this could have happened is equally unfathomable and yet, given the news media’s overall incompetence, kind of expected.

[snip]

It has always struck me as EXTREMELY odd that it was the Washington Post, not NBC, who first released the tape on Friday Oct. 7, 2016, barely beating NBC which, it should be noted, was clearly ready to go with it immediately after the Post did. I presumed that perhaps NBC wanted this to be the case because it might take some of the focus off why they had not released it during the primaries (and thus chose not to prematurely kill off the media’s Golden Goose which was Trump’s ratings-friendly campaign).

However, there is another aspect of the Post being the outlet which got the big scoop that has always struck me as potentially very significant. The Post’s reporter, David Fahrenthold, has said that he was only made aware of the tape, via an unnamed source, THAT day — which is a clear indication that whomever was trying to get the Post to release it had decided to do so in tremendous haste. After all, if the source had planned it sooner they would have made contact with Fahrenthold well before then because he might have been out of pocket that day.

[snip]

For instance, what if it was actually someone from the TRUMP team who leaked the tape. At first glance, this seems ludicrous because no one thought that Trump would be anything but greatly harmed by the tape (though he clearly was not). But what if someone in Trump World got wind that the tape was about to be released and decided that stepping all over the Russia news (which would normally have dominated the narrative for the remainder of the campaign) would at least create the least bad outcome for them?

I don’t agree that the release was released when it was to distract from the Russia announcement that day. As I’ve long noted, in reality, the Access Hollywood distracted from the Podesta emails, effectively burying the most damning release in the bunch, the excerpts of Hillary’s speeches that even Democrats had been demanding she release since the primary. And while the Trump team might claim they didn’t control the release of the Podesta emails directly — and Roger Stone’s predictions that Wikileaks would release Clinton Foundation rather than Podesta emails were dead wrong — the Trump team at least knew something was coming (indeed, Wikileaks had made that clear themselves). So there’s little reason they would stomp on what they had long welcomed with the Access Hollywood tape. As this post alludes, I also think the Trump team and Russians or Wikileaks may have been squabbling over whether Wikileaks would release possibly faked Clinton Foundation emails that week, only to scramble when Wikileaks refused to release whatever the Peter Smith effort had gotten dealt to them.

Like the Mediate piece, I’m interested in the way that Steve Bannon had Clinton accusers all lined up to go that weekend (indeed, I noted how quickly Stone moved to that after having raised expectations for a Clinton Foundation release). But I also think there are some reasons to believe that attack was in the works for other reasons (though I agree it might reflect advance knowledge that the video might come out, or even that Stormy Daniels might come forward).  Finally, I don’t think the release came from Trump because of all the reports of Republicans trying to convince Trump to step down (though it’s possible the GOP dropped the video in one last bid to get him to do so).

One alternative narrative, then, is that the real story about the Access Hollywood suppression goes back months or years earlier, as one of the things Trump managed to suppress throughout the campaign, but something happened internally to breach that agreement. And, separately, that either Assange by himself, with Russian help, or with Trump assistance, timed the Podesta emails to come out as the Russian attribution was coming out. That is, it could be that the real story remains that whoever orchestrated the Wikileaks release did so in an attempt to bury the Russian attribution, but that the coincidental release of the Access Hollywood video in turn buried the Podesta emails.

Finally, it’s possible that Democrats got ahold of the Access Hollywood video and they released it to (successfully) drown out the Podesta emails, which they (and the intelligence community) also would have known were coming, but by doing so, they also drowned out the all-important Russian attribution in the process.

The point is, we don’t know. And nothing we know thus far about the process leading to this warrant or about the suppression and release of either the video or the women’s stories suggest it all took place that week of October. Trump’s usual m.o. is about suppression, not timing.

That said, I’m curious if this raid will reveal details about one other item Trump probably tried to suppress: the nude Melania photos that NYPost released on July 31, 2016, just as campaign season got going in earnest.

What Did Wikileaks Do with the DCCC Emails It Monopolized?

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Yesterday Buzzfeed did a story that adds important details to this report from the New Yorker last year.

In mid-August, Guccifer 2.0 expressed interest in offering a trove of Democratic e-mails to Emma Best, a journalist and a specialist in archival research, who is known for acquiring and publishing millions of declassified government documents. Assange, I was told, urged Best to decline, intimating that he was in contact with the persona’s handlers, and that the material would have greater impact if he released it first.

First, Buzzfeed describes the emails clearly as the DCCC documents (though elsewhere this article remains unreliable on some facts about what documents were what).

As Best describes, she had reached out to Guccifer 2.0 when he had asked for assistance from journalists, and ultimately then reached out to Wikileaks.

Best told BuzzFeed News she first reached out to Guccifer 2.0 in August 2016 after it posted on its WordPress account a call for journalists who wanted its files. “I sent them a Direct Message and referred to that, asking what they had in mind,” Best told BuzzFeed News over Signal. Best has experience posting large data sets, and wondered if she could host the files on archive.org, a nonprofit digital library.

But Guccifer 2.0 had another idea. “[I] gonna send a large trove to wikileaks,” it said. Best, who had DMed with WikiLeaks before, relayed that message to WikiLeaks in a direct message on Twitter. Neither party conveyed to her whether they had interacted together before.

“I told them that Guccifer 2.0 was considering giving me at least part of the cache, which is when they asked me to be their ‘agent,’ which they said I would get ‘credit’ for,” Best said. She didn’t agree to act as Assange’s agent, she said, but stopped messaging with Guccifer 2.0.

Note, this exchange shortly follows the release by Best and Wikileaks of some Turkish emails under some interesting circumstances.

Best’s outreach led to the conversation with Wikileaks, the Wikileaks side of which Buzzfeed includes.

The following is the entirety of WikiLeaks’s messages to Best that night, according to the emails she provided. All times are ET. (Twitter does not send a user copies of their own messages, so the contents Best provided are one-sided.)

8:43 p.m.: please “leave” their conversation with them and us

8:43 p.m.: we would appreciate it if you did not dump the docs and obviously archive.org will delete them anyway

9:12 p.m.: Impact is very substantially reduced if the “news” of a release doesn’t co-incide with the ability to respond to the news by searching

9:13 p.m.: non-searchable dumps are just channeled into a few orgs with technical resources. then others won’t touch them because they perceive that the cherries have all been picked by techdirt or whatever.

9:14 p.m.: and these other media groups are very likely to take a stupid initial angle

9:15 p.m.: “We don’t know if its true. Possibly russians who knows blah blah blah” because they don’t properly verify prior to publication and are scared because they’re not us, contaminating the entire release

9:18 p.m.: in that regretable event, from our perspective, please just act as our agent we can ensure you get the right credit, cross promotion etc.

As Buzzfeed notes, at 10:16 PM ET that day, Guccifer 2.0 tweeted that he would give the documents to Wikileaks (though Buzzfeed incorrectly says Guccifer 2.0 said “it had handed those documents over” to Wikileaks; the tweet in fact describes doing so prospectively).

Buzzfeed emphasizes that this proves Wikileaks knew that it obtained documents from Guccifer 2.0, and not Seth Rich (though this is one reason why Buzzfeed’s conflation of the email sets is problematic, as the Rich conspiracy pertains necessarily to the DNC documents, not the DCCC ones). Showing Wikileaks in direct coordination with Guccifer 2.0 is important.

Equally important, however, is that Wikileaks never released the DCCC documents. Having laid out reasons why it, rather than Best, should release them (because they could make them searchable, because other media outlets would take a stupid initial angle, because other outlets would emphasize the Russian source), Wikileaks then sat on them, if indeed they ever obtained them.

Meanwhile, five minutes after saying he’d dump the DCCC documents to Wikileaks, at 10:23 PM, Guccifer 2.0 sent the first tweet in what would become an exchange via DMs with Roger Stone.

Among the things Guccifer 2.0 did in that exchange was twice try to get Stone interested in the DCCC documents he was posting (though Stone did not respond).

Similarly, also on August 12, Guccifer 2.0 started discussing sharing the emails with a Republican operative named James Bambanek who says, in a recently published report that probably misunderstands one goal of Guccifer 2.0’s actions, he was conducting infosec research.

Elsewhere, Bambanek says he turned over every message immediately to the FBI, but as he notes, they would have been monitoring all this in any case.

Every [direct message] I sent, every [one] I received was turned over to the FBI immediately. I assumed they would have been monitoring the account to begin with,” Bambenek said.

Publicly, we know that Guccifer was also sharing the DCCC documents with other Republican operatives around the country. While some of these documents were unexciting, others provided the Democrats’ oppo research for congressional races. Florida was one of the states where the documents might be said to have helped Republicans (which is not coincidentally where Mueller’s focus on the Internet Research Agency seems to be).

What seems to have happened, then, is that by getting Best to agree not to publish the emails, Guccifer 2.0 then offered them up to a series of Republicans who would (whatever value the actual documents did or didn’t have) then be implicated in obtaining campaign documents from a presumed Russian source.

Contrary to what Wikileaks said, there’d be no way Republican operatives would let actually useful documents go unused, regardless of how much work they had to do to search for them. But by convincing Best not to publish them in bulk (and by not publishing them themselves!), Wikileaks created the opportunity for Guccifer 2.0 to implicate at least a handful of Republican operatives around the country.

Yes, in Bambanek’s case that happened with the knowledge of the FBI. But how many other Republicans didn’t think to admit to the FBI what they were doing?

Update: When the New Yorker story came out last August, Best said she did not know what she was being offered. I’m assuming they were the DCCC docs from the context, timing, and related actions with state based Republicans, but that may not be the case.

Mueller Tells Guy Who Legally Can’t Be a Target That He’s Not a Target, Perhaps in a Bid to Make Him Legally Targetable

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The WaPo has a fascinating report describing that Robert Mueller informed Trump’s lawyers “in early March” that he doesn’t consider Trump a target in his investigation. That news made Trump even more determined to sit for an interview with Mueller, a decision which some of Trump’s less appropriate lawyers seem to have supported. That’s what led John Dowd to quit on March 22 (which would presumably have been two weeks or so later).

John Dowd, Trump’s top attorney dealing with the Mueller probe, resigned last month amid disputes about strategy and frustration that the president ignored his advice to refuse the special counsel’s request for an interview, according to a Trump friend.

Of course, as many people have pointed out, a sitting President can’t be indicted. NYCSouthpaw pointed to the appropriate section of the US Attorney’s Manual, which states that, “A ‘target’ is a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant.”

If Trump, as President, can’t be indicted, then he can’t be a putative defendant. So he’ll never be a target so long as he remains President. Dowd is likely the only lawyer on Trump’s team who has enough defense experience to understand that this should offer the President zero assurance at all.

He left when the other, ill-suited attorneys refused to believe him on this point.

Which is why the other main thrust of the story is so interesting. Mueller has also indicated that Mueller wants to start writing his report on obstruction — according to Robert Costa, with the intent of finishing it by June or July, just before Congress breaks for August recess, the official start of campaign season — with plans for a second report on the election conspiracy to follow.

The special counsel also told Trump’s lawyers that he is preparing a report about the president’s actions while in office and potential obstruction of justice, according to two people with knowledge of the conversations.

Mueller reiterated the need to interview Trump — both to understand whether he had any corrupt intent to thwart the Russia investigation and to complete this portion of his probe, the people said.

[snip]

Mueller’s investigators have indicated to the president’s legal team that they are considering writing reports on their findings in stages — with the first report focused on the obstruction issue, according to two people briefed on the discussions.

Under special counsel regulations, Mueller is required to report his conclusions confidentially to Deputy Attorney General Rod J. Rosenstein, who has the authority to decide whether to release the information publicly.

“They’ve said they want to write a report on this — to answer the public’s questions — and they need the president’s interview as the last step,” one person familiar with the discussions said of Mueller’s team.

Trump’s attorneys expect the president would also face questions about what he knew about any contacts by his associates with Russian officials and emissaries in 2016, several White House advisers said. The president’s allies believe a second report detailing the special counsel’s findings on Russia’s interference would be issued later.

That leads us to the question of how a report that Rod Rosenstein has authority to quash could be assured of “answering the public’s questions.” One option is Mueller could propose charges he knows Rosenstein won’t — or can’t — approve, which guarantees that the Chairs and Ranking Members of the Judiciary Committees (currently, Bob Goodlatte, who is retiring, Jerry Nadler, Chuck Grassley, and Dianne Feinstein, who faces a real challenge this year) will get at least a summary.

Mueller could trigger a reporting requirement in the special counsel regulations under which the attorney general must inform “the Chairman and Ranking Minority Member of the Judiciary Committees of each House of Congress” — both parties, in other words — at the end of the special counsel’s investigation, of any instance in which the attorney general vetoed a proposed action. Simply by proposing to indict Trump, Mueller could ensure that Congress gets the word. But this would be of only limited scope: instead of an evidence dump, it need only be a “brief notification, with an outline of the actions and the reasons for them.”

Alternately, Mueller could recommend impeachment, but Rosenstein would be bound by grand jury secrecy rules.

If Mueller believes he has information that could warrant impeachment, he could weave it into a narrative like the Starr Report. But even if Rosenstein wanted to make the report public, he would be limited by Federal Rule of Criminal Procedure 6(e), which imposes strict limits on the disclosure of grand jury materials. This rule, which has the force of law, is intended to preserve the integrity of grand jury investigations and encourage witnesses to testify fully and frankly. Rosenstein could, if he chose, issue a redacted report that conveys the gist of Mueller’s findings.

While the election conspiracy has involved grand jury subpoenas (to people like Sam Nunberg and Ted Malloch, most recently), the obstruction investigation into Trump has involved (as far as I remember) entirely voluntary interviews and mostly, if not entirely, voluntarily produced evidence. So whereas for the larger investigation, Rosenstein will face this limit (but not if the targets — like Roger Stone — are indicted), he may not here.

All of which is to say we may be looking at a public report saying that Trump should be impeached just as Republicans attempt to keep Congress.

Even as some of Mueller’s 17+ prosecutors write that up (by my estimate, only Watergate prosecutor James Quarles has been working the Trump obstruction full time), the rest will continue to roll out evidence — possibly in the form of very inflammatory indictments — of what Trump was trying to obstruct.

Effectively, I think Mueller is giving the GOP Congress a choice. They impeach Trump on the less inflammatory stuff,which will remove all threat of firing and/or pardons to threaten the investigation, not to mention make Trump eligible to be a target for the actual election conspiracy he tried to cover up. Or after they fail to hold the House while explaining why they’re covering up for Trump’s cover up, they will face a more serious inquiry relating to Trump’s involvement in the election conspiracy.

There Are Almost Certainly Other DAG Rosenstein Memos

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As I noted in this post, Robert Mueller’s team of “Attorneys for the United States of America” responded to Paul Manafort’s claim that Rod Rosenstein’s grant of authority to the Special Counsel did not extend to the money laundering he is currently being prosecuted for by revealing an August 2, 2017 memo from Rosenstein authorizing Mueller to investigate, along with a bunch of redacted stuff,

Allegations that Paul Manafort:

  • Committed a crime or crimes by colluding with Russian government officials with respect to the Russian government’s efforts to interfere with the 2016 election for President of the United States, in violation of United States law;
  • Committed a crime or crimes arising out of payments he received from the Ukrainian government before and during the tenure of President Viktor Yanukovych.

As the filing notes, this memo has not been revealed before, neither to us nor to Manafort.

That’s all very interesting (and has the DC press corps running around claiming this is a big scoop, when it is instead predictable). More interesting, however, is the date, which strongly suggests that there are more of these memos out there.

Mueller is unlikely to have waited two and a half months to memorialize his scope

I say that, first of all, because Rosenstein wrote the August 2 memo two and a half months after he appointed Mueller. Given Trump’s raging attacks on the investigation, it’d be imprudent not to get memorialization of the scope of the investigation at each step. Indeed, as I’ve noted, in the filing Mueller points to the Libby precedent, arguing that this memo “has the same legal significance” as the two memos Jim Comey used to (publicly) memorialize the scope of Patrick Fitzgerald’s investigation.

The August 2 Scope Memorandum is precisely the type of material that has previously been considered in evaluating a Special Counsel’s jurisdiction. United States v. Libby, 429 F. Supp. 2d 27 (D.D.C. 2006), involved a statutory and constitutional challenge to the authority of a Special Counsel who was appointed outside the framework of 28 C.F.R. Part 600. In rejecting that challenge, Judge Walton considered similar materials that defined the scope of the Special Counsel’s authority. See id. at 28-29, 31-32, 39 (considering the Acting Attorney General’s letter of appointment and clarification of jurisdiction as “concrete evidence * * * that delineates the Special Counsel’s authority,” and “conclud[ing] that the Special Counsel’s delegated authority is described within the four corners of the December 30, 2003 and February 6, 2004 letters”). The August 2 Scope Memorandum has the same legal significance as the original Appointment Order on the question of scope.

The first of those Comey letters, dated December 30, 2003, authorized Fitz to investigate the leak of Valerie Plame’s identity. The second of those, dated February 6, 2004, memorialized that Fitz could also investigate,

federal crimes committed in the course of, and with intent to interfere with, your investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses; to conduct appeals arising out of the matter being investigated and/or prosecuted; and to pursue administrative remedies and civil sanctions (such as civil contempt) that are within the Attorney General’s authority to impose or pursue.

It’s the second memo that memorialized Fitz’ authority to prosecute Scooter Libby for protecting Dick Cheney’s role in outing Valerie Plame.

Mueller, then the acting FBI Director, would presumably have been in the loop of the Fitz investigation (as Christopher Wray is in Mueller’s) and would have known how these two letters proceeded. So it would stand to reason he’d ask for a memo from the start, particularly given that the investigation already included multiple known targets and that Trump is even more hostile to this investigation than George Bush and Dick Cheney were to Fitz’s.

Admittedly, unlike the Comey memo, which was designed for public release, there’s no obvious, unredacted reference to a prior memo. Though something that might imply a prior memo is redacted at the top of the released memo (though this is probably a classification marking).

And, given that this memo was designed to be secret, Rosenstein may have written the memo to obscure whether there are prior ones and if so how many.

The memo closely follows two key dates

That said, the date of the memo, August 2, is mighty curious. It is six days after the July 27 Papadopoulos arrest at Dulles airport. And seven days after the July 26 no knock search of Paul Manafort’s Alexandria home.

That timing might suggest any of several things. It’s certainly possible (though unlikely) the timing is unrelated.

It’s possible that Rosenstein wrote the memo to ensure those two recent steps were covered by his grant. That wouldn’t mean that the search and arrest wouldn’t have been authorized. The memo itself notes that Mueller would be obliged to inform Rosenstein before each major investigative step.

The Special Counsel has an explicit notification obligation to the Attorney General: he “shall notify the Attorney General of events in the course of his or her investigation in conformity with the Departmental guidelines with respect to Urgent Reports.” 28 C.F.R. § 600.8(b). Those reports cover “[m]ajor developments in significant investigations and litigation,” which may include commencing an investigation; filing criminal charges; executing a search warrant; interviewing an important witness; and arresting a defendant.

Both Papadopoulos’ arrest and that dramatic search would fit this criteria. So it’s virtually certain Rosenstein reviewed Urgent Memos on both these events before they happened. Plus, his memo makes it clear that the allegations included in his memo “were within the scope of the Investigation at the time of your appointment and are within the scope of the Order,” meaning that the inclusion of them in the memo would retroactively authorize any activities that had already taken place, such as the collection of evidence at Manafort’s home outside the scope of the election inquiry.

As I noted, the memo also asserts that Special Counsels’ investigative authority, generally, extends to investigating obstruction and crimes the prosecutor might use to flip witnesses.

The filing is perhaps most interesting for the other authorities casually asserted, which are not necessarily directly relevant in this prosecution, but are for others. First, Mueller includes this footnote, making it clear his authority includes obstruction, including witness tampering.

The Special Counsel also has “the authority to investigate and prosecute federal crimes committed in the course of, and with intent to interfere with, the Special Counsel’s investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses” and has the authority “to conduct appeals arising out of the matter being investigated and/or prosecuted.” 28 C.F.R. § 600.4(a). Those authorities are not at issue here.

Those authorities are not at issue here, but they are for the Flynn, Papadopoulos, Gates, and Van der Zwaan prosecutions, and for any obstruction the White House has been engaging in. But because it is relevant for the Gates and Van der Zwaan prosecutions, that mention should preempt any Manafort attempt to discredit their pleas for the way they expose him.

The filing includes a quotation from DOJ’s discussion of special counsels making it clear that it’s normal to investigate crimes that might lead someone to flip.

[I]n deciding when additional jurisdiction is needed, the Special Counsel can draw guidance from the Department’s discussion accompanying the issuance of the Special Counsel regulations. That discussion illustrated the type of “adjustments to jurisdiction” that fall within Section 600.4(b). “For example,” the discussion stated, “a Special Counsel assigned responsibility for an alleged false statement about a government program may request additional jurisdiction to investigate allegations of misconduct with respect to the administration of that program; [or] a Special Counsel may conclude that investigating otherwise unrelated allegations against a central witness in the matter is necessary to obtain cooperation.”

That one is technically relevant here — one thing Mueller is doing with the Manafort prosecution (and successfully did with the Gates one) is to flip witnesses against Trump. But it also makes it clear that Mueller could do so more generally.

Mueller used the false statements charges against Papadopoulos to flip him. He surely hopes to use the money laundering charges against Manafort to flip him, too. Both issues may have been at issue in any memo written to newly cover the events of late July.

Mueller may not have revealed the scope of the Manafort investigation at that time

Now consider this detail: the second bullet describing the extent of the investigation into Manafort has a semi-colon, not a period.

It’s possible Mueller used semi-colons after all these bullets (of which Manafort’s is the second or third entry). But that, plus the resumption of the redaction without a double space suggests there may be another bulleted allegation in the Manafort allegation.

There are two other (known) things that might merit a special bullet. First, while it would seem to fall under the general election collusion bullet, Rosenstein may have included a bullet describing collusion with Aras Agalarov and friends in the wake of learning about the June 9 Trump Tower meeting with his employees. More likely, Rosenstein may have included a bullet specifically authorizing an investigation of Manafort’s ties with Oleg Deripaska and Konstantin Kilimnik.

The Mueller memo actually includes a specific reference to that, which as I’ve noted I will return to.

Open-source reporting also has described business arrangements between Manafort and “a Russian oligarch, Oleg Deripaska, a close ally of President Vladimir V. Putin.”

The latter might be of particular import, given that we know a bunch of fall 2017 interviews focused on Manafort’s ties to Deripaska and the ongoing cover-up with Kilimnik regarding the Skadden Arps report on the Yulia Tymoshenko prosecution.

All of which is to say that this memo may reflect a new expansion of the Manafort investigation, perhaps pursuant to whatever the FBI discovered in that raid on Manafort’s home. If so, that should be apparent to him, as he and his lawyers know what was seized.

Still, I wouldn’t be surprised if he inquired about what authorized that July 26 raid, if for no other reason than to sustain his effort to make more information on Mueller’s investigation public.

The redactions almost certainly hide two expansions to the investigation as it existed in October 2016

Now let’s turn to what else (besides another possible Manafort bullet) the redactions might show, and what may have been added since.

The unredacted description of the Manafort investigation takes up very roughly about one fifth of the section describing allegations Mueller was pursuing.

The Schiff Memo revealed that DOJ had sub-investigations into four individuals in October 2016.

Endnote 7 made it clear that, in addition to Page, this included Flynn and Papadopoulos, probably not Rick Gates, and one other person, possibly Roger Stone.

In August 2017, all four of those would have been included in a Rosenstein memo, possibly with a bullet dedicated to Gates alone added. That said, not all of these would require two or more bullets (and therefore as much space as the Manafort description). Papadopoulos’ description might include two, one dedicated to the collusion and one to the lying about collusion, or just one encompassing both the collusion and the lying. Flynn’s might include three, one dedicated to the collusion, one to the lying about it, and one to the unregistered foreign agent work, including with Turkey, that we know Mueller to have been investigating; or, as with Papadopoulos, the lying about the collusion might be incorporated into that bullet. Stone’s bullet would likely have only reflected the collusion, an investigation that is currently very active. Carter Page’s suspected role as a foreign agent might be one bullet or two.

That suggests, though doesn’t confirm, that there are a few other things included in those redacted bullets, things not included in the investigation in October 2016 as reflected in the Schiff memo.

Indeed, we should expect two more things to be included in the bullet points: First, the name of any suspect, including the President, associated with the obstruction of justice. Rosenstein himself had already been interviewed with respect to that aspect of the investigation by August 2, so surely Rosenstein had already authorized that aspect of the investigation.

The redactions most likely also include the names of Don Jr and Jared Kushner (and Paul Manafort), for their suspected collusion with Russia as reflected in the June 9 meeting. At least according to public reporting, Mueller may have first learned of this in June when Manafort and Kushner confirmed it in turning over evidence to Congress and Mueller. The first revelations that Mueller was obtaining subpoenas from a dedicated grand jury were on August 3, just one day after this memo. That same day, reports described Mueller issuing subpoenas related to the June 9 meeting.

Indeed, it’s quite possible Rosenstein issued this memo to memorialize the inclusion of the President’s spawn among the suspects of the investigation.

Rosenstein has almost certainly updated this memo since August 2

All that said, there’s not enough redacted space to include the known expanded current scope of the investigation, and given that the newly expanded scope gets closer to the President, Rosenstein has surely issued an update to this memo since then. These things are all definitively included in the current scope of the investigation and might warrant special mention in any update to Rosenstein’s authorizing memo:

Many of these — particularly the ones that affect only Russians — might be included under a generic “collusion with Russia” bullet. The closer scrutiny on Jared, however, surely would get an update, as would any special focus on the Attorney General.

More importantly, to the extent Mueller really is investigating Trump’s business interests (whether that investigation is limited just to Russian business, or more broadly) — the red line the NYT helpfully set for the President — that would necessarily be included in the most up-to-date memo authorizing Mueller’s activities. There is no way Mueller would take actions involving the President personally without having the authorization to do so in writing.

Which is why we can be virtually certain the August 2 memo is not the last memo Rosenstein has written to authorize Mueller’s actions.

Mind you, Mueller probably wouldn’t want to release a memo with several pages of redacted allegations. Which may be why we’re looking at the redacted version of an almost certainly superseded memo.

Updated: Later today Mueller’s team asked to file a copy of an exhibit–which given Judge Berman Jackson’s description of it as released in redacted form, has to be the Rosenstein memo–under seal. Which suggests they’re going to show Manafort what else they’re investigating (which I bet is the Deripaska stuff).

The Daily Beast Guccifer Scoop and Those GRU Officers Sanctioned Last Week

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The Daily Beast has a story reporting (in addition to the already reported news that the DNC hack got moved under Robert Mueller) that the person behind the Guccifer 2.0 persona “slipped up” once and failed to use the VPN hiding his location in the GRU headquarters in Moscow.

[O]n one occasion, The Daily Beast has learned, Guccifer failed to activate the VPN client before logging on. As a result, he left a real, Moscow-based Internet Protocol address in the server logs of an American social media company, according to a source familiar with the government’s Guccifer investigation.

The US identified which particular officer was behind the Guccifer persona.

Working off the IP address, U.S. investigators identified Guccifer 2.0 as a particular GRU officer working out of the agency’s headquarters on Grizodubovoy Street in Moscow.

And then, according to TDB, the Guccifer persona was handed off to a more experienced GRU officer, with better English skills.

Sometime after its hasty launch, the Guccifer persona was handed off to a more experienced GRU officer, according to a source familiar with the matter. The timing of that handoff is unclear, but Guccifer 2.0’s last blog post, from Jan. 12, 2017, evinced a far greater command of English that the persona’s earlier efforts.

TDB’s sources did not reveal the name of the officer identified from the VPN “slip up.”

The Daily Beast’s sources did not disclose which particular officer worked as Guccifer.

But we may already know the name or names of the GRU officers involved. As I noted last week, Treasury added two names to the list of GRU officers sanctioned in conjunction with the DNC hack: Sergei Afanasyev and Grigoriy Viktorovich Molchanov. Both would actually be (very) experienced officers — they are 55 and 62. And both include very interesting “as of” dates identifying the last point when our intelligence officials identified their positions: February 2017 and April 2016, respectively.

The latter is of particular interest, as it came during the period when Guccifer 2.0 was setting up his infrastructure. But the government doesn’t know a ton about this guy — they know his birth year, but not his birth date, and possibly not even his passport information.

In any case, last week, the government revealed two new people it blames (and therefore sanctioned) for the DNC hack.

As TDB notes, the revelation that the government has tied Guccifer 2.0 to a known GRU officer is utterly damning for Roger Stone, who has admitted talking to him. But they don’t lay out how squirrelly Stone was in early March when trying to deny he was in trouble for his dalliances with Guccifer 2.0 and Wikileaks, which I laid out here.

In his response he does the following:

  • Raises doubts that he was actually talking to Guccifer 2.0 (even though Guccifer 2.0’s only identity was virtual, so Stone’s online interactions with any entity running the Guccifer Twitter account would by definition be communication with Guccifer 2.0)
  • Repeats his earlier doubts that Guccifer 2.0 is a Russian operative
  • Emphasizes that he couldn’t have couldn’t have been involved in any hack of the DNC Guccifer 2.0 had done because he first spoke to him six weeks after the email release (in reality, he was speaking to him three weeks after the Wikileaks release)
  • Admits he once believed Guccifer 2.0 did the hack but (pointing to the Bill Binney analysis, and giving it a slightly different focus than he had in September) claims he no longer believes that
  • Invents something about a WaPo report that’s not true, thereby shifting the focus to receiving documents (as opposed to, say, information)
  • Denies he received documents from anyone but not that he saw documents (other than the Wikileaks ones) before they were released

This denial stops well short of explaining why he reached out to Guccifer. And it does nothing to change the record — one backed by his own writing — that Stone reached out because he believed Guccifer, whoever he might be, had hacked the DNC.

At the time Stone reached out to Guccifer (as I pointed out, he misrepresented the timing of this somewhat in his testimony), he believed Guccifer had violated the law by hacking the DNC.

He never does explain to Todd why he did reach out.

Guccifer 2.0 never comes back in the remainder of the interview.

Just weeks ago, when his buddy Sam Nunberg was giving (potentially immunized) testimony to the grand jury, Stone was really really squirrelly about whether his conversations with Guccifer 2.0 put him at legal jeopardy. The confirmation of the GRU tie may provide one reason why he’s so squirrelly.

Update: As Kaspersky’s Aleks Gostev notes, Treasury should know far more on Sergei Afanasyev. RT publicly described him as Deputy Chief of GRU in April 2016. And Molchanov is, at least now, head of GRU’s academy.

“What Did the President Do and What Do His Lawyers Claim He Was Thinking?”

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Ever since Richard Nixon, the big question one asks of presidential involvement in scandals is about the cover-up: “what did the president know and when did he know it?” Not so Trump in the investigation into his campaign’s conspiracy with Russia.

Robert Mueller’s prosecutors are already asking about the president’s actions: “What did the president do and what was he thinking when he did it?” WaPo describes the Trump team’s effort to dodge such questions by offering a summary of what his lawyers claim he did and was thinking.

The written materials provided to Mueller’s office include summaries of internal White House memos and contemporaneous correspondence about events Mueller is investigating, including the ousters of national security adviser Michael Flynn and FBI Director James B. Comey. The documents describe the White House players involved and the president’s actions.

Special counsel investigators have told Trump’s lawyers that their main questions about the president fall into two simple categories, the two people said: “What did he do?” and “What was he thinking when he did it?”

Trump’s lawyers expect Mueller’s team to ask whether Trump knew about Flynn’s communications with Russian Ambassador Sergey Kislyak during the presidential transition, for example, and what instructions, if any, the president gave Flynn about the contact, according to two advisers.

Trump said in February that he fired Flynn because he had misled Vice President Pence about his contact with Kislyak. He said he fired Comey because he had mishandled an investigation of Democratic presidential candidate Hillary Clinton.

CNN’s version of the same story seems to suggest such a summary is something they’ve already done, that what was new about last week was a sit-down with Watergate lawyer James Quarles.

As President Donald Trump’s reaction to special counsel Robert Mueller grows more irate by the day, attorneys on both sides sat down last week in a rare face-to-face discussion about the topics investigators could inquire of the President. It was the first in-person meeting after several weeks of informal discussions between the two sides, according to two sources familiar with the talks.

Mueller’s team added granularity to the topics it originally discussed with the defense team months ago, like the firing of FBI Director James Comey, according to one of the sources.

[snip]

The President’s attorneys sent the special counsel a summary of evidence they had turned over to prosecutors already, a practice they’ve followed multiple times throughout the investigation. Mueller himself didn’t attend the meeting. But prosecutors including former Watergate prosecutor James Quarles III gave Trump’s lawyers enough detail that the President’s team wrote a memo with possible questions they expect to be asked of him.

In addition to Trump’s involvement in directing Mike Flynn to ask Sergey Kislyak to defer any response to the new sanctions imposed in December 2016, CNN says that Jeff Sessions’ involvement in firing Comey is also on the list of questions they have for the president.

This time around, for instance, the prosecutors said they would ask about Attorney General Jeff Sessions’ involvement in the Comey dismissal and what Trump knew about national security adviser Michael Flynn’s phone calls with then-Russian Ambassador Sergey Kislyak in late December 2016.

[snip]

CNN reported in January that Mueller’s team had given the President’s lawyers general topics for an interview, such as Trump’s request that Comey drop the investigation into Flynn, his reaction to Comey’s May 2017 testimony on Capitol Hill, and Trump’s contact with intelligence officials about the Russia investigation.

A source familiar with the talks said more recent discussions about Trump’s interview also touched on Sessions and Flynn. Sessions previously spoke to Mueller’s team while investigators looked into possible obstruction of justice. And during the transition, Flynn had spoken to Kisklyak about sanctions and the United Nations, then lied to investigators about the calls before Trump fired him. Flynn pleaded guilty to lying to investigators and agreed to cooperate with Mueller in December.

The questions about Sessions and Flynn are both interesting because of recent events.

First, CNN’s story reporting an interest in Sessions’ role in Comey’s firing came out after the report that Sessions and the president traveled separately yesterday to the opioid event they appeared at together. I found that odd at first — Trump should be happy that Sessions fired Andy McCabe for him last Friday. Perhaps Trump is mad that by firing McCabe, Sessions and Rod Rosenstein have taken one excuse he could use to fire both of them off the table. Or perhaps Sessions has realized that he needs to avoid talking to Trump about his own conversations with prosecutors. But if Sessions has become a witness against Trump and the discussions last week made that clear, then it puts the president in a particularly exquisite bind, because the Senate would not take kindly if Trump fired one of their own after he went to such lengths to fire McCabe.

The separate flight is all the more interesting given the news that three witnesses have testified that Sessions was actually more supportive of Trump’s outreach to Russia than he himself (and JD Gordon) has claimed.

And given Mueller’s apparent efforts to confirm what has long been obvious — that KT McFarland was relaying Trump’s orders to Flynn on what to say to Kislyak back in December 2016, consider Mike Flynn’s odd campaign appearance last Friday. Amid stories that he’s beginning to rebuild his life, Flynn started a campaign speech for a right wing nut job attempting to unseat Maxine Waters by alluding to his unfair treatment in an unfair process.

“I’m not here to complain about who has done me wrong or how unfair I’ve been treated or how unfair the entire process has been,” Flynn said to a small audience, which laughed at his remark, though Flynn did not.

Flynn then went on to reflect his role in getting Trump elected.

“All of us are imperfect,” he said. “Heck, I used to introduce … Trump during our various campaign stops as an imperfect candidate. I mean, clearly, he’s not a traditional politician. But his ‘Make America Great Again’ philosophy energized the country enough to get him overwhelmingly elected.”

“Whether we like it or not, that’s what happened,” Flynn added.

Particularly given the others who’ve endorsed Omar Navarro, like Roger Stone and Alex Jones, you’d think this was all a dig at Mueller, and it may well be. Except that Jared Kushner had an opportunity to exonerate Flynn last fall; his failure to do so is what led Flynn to flip, leading to these questions about whether Trump ordered Flynn to ask the Russians to delay their response to sanctions.

Now, any confirmation that the president ordered Flynn to ask Kislyak to delay his response on one level makes Flynn’s effort less damning: it’s one thing for an incoming National Security Advisor to freelance in trying to undermine the incumbent’s policies. It’s another thing for the incoming president to do so.

But contrary to the obstruction narrative that every fool has been repeating, Mueller is not just interested in how and why Jim Comey got fired. He’s also interested in why Trump fired Flynn. That question becomes more pressing if the president ordered Flynn to chat up Kislyak, and if the president ordered Flynn to lie to hide what he had done (leading to his lie to the FBI). Why not just admit that that was incoming policy? Why not just admit to the FBI that Flynn was acting on Trump’s orders? Instead of doing that, Flynn lied and Trump tried instead to thwart the investigation into Flynn, up to and including firing Comey.

Why fire Comey just before the meeting with the Russians and then brag about it to them?

For months, credulous journalists have been distinguishing between the president’s presumed obstruction and the substantive conspiracy others were being accused of, as if no Trump flunkies were involved in the cover-up and Trump was walled off from the conspiracy. But that distinction has never held up, especially not given the interest in why Trump fired Flynn.

“What did the president do and what the fuck was he thinking when he did it?” are questions not about the cover-up, but about the substantive crime.

And that’s the question Mueller’s Watergate prosecutor has now posed to the president’s lawyers.

How the DNC Hack Skeptics’ Dominant Theory Sinks Stone

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I’ve been thinking about something since I wrote this piece on Roger Stone’s Swiss cheese denials of conspiring with Guccifer 2.0 or Wikileaks on the hack-and-leak. As I laid out, Stone’s denial consists of two tactics: he admits he spoke with Guccifer 2.0 at a time he believed him to have done the hack but notes that that happened after (he claims six weeks, but it was really three) the documents already started coming out. And he denies knowing anything in advance about Wikileaks, which wouldn’t be a problem anyway, he says, because there’s no evidence Wikileaks is a Russian asset.

Effectively, that puts Stone’s involvement after the undeniably criminal act — the hack of the DNC and puts the rest into simple general foreknowledge of Wikileaks’ plan.

As I noted in my first post on Stone’s non-denials, that doesn’t address the possibility he was involved in the Peter Smith led rat-fuck negotiations with Russian hackers to find Hillary’s deleted emails.

But there’s one other problem with it.

According to the public record, Guccifer 2.0 first spoke with Stone on August 12 (though in his statement to Congress, he fudged that date interestingly and claimed the first contact — perhaps meaning DM — was August 14). While that post-dates all known hacking, it pre-dates at least one and possibly several key dates on the leak part of the operation. As Raffi Khatchadourian lays out, Wikileaks may have obtained the John Podesta emails around this time.

A pattern that was set in June appeared to recur: just before DCLeaks became active with election publications, WikiLeaks began to prepare another tranche of e-mails, this time culled from John Podesta’s Gmail account. “We are working around the clock,” Assange told Fox News in late August. “We have received quite a lot of material.” It is unclear how long Assange had been in possession of the e-mails, but a staffer assigned to the project suggested that he had received them in the late summer: “As soon as we got them, we started working on them, and then we started publishing them. From when we received them to when we published them, it was a real crunch. My only wish is that we had the equivalent from the Republicans.”

All of the raw e-mail files that WikiLeaks published from Podesta’s account are dated September 19th, which appears to indicate the day that they were copied or modified for some purpose.

Indeed, Stone’s “Podesta time in the barrel” comment, which Chuck Todd noted addressed Tony but not John Podesta, may even have preceded Wikileaks’ receipt of the emails.

But Stone’s discussions with Guccifer 2.0 undeniably precede an event that, at least according to the skeptics’ theory, necessarily precedes the publication of Podesta’s emails. That’s Craig Murray obtaining … something from someone while he was in the US for the Sam Adams Award on September 25. He has said he didn’t obtain the documents, but it might be a key or something.

That still doesn’t, by itself, make Stone’s conduct criminal. But it does mean his timeline is not exonerating.

Roger Stone’s Rat-Eating Swiss Cheese Denials

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Back when Roger Stone leaked his September testimony to HPSCI, I noted that it misrepresented the key allegations against him, meaning he never denied the important parts.

I’m even more interested in how he depicts what he claims are the three allegations made against him.

Members of this Committee have made three basic assertions against me which bust be rebutted her today. The charge that I knew in advance about, and predicted, the hacking of the Clinton campaign chairman John Podesta’s email, that I had advanced knowledge of the source or actual content of the WikiLeaks disclosures regarding Hillary Clinton or that, my now public exchange with a persona that our intelligence agencies claim, but cannot prove, is a Russian asset, is anything but innocuous and are entirely false.

In point of fact, this tripartite accusation is actually a misstatement of the allegations against him (though in his rebuttal of them, he is helped immensely by the sloppiness of public statements made by Democrats, especially those on the panel, which I’ve criticized myself). Generally, the accusation is more direct: that in conversing with both Julian Assange (though a cut-out) and Guccifer 2.0, Stone was facilitating or in some way helping the Trump campaign maximally exploit the Russian releases that were coming.

The same is true of his interview with Chuck Todd yesterday.

I’m most interested in the way Stone addresses his direct exchange with Guccifer 2.0, then restricts the rest of his denials to Wikileaks. When Todd asks Stone why he reached out to both Guccifer and Wikileaks, Stone focuses his attention on the former.

Todd: Why did you reach out to Guccifer? Why did you reach out to Wikileaks?

Stone: First of all, my direct messages with Guccifer 2.0, if that’s who it really is, come six weeks, almost six weeks after the DNC emails had been published by Wikileaks. So in order to collude in their hacking, which I had nothing whatsoever to do with, one would have needed a time machine. Secondarily, I wrote a very long piece, you can find it still at the Stone Cold Truth. I doubt that Guccifer is, indeed, a Russian operative. I also once believed that he had hacked the DNC. I don’t believe that anymore either. I believe it was an inside job and the preponderance of evidence points to a load to a thumb drive or some other portable device and the device is coming out the back door. But, Chuck, ten days ago, the Washington Post that based on the Democratic minority that the Russians had sent documents to me for review. I never received any documents from the Russians or anybody representing them. I never had any contact with any

Todd: Did you receive any documents and you didn’t know it was a Russian?

Stone: I never received any documents from anyone purporting to be a Russian or otherwise, and I never saw the Wikileaks documents in advance.

In his response he does the following:

  • Raises doubts that he was actually talking to Guccifer 2.0 (even though Guccifer 2.0’s only identity was virtual, so Stone’s online interactions with any entity running the Guccifer Twitter account would by definition be communication with Guccifer 2.0)
  • Repeats his earlier doubts that Guccifer 2.0 is a Russian operative
  • Emphasizes that he couldn’t have couldn’t have been involved in any hack of the DNC Guccifer 2.0 had done because he first spoke to him six weeks after the email release (in reality, he was speaking to him three weeks after the Wikileaks release)
  • Admits he once believed Guccifer 2.0 did the hack but (pointing to the Bill Binney analysis, and giving it a slightly different focus than he had in September) claims he no longer believes that
  • Invents something about a WaPo report that’s not true, thereby shifting the focus to receiving documents (as opposed to, say, information)
  • Denies he received documents from anyone but not that he saw documents (other than the Wikileaks ones) before they were released

This denial stops well short of explaining why he reached out to Guccifer. And it does nothing to change the record — one backed by his own writing — that Stone reached out because he believed Guccifer, whoever he might be, had hacked the DNC.

At the time Stone reached out to Guccifer (as I pointed out, he misrepresented the timing of this somewhat in his testimony), he believed Guccifer had violated the law by hacking the DNC.

He never does explain to Todd why he did reach out.

Guccifer 2.0 never comes back in the remainder of the interview. The first time Todd asks Stone if there had been “collusion” with the Russians, Stone answers it generally, insisting Trump needed no help to beat Hillary.

Todd: You have made the case here that there was no collusion here that you’re aware of. Would it have been wrong to collude with a foreign adversary to undermine Hillary Clinton’s campaign?

Stone: Well, there’s no evidence that this happened, you’re asking me to answer a hypothetical question. It seems to me that Mr. Steele was colluding with the Russians.

Todd: Let me ask you this. Do you think it’s fair game to get incriminating evidence from a foreign government about your political opponent?

Stone: But that didn’t happen, Chuck, so I’m not going to answer a hypothetical question. It was unnecessary. The idea that Donald Trump needed help from the Russians to beat Hillary Clinton it’s an excuse, a canard, a fairy tale. I don’t believe it ever happened.

The next time — when Stone first labels then backs way the fuck off labeling conspiring with the Russians as treason — Stone then focuses on how such conspiring would only be treason if you believed that Assange was a Russian agent.

Stone: Chuck I’ve been accused of being a dirty trickster. There’s one trick that’s not in my bag. That’s treason. I have no knowledge or involvement with Russians–

Todd: And you believe

Stone: And I have no knowledge of anybody else who does.

Todd: Let me establish something. You believe, if unbeknownst to you, there is somebody on the Trump campaign who worked with the Russians on these email releases, that’s a treasonous act?

Stone: No, actually, I don’t think so because for it to be a treasonous act, Assange would have to be provably a Russian asset, and Wikileaks would have to be a Russian front and I do not believe that’s the case.

Todd: Let me back you up there. You think it’s possible Wikileaks and the Trump campaign coordinated the release?

Stone: I didn’t say that at all. I have no knowledge of that and I make no such claim.

Todd: No, I understand that. You just issued that hypothetical. So what you’re saying is had that occurred you don’t believe that’s, you don’t believe, you don’t believe that that’s against the law?

Stone: This is all based on a premise that Wikileaks is a Russian front and Assange is a Russian agent. As I said I reject that. On the other hand I have no knowledge that that happened. It’s certainly did not happen in my case. That isn’t something I was involved in.

When asked whether it would be illegal to work with Wikileaks (Stone’s contacts with Guccifer at a time he believed Guccifer to have hacked the DNC go unmentioned) Stone again focuses on whether Wikileaks was Russian, not on the conspiracy to hack and leak documents.

This focus on Wikileaks instead of Guccifer 2.0 carries over to the statement Stone issued to ABC:

I never received anything whatsoever from WikiLeaks regarding the source, content or timing of their disclosures regarding Hillary Clinton, the DNC or Podesta. I never received any material from them at all. I never received any material from any source that constituted the material ultimately published by WikiLeaks. I never discussed the WikiLeaks disclosures regarding Hillary Clinton or the DNC with candidate or President Donald Trump before during or after the election. I don’t know what Donald Trump knew about the WikiLeaks disclosures regarding Hillary or the DNC if anything and who he learned it from if anyone.

No one, including Sam Nunberg is in possession If any evidence to the contrary because such evidence does not exist … This will be an impossible case to bring because the allegation that I knew about the WikiLeaks disclosures beyond what Assange himself had said in interviews and tweets or that I had and shared this material with anyone in the Trump campaign or anyone else is categorically false. Assange himself has said and written that I never predicted anything that he had not already stated in public.

There’s very good reason Stone would want to focus on Wikileaks rather than Guccifer.

Even by his own dodgy explanation, at the time he reached out to Guccifer, he believed that Guccifer had hacked the DNC. While it’s true that the public record shows Stone stopping short of accepting documents from Guccifer (all this ignores Stone’s reported involvement in a Guccifer-suggested Peter Smith effort to obtain Hillary’s Clinton Foundation emails), Stone’s interest in coordinating with the hack-and-leak is clear.

And it seems Sam Nunberg may fear that his past testimony and communications with Stone would document that interest. If he knows Stone did have non-public communications with Guccifer, but didn’t believe Guccifer to be Russian, it would also explain why Nunberg said he thought Putin was too smart to collude with Trump, but that his testimony might hurt Stone.

Adding one more point to this: early in the interview, Stone goes to some lengths to say that he proved he had actually separated from the Trump campaign by contemporaneously showing two reporters his resignation letter. This is akin to something Carter Page did in his HPSCI testimony. But given how many of those conspiring with Russia on the Trump campaign (Carter Page — especially after his departure, George Papadopoulos, and Paul Manafort) didn’t have formal roles, it’s not clear that letter would be definitive. Indeed, it might be the opposite, one of a group of people who arranged plausible deniability by getting or staying off the campaign payroll.

Update: Fixed my misrepresentation of Stone’s claim about the six week delay, and fact-checked it to note it was only three weeks.

Nunberg’s Claim that Trump Talked of the June 9 Meeting the Week Before Is Plausible

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Sometime ratfucker Sam Nunberg has been running from cable channel to cable channel trying to get them to believe he’s going to blow off a subpoena from Robert Mueller to repeat what he said a week and a half ago in an interview before the grand jury, protected by immunity.

Among his crazy rants, he claimed that Trump knew about the June 9 Trump Tower meeting “the week before.”

You know it’s not true. He talked about it the week before. And I don’t know why he did this. All he had to say was, yeah, we met with the Russians. The Russians offered us something and we thought they had something and that was it. I don’t know why he went around trying to hide. He shouldn’t have.

Nothing has reported on how he would know this. He’s close with Roger Stone (indeed, that’s who he says he’s trying to protect by blowing off the subpoena), and Stone remained in touch with Trump — reportedly still does. So maybe that’s how he knows.

But the claim is plausible.

After all, when Rob Goldstone first emailed Don Jr about the meeting on June 3 (six days before the meeting), he suggested he could go through Trump’s assistant Rhona.

Emin just called and asked me to contact you with something very interesting.

The Crown prosecutor of Russia met with his father Aras this morning and in their meeting offered to provide the Trump campaign with some official documents and information that would incriminate Hillary and her dealings with Russia and would be very useful to your father.

This is obviously very high level and sensitive information but is part of Russia and its government’s support for Mr. Trump – helped along by Aras and Emin.

What do you think is the best way to handle this information and would you be able to speak to Emin about it directly?

I can also send this info to your father via Rhona, but it is ultra sensitive so wanted to send to you first.

He was instead reaching out to Don Jr because the meeting was “ultra sensitive.” But the implication was, ultimately, that Trump should know about this meeting, but that perhaps this was even too sensitive to run through Rhona (as I’ve said, I don’t think Goldstone is really talking about the crown prosecutor).

So the idea was Goldstone calls Don Jr, and Don Jr tells Pops directly.

Had he done that, then Trump would, indeed, have known about the meeting the previous week (June 9 was a Thursday; the 3rd would have been the previous Friday).

So had Uday gone and told Pops right away it is conceivable that Trump (whom Nunberg elsewhere accused of being incapable of colluding with Russian because he would blab about it) was talking about it “the week before.”

Which would change the stakes of the meeting dramatically.

Update: Nunberg told Zack Beauchamp that he was talking of Trump’s public statement on June 7.

Nunberg was actually talking about public comments Trump made on June 7, 2016 — two days before the Trump Tower meeting. In it, Trump promised that he would soon be offering interesting revelations about Clinton.

“I am going to give a major speech on probably Monday of next week, and we’re going to be discussing all of the things that have taken place with the Clintons,” then-candidate Trump said. “I think you’re going to find it very informative and very, very interesting.”

Nunberg interpreted Trump’s comments as a veiled reference to the Trump Tower meeting that Donald Trump Jr. had set up. “He said publicly we’ll find something out about Hillary Clinton,” Nunberg told me about Trump. “You can look it up.”

This, he emphasized during our conversation, is only his interpretation of Trump’s comments. He has no special inside knowledge that Trump was informed of the meeting before it happened, as many have taken his CNN comments to imply, or that Trump was referencing it in that speech. Nunberg thinks that’s what Trump meant, but he never heard any proof.

The Mueller Subpoena Starts at the Moment a Real Estate Deal in Moscow Might Get Trump Elected

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Axios got a copy of a subpoena someone got from Robert Mueller last month. It asks for all communications (including handwritten notes) “this witness sent and received regarding the following people.” The list of people includes a lot of people you’d expect, but it’s missing a few:

  1. Carter Page
  2. Corey Lewandowski
  3. Donald J. Trump
  4. Hope Hicks
  5. Keith Schiller
  6. Michael Cohen
  7. Paul Manafort
  8. Rick Gates
  9. Roger Stone
  10. Steve Bannon

Cooperating witnesses George Papadopoulos and Mike Flynn aren’t on this list, but cooperating witness Rick Gates is (which may date the subpoena to before Gates flipped on February 23). The order is of particular interest (or, maybe they’re just alpha order by first name): Page, the long term suspected Russian asset, followed immediately by Lewandowski, who was in the loop on the stolen email offer, followed by the President and those closest to him, followed by Manafort and his closest aide. Then Stone and then — in the same month he gave 20 hours of testimony — Bannon.

Neither Don Jr nor Kushner is on this list. Given the emphasis on communications “regarding” the listed people, and given the way that Abbe Lowell purposely avoided giving “about”communications to Congress (and possibly to Mueller), and also given that Jonathan Swan is Axios’ key White House scoopster, I actually don’t rule out the witness being Jared. Or, as I joked on Twitter, like Flynn and Papadopoulos, maybe he has already flipped and so isn’t on this list.

Whoever it is, the absences on the list are probably a function of who is legitimately in this person’s circle.

Perhaps most telling, however, is the timing: November 1, 2015, to the present. Recall that on November 3, sometime FBI informant Felix Sater sent Michael Cohen (on the list) an email promising that a real estate deal in Moscow might lead to Trump becoming President. (Here’s the original WaPo scoop on the story.)

On November 3, 2015, two months before the GOP primary started in earnest and barely over a year before the presidential election, mobbed up real estate broker and sometime FBI informant Felix Sater emailed Trump Organization Executive Vice President and Special Counsel to Trump, Michael Cohen. According to the fragment we read, Sater boasts of his access to Putin going back to 2006 (when the Ivanka incident reportedly happened), and said “we can engineer” “our boy” becoming “President of the USA.”

[snip]

Mr. Sater, a Russian immigrant, said he had lined up financing for the Trump Tower deal with VTB Bank, a Russian bank that was under American sanctions for involvement in Moscow’s efforts to undermine democracy in Ukraine. In another email, Mr. Sater envisioned a ribbon-cutting ceremony in Moscow.

“I will get Putin on this program and we will get Donald elected,” Mr. Sater wrote.

That’s the start date Mueller uses for potential communications among people including Trump’s closest aides, including Cohen (but not including Sater) in the Russian investigation.

Update: Adding, we know that on October 21, 2016, the FBI had investigations into Manafort, Page, Stone, and possibly Gates. Is it possible this list is the sum of all those against whom sub-investigations have been opened (or were at the time this subpoena was issued)?