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John Durham and Newly-Sanctioned Alfa Bank’s Filings: “Almost like they were written by the same people”

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In a DC hearing on February 9 regarding Alfa Bank’s attempt to obtain documents from Michael Sussmann before his trial, DC Superior Judge Shana Frost Matini observed that the Alfa Bank allegations and the John Durham indictment seemed like they could be written by the same people.

[R]ight now, given the — if the closeness of Alpha’s allegations, I mean, quite frankly, it’s — reading Alpha’s submissions and what the — and that compared to the indictment, there’s — it’s almost like they were written by the same people in some way. [Alpha misspelling original]

Judge Matini, a Trump appointee, scolded Alfa — which over this past weekend was included in sanctions against Russian banks in retaliation for the invasion — for claiming that their lawsuit and Durham’s indictment of Sussmann were not closely related after having raised the indictment in the first place.

As to the claims that the criminal and civil proceedings are not closely related, this is a surprising representation for Alpha to make, given that Alpha was the one to bring the criminal charges to the Court’s attention by filing what was styled as a notice of supplemental authority in support of its Motion to Compel.

Of course, there is no Supplemental Authority here. A criminal indictment is not an opinion of the Court. It’s just a charge that the prosecuting authority is bringing against an individual with facts that are alleged to support the charge.

In dual lawsuits in FL and PA, Alfa Bank purports to be trying to figure out who allegedly faked DNS records to make it look like Alfa was in contact with Trump back in 2016 so it can sue those people. Rather than finding anyone to sue, however, it has instead spent its time subpoenaing experts to learn as much as it can about how the US tracks DNS records to prevent cyberattacks by — among other hostile countries — Russia.

Matini ruled that Alfa’s effort to get more information from Sussmann will have to wait until June, after his trial. (It’s unclear whether the sanctioned bank will still have legal means to pay Skadden lawyers to pursue this lawsuit at that point.)

But since then, the timelines of the Alfa Bank and Durham investigations have closely paralleled.

Of particular interest, on the morning of February 11, Rodney Joffe — referred to as Tech Executive-1 in the Durham filings — sat for an almost 5-hour deposition with Alfa Bank’s lawyers. He revealed that Durham had first approached him for an interview at least a year earlier. He revealed he had been asked to testify before the grand jury, but he “declined to interview,” presumably meaning he told Durham he’d invoke the Fifth (just as Don Jr and probably his daddy are understood to have done with Mueller).

Joffe’s refusal to voluntarily feed this witch hunt continued in his Alfa deposition. Citing the ongoing Durham investigation, he invoked the Fifth Amendment a slew of times (though not as many times as your average Trump man in a financial fraud deposition or even Alex Jones in an interview about an insurrection). Those questions to which he invoked his Fifth Amendment rights and those he answered mapped out an interesting territory, marking who he does know and those Alfa thought he did but that he does not.

For example, he said he had never heard of Alfa Bank before investigating the anomaly related to it. He said he had never met Jean Camp or several of the other researchers that frothers are certain he conspired with. Joffe twice said he had never met Christopher Steele and also said he “had no idea” that Sussmann met with Steele about the server allegations. He denied knowing what the contract between Georgia Tech and DARPA looked like.

Alfa made a number of mistakes — confusing a domain name with a business. Claiming he authored a paper that David Dagon had. Asking him about several emails he hadn’t been sent.

There were several claims Alfa made that Joffe’s lawyer, Steven Tyrrell, established a record were unproven assumptions on Alfa’s part, such as that Joffe got one of the white papers described in the indictment. Importantly, that includes a question about the EOP server.

Q: I was just going to ask Mr. Joffe whether or not he knows who the executive branch office of the U.S. government is?

A: I have to invoke my Fifth Amendment rights.

Mr. Tyrrell: And Margaret, if I may, just — I apologize. Just for the record, I want to be clear that — that in invoking his rights and my allowing my client to invoke his rights, that should not be interpreted as an admission that the — I mean, you’ll argue whatever it is, if you do, that the allegations, which are just allegations in the indictment, are accurate.

In addition to those curious objections, there were several things alleged in the indictment that Joffe outright denied. In several questions, Joffe challenged the meaning of an email Durham has used to suggest he anticipated, and wanted, a top cybersecurity job within a hypothetical Hillary Administration. After objecting to the form of the way the Alfa Bank’s Skadden lawyer tried to corner Joffe into answering the question, Tyrrell answered,

You know, again, our position on this is Mr. Joffe is happy to answer the question that was posed about whether he was ever offered the top cybersecurity job by the Democrats when it looked like they’d win. I think he’s answered that question.

He’s not going to answer questions about communications that he may or may not have had with other people about the topic. And as to those, he would invoke his rights under the Fifth Amendment.

Joffe answered no to three questions about whether the Clinton campaign paid him for his work on the server allegations, a false claim that Kash Patel spread.  Joffe also distinguished his concern about Donald Trump from a political desire to see him lose.

I’ve never been interested in politics. I’ve never been involved in politics. I haven’t voted for many, many years. I haven’t donated to any parties or any — or given any kind of benefit to any parties, but I certainly over the last few years have had an interest in the politics of the country that I live in.

That explanation premised two invocations of his Fifth Amendment in response to questions about Trump specifically.

In other words, Joffe’s Alfa Bank deposition on February 11 undermined several of the premises of the Durham investigation, while it identified several areas where his lawyer suggested Alfa’s assumptions were wrong (in the hearing on Laura Seago’s deposition, there was a central Alfa Bank assumption I know to be badly wrong).

Joffe’s deposition ended at 2:07PM ET on February 11.

Nine hours later, at 11:32PM, Durham submitted the belated conflicts motion — which would have been filed in September if Durham really had concerns about any conflict — and floated a number of claims about Joffe, claims that went beyond those in the indictment. Joffe is mentioned twenty times, including the following:

The defendant’s billing records reflect that the defendant repeatedly billed the Clinton Campaign for his work on the Russian Bank-1 allegations. In compiling and disseminating these allegations, the defendant and Tech Executive-1 also had met and communicated with another law partner at Law Firm-1 who was then serving as General Counsel to the Clinton Campaign (“Campaign Lawyer-1”).

The Indictment also alleges that, beginning in approximately July 2016, Tech Executive-1 had worked with the defendant, a U.S. investigative firm retained by Law Firm-1 on behalf of the Clinton Campaign, numerous cyber researchers, and employees at multiple Internet companies to assemble the purported data and white papers. In connection with these efforts, Tech Executive-1 exploited his access to non-public and/or proprietary Internet data. Tech Executive-1 also enlisted the assistance of researchers at a U.S.-based university who were receiving and analyzing large amounts of Internet data in connection with a pending federal government cybersecurity research contract. Tech Executive-1 tasked these researchers to mine Internet data to establish “an inference” and “narrative” tying then-candidate Trump to Russia. In doing so, Tech Executive-1 indicated that he was seeking to please certain “VIPs,” referring to individuals at Law Firm-1 and the Clinton Campaign.

The Government’s evidence at trial will also establish that among the Internet data Tech Executive-1 and his associates exploited was domain name system (“DNS”) Internet traffic pertaining to (i) a particular healthcare provider, (ii) Trump Tower, (iii) Donald Trump’s Central Park West apartment building, and (iv) the Executive Office of the President of the United States (“EOP”). (Tech Executive-1’s employer, Internet Company-1, had come to access and maintain dedicated servers for the EOP as part of a sensitive arrangement whereby it provided DNS resolution services to the EOP. Tech Executive-1 and his associates exploited this arrangement by mining the EOP’s DNS traffic and other data for the purpose of gathering derogatory information about Donald Trump.)

The Indictment further details that on February 9, 2017, the defendant provided an updated set of allegations – including the Russian Bank-1 data and additional allegations relating to Trump – to a second agency of the U.S. government (“Agency-2”). The Government’s evidence at trial will establish that these additional allegations relied, in part, on the purported DNS traffic that Tech Executive-1 and others had assembled pertaining to Trump Tower, Donald Trump’s New York City apartment building, the EOP, and the aforementioned healthcare provider. In his meeting with Agency-2, the defendant provided data which he claimed reflected purportedly suspicious DNS lookups by these entities of internet protocol (“IP”) addresses affiliated with a Russian mobile phone provider (“Russian Phone Provider-1”). The defendant further claimed that these lookups demonstrated that Trump and/or his associates were using supposedly rare, Russian-made wireless phones in the vicinity of the White House and other locations. The Special Counsel’s Office has identified no support for these allegations. Indeed, more complete DNS data that the Special Counsel’s Office obtained from a company that assisted Tech Executive-1 in assembling these allegations reflects that such DNS lookups were far from rare in the United States. For example, the more complete data that Tech Executive-1 and his associates gathered – but did not provide to Agency-2 – reflected that between approximately 2014 and 2017, there were a total of more than 3 million lookups of Russian Phone-Provider-1 IP addresses that originated with U.S.-based IP addresses. Fewer than 1,000 of these lookups originated with IP addresses affiliated with Trump Tower. In addition, the more complete data assembled by Tech Executive-1 and his associates reflected that DNS lookups involving the EOP and Russian Phone Provider-1 began at least as early 2014 (i.e., during the Obama administration and years before Trump took office) – another fact which the allegations omitted.

As I noted, less than a day after Durham filed that motion, the former President suggested that Joffe had been spying and should be killed. In response to the furor, Joffe’s spox later issued a statement clarifying what went on — precisely the information he had tried to plead the Fifth over.

In a statement, a spokesperson for Mr. Joffe said that “contrary to the allegations in this recent filing,” he was apolitical, did not work for any political party, and had lawful access under a contract to work with others to analyze DNS data — including from the White House — for the purpose of hunting for security breaches or threats.

After Russians hacked networks for the White House and Democrats in 2015 and 2016, it went on, the cybersecurity researchers were “deeply concerned” to find data suggesting Russian-made YotaPhones were in proximity to the Trump campaign and the White House, so “prepared a report of their findings, which was subsequently shared with the C.I.A.”

And some of the other researchers had to provide more details to push back on the frenzy (including that the data from EOP preceded Trump’s inauguration). Few outlets, though, have presented the basic innumeracy in Durham’s filing about the rarity of YotaPhones as anything but a contested issue.

And after Durham incited claims that Joffe should be killed, one week later Alfa Bank then affirmed the tie between Joffe and Tech Executive 1 by posting his deposition in their motion to get another four months to conduct their fishing expedition. That has had the effect of further inflaming the frothy right, and providing Durham sworn testimony from Joffe that he was otherwise not entitled to (including several warnings about how his case against Sussmann may be vulnerable).

In the wake of the release of the Florida filing, Joffe’s lawyers intervened in the Sussmann case and then filed a separate sealed motion to strike the (misleading) references to Joffe in the filing.

A Trump appointed judge in DC believes these efforts look like they’re being written by the same people. Whether Durham’s sources and a sanctioned Russian Bank’s sources are “colluding,” these parallel developments had the effect of depriving Joffe of his ability to fully invoke the Fifth Amendment. And with the help of a sanctioned Russian bank, it gave Durham a substantial benefit in a criminal investigation.

Timeline

January 25: Durham asks to extend discovery deadline

January 28: Durham admits that Durham was informed about the James Baker phone he claimed to forget knowing about

February 9: Michael Sussmann succeeds in staying Alfa Bank’s effort to get documents from him

February 10: Fusion GPS’ Laura Seago attempts to quash a subpoena

February 11, 9:30AM: Rodney Joffe deposition

February 11, 11:32PM: Durham files a motion purporting to be a conflicts motion that misrepresents the evidence

February 14: Sussmann asks to strike unsupported allegations in conflicts motion

February 14: Peter Fritsch deposition

February 17: Sussmann moves to dismiss the case, arguing his alleged lie would not be material

February 17: Durham claims that the close associates of the investigation that lied about what the conflicts motion said have nothing to do with the Durham team

February 18: Alfa Bank requests another extension to keep looking for John Does in FL

February 24: Rodney Joffe’s lawyers file notices of appearance in the Sussmann docket

February 25: Judge Christopher Cooper schedules a hearing on the conflicts motion for March 7

February 28: Joffe files a sealed motion to expunge the references to Tech Executive-1

March 1: Judge Cooper sets a Friday deadline for the government to respond to Joffe’s motion

March 7: Hearing scheduled to address conflicts memo

Two Trajectories: Sleazy Influence Peddler Paul Manafort and Foreign Agent Prosecutor Brandon Van Grack

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Like many, while I expected TS Ellis to give Paul Manafort a light sentence, I’m shocked by just how light it was.

Ellis gave Manafort 47 months of prison time for crimes that the sentencing guidelines say should start at a 19 year sentence. Even if Amy Berman Jackson gives Manafort the stiffest sentence she can give him — 10 years — and makes it consecutive, he’ll still be facing less than the what sentencing guidelines recommend. Ellis even declined to fine Manafort beyond the $24 million he’ll have to pay in restitution (Zoe Tillman lays out the money issues here).

There are a number of reasons to be outraged by this.

Ellis explicitly suggested that Manafort’s crimes were less serious than similar organized crime that people of color would commit. In the wake of this sentence, any number of people (especially defense attorneys) have pointed to non-violent criminals facing more prison time than Manafort. That said, I agree with those who suggest we should aim to bring those other sentences down in line with what the civilized world imposes, and not instead bump white collar criminals up to the barbaric levels that come out of the drug war.

Ellis gave this sentence even though Manafort expressed no remorse. Ellis commented that “I was surprised that I did not hear you express regret for engaging in wrongful conduct. In other words, you didn’t say, ‘I really, really regret not doing what the law requires,'” but nevertheless sentenced him as if he had.

Perhaps most infuriating were the backflips Ellis did to spin Paul Manafort as a good man. He emphasized that Manafort was “not before the court for any allegation that he or anybody at his direction colluded with the Russian government to influence the 2016 presidential election,” which is true; but Ellis received the breach determination materials showing that at a time when Manafort was purportedly cooperating, he instead lied about sharing polling data with a suspected Russian asset while discussing a Ukrainian peace deal that he knew amounted to sanctions relief, a quid pro quo. Because those materials go to the issue of whether Manafort took responsibility and was a risk for recidivism, they were fair game for consideration, but Ellis didn’t consider them.

Indeed, because of time served, Ellis effectively sentenced Manafort to an equivalent sentence that Michael Cohen faces having committed an order of magnitude less financial fraud, pled guilty, and provided limited cooperation to the government. Effectively, then, Ellis has sanctioned Manafort’s successful effort to avoid cooperating in the case in chief, on how he and Trump conspired with Russia to exploit our democratic process.

Instead of referring to the materials on Manafort’s refusal to cooperate, Ellis instead just regurgitated defense materials and claimed that aside from stealing millions of dollars from taxpayers and whatever else went on before Amy Berman Jackson, Manafort had “lived an otherwise blameless life.”

And that’s where I step away from a generalized discussion of the barbaric nature of our criminal justice system to look specifically at the barbaric nature of what Paul Manafort has done with his life. I feel much the way Franklin Foer does.

In an otherwise blameless life, Paul Manafort lobbied on behalf of the tobacco industry and wangled millions in tax breaks for corporations.

In an otherwise blameless life, he helped Philippine President Ferdinand Marcos bolster his image in Washington after he assassinated his primary political opponent.

In an otherwise blameless life, he worked to keep arms flowing to the Angolan generalissimo Jonas Savimbi, a monstrous leader bankrolled by the apartheid government in South Africa. While Manafort helped portray his client as an anti-communist “freedom fighter,” Savimbi’s army planted millions of land mines in peasant fields, resulting in 15,000 amputees.

[snip]

In an otherwise blameless life, he spent a decade as the chief political adviser to a clique of former gangsters in Ukraine. This clique hoped to capture control of the state so that it could enrich itself with government contracts and privatization agreements. This was a group closely allied with the Kremlin, and Manafort masterminded its rise to power—thereby enabling Ukraine’s slide into Vladimir Putin’s orbit.

[snip]

In an otherwise blameless life, he produced a public-relations campaign to convince Washington that Ukrainian President Viktor Yanukovych was acting within his democratic rights and duties when he imprisoned his most compelling rival for power.

In an otherwise blameless life, he stood mute as Yanukovych’s police killed 130 protesters in the Maidan.

Paul Manafort invented the profession of sleazy influence peddler. His own daughter once acknowledged, “Don’t fool yourself. That money we have is blood money.” And our democracy, as well as more corrupt regimes around the globe where Manafort was happy to work, are much less just because of Manafort’s life’s work.

Which is why I take more solace in something that happened the night before Manafort’s sentencing: A CNN report that DOJ has put Brandon Van Grack — a prosecutor who, under Mueller, prosecuted Mike Flynn and his sleazy influence peddler business partners — in charge of a renewed effort to crack down on unregistered sleazy influence peddlers.

The initiative at the Justice Department to pursue violations of the Foreign Agents Registration Act, which requires that an entity representing a foreign political party or government file public reports detailing the relationship, will be overseen by Brandon Van Grack, who left Mueller’s team in recent months to rejoin the national security division.

Van Grack’s appointment to the newly created position and the Justice Department’s interest in expanding its pursuit of foreign influence cases stemmed largely from the impact of Russian operations on the 2016 presidential election, John Demers, the head of the national security division, said Wednesday at a conference on white-collar crime.

With Van Grack’s new role, the Justice Department will shift “from treating FARA as an administrative obligation and regulatory obligation to one that is increasingly an enforcement priority,” Demers said.

He also pointed to the impact of a recent settlement with one of the country’s highest-profile law firms — Skadden, Arps, Slate, Meagher & Flom LLP — on the department’s decision to escalate its enforcement in that area.

[snip]

Demers added that the Justice Department is considering seeking congressional authorization for administrative subpoena power to enforce the Foreign Agents Registration Act, which it currently lacks.

“That’s something that we’re taking a hard look at,” he said. Referencing Skadden, he added: “Do I think the firm would have behaved differently if they had received a subpoena versus they had just received a letter? Yes.”

This marks a decision to treat FARA violations — sleazy influence peddling that hides the ultimate foreign customer — as a real risk to our country. As I have laid out in my comparison of Manafort’s “otherwise blameless life” and Maria Butina’s efforts to infiltrate right wing politics, a venal insider with an already rich political network will be far more effective (and insidious) than even a beautiful woman backed by a mobbed up foreign government official and abetted by her own washed out Republican insider.

I don’t know what Mueller is doing with all the evidence of a conspiracy that he continues to protect. I don’t know that he’ll be able to deliver a prosecutorial conclusion that will deliver justice for the sleazy things that Trump did to win the election. Prosecuting very powerful people is very difficult, and we shouldn’t forget that.

But one other point of this entire investigative process was to learn lessons, to make it harder for hostile outsiders to hijack our democratic process going forward.

In letting Manafort off with a metaphorical wrist-slap, TS Ellis did nothing to deter others who, like Manafort, will sell out our country for an ostrich skin jacket. Even ABJ will face some difficult challenges in DC when she tries to sentence FARA crimes (particularly those of Sam Patten, who cooperated) without precedents to do so.

But the way to build those precedents — the way to establish a record that causes a Skadden Arps or a Rob Kelner to treat FARA registration as the official declaration to the government that it is — is to pursue more of these cases, against sleazy influence peddlers working for all foreign entities, not just the ones we despise.

So Manafort may get off easy for helping Russia interfere in our election in a bid to line up his next gig white-washing brutal oligarchs.

But along the way, our justice system may be adapting to the certainty that he did not live an otherwise blameless life

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 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.

Bannon Aims to Best Jared Kushner’s Biggest Mistake in Modern Political History

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Back in September, Steve Bannon agreed on 60 Minutes that firing Jim Comey was the stupidest decision in modern political history.

In a “60 Minutes” interview that was posted online Sunday night, Bannon was asked whether he considered Comey’s dismissal — which ignited a political firestorm and directly led to the appointment of a special counsel to investigate Russian meddling in the 2016 election, including potential ties to Trump’s campaign — the biggest mistake in political history.

Bannon responded, “That would be probably — that probably would be too bombastic even for me, but maybe modern political history.

“He went on to acknowledge that if Comey had not been let go, it’s unlikely that the probe led by special counsel Robert Mueller would have been established.

“I don’t think there’s any doubt that if James Comey had not been fired, we would not have a special counsel, yes,” he said. “We would not have the Mueller investigation. We would not have the Mueller investigation and the breadth that clearly Mr. Mueller is going for.”

At that time, Bannon insisted that he faced no risk from even the expanded Mueller investigation, and hadn’t even lawyered up.

All that changed, of course, after he ran his mouth to Michael Wolff. Bannon claimed to be offended by the June 9, 2016 Trump Tower meeting. In his apology he would even say the entire meeting offended his life’s work making movies about fighting “the evil empire.”

“My comments about the meeting with Russian nationals came from my life experiences as a Naval officer stationed aboard a destroyer whose main mission was to hunt Soviet submarines to my time at the Pentagon during the Reagan years when our focus was the defeat of ‘the evil empire’ and to making films about Reagan’s war against the Soviets and Hillary Clinton’s involvement in selling uranium to them.”

But what really irked Bannon is that when Don Jr, Paul Manafort, and Jared Kushner met with Russians in an effort to obtain dirt on Hillary Clinton, they didn’t use lawyers as cutouts.

“The chance that Don Jr. did not walk these jumos up to his father’s office on the twenty-sixth floor is zero,” said an astonished and derisive Bannon, not long after the meeting was revealed.

“The three senior guys in the campaign,” an incredulous Bannon went on, “thought it was a good idea to meet with a foreign government inside Trump Tower in the conference room on the twenty-fifth floor—with no lawyers. They didn’t have any lawyers. Even if you thought that this was not treasonous, or unpatriotic, or bad shit, and I happen to think it’s all of that, you should have called the FBI immediately. Even if you didn’t think to do that, and you’re totally amoral, and you wanted that information, you do it in a Holiday Inn in Manchester, New Hampshire, with your lawyers who meet with these people and go through everything and then they verbally come and tell another lawyer in a cut-out, and if you’ve got something, then you figure out how to dump it down to Breitbart or something like that, or maybe some other more legitimate publication. You never see it, you never know it, because you don’t need to. . . . But that’s the brain trust that they had.”

On Monday, the home, hotel, and office of the lawyer Trump has long used as such a cutout, Michael Cohen, got raided. Among the things the FBI sought — in addition to information on Cohen’s own corrupt business — were communications Trump and that lawyer and others had about the 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. [my emphasis]

Bannon — and Marc Kasowitz, who sent a lawyer to meet with Trump in the wake of news of the raid — was probably among those associates. After all, Bannon also told Wolff that he and Kasowitz had to deal with a number of “near-death problems on the campaign” pertaining to women — like Stormy Daniels and Karen McDougal — making legal threats against Trump.

Unable to hire prestige talent, Bannon turned to one of the president’s longtime hit-man lawyers, Marc Kasowitz. Bannon had previously bonded with Kasowitz when the attorney had handled a series of near-death problems on the campaign, including dealing with a vast number of allegations and legal threats from an ever growing list of women accusing Trump of molesting and harassing them.

Now, Steve Bannon, the guy who claimed firing Jim Comey was the stupidest recent political decision, the guy who wasn’t so much opposed to political rat-fucking as he was opposed to doing it without using lawyers as a cutout, is shopping a new plan to get Trump out of his legal woes: fire Rod Rosenstein.

Stephen K. Bannon, who was ousted as White House chief strategist last summer but has remained in touch with some members of President Trump’s circle, is pitching a plan to West Wing aides and congressional allies to cripple the federal probe into Russian interference in the 2016 election, according to four people familiar with the discussions.

The first step, these people say, would be for Trump to fire Deputy Attorney General Rod J. Rosenstein, who oversees the work of special counsel Robert S. Mueller III and in recent days signed off on a search warrant of Trump’s longtime personal lawyer, Michael Cohen.

Bannon also wants to fire Ty Cobb, one of Trump’s remaining semi-legit lawyers, as part of an effort to invalidate all the testimony from White House officials — including himself!!!! — based on the claim it should have been covered by executive privilege.

And he is telling associates inside and outside the administration that the president should create a new legal battleground to protect himself from the investigation by asserting executive privilege — and arguing that Mueller’s interviews with White House officials over the past year should now be null and void.

“The president wasn’t fully briefed by his lawyers on the implications” of not invoking executive privilege, Bannon told The Washington Post in an interview Wednesday. “It was a strategic mistake to turn over everything without due process, and executive privilege should be exerted immediately and retroactively.”

[snip]

Bannon believes Trump can argue he was given poor counsel by his lawyers on Russia, including Ty Cobb, who has encouraged a cooperative approach to Mueller’s team.

“Ty Cobb should be fired immediately,” Bannon said.

I’m agnostic about whether the Access Hollywood video actually relates to the Russian investigation. If it does, the only conceivable reason to refer it to Southern District of NY would be to establish a clean team — but Mueller’s team has already handled interactions with investigations involving two lawyers and/or legal teams, Melissa Laurenza (who testified that Manafort led her to lie on FARA forms), and Skadden Arps. I do think it possible — highly likely, actually — that Cohen may have been used as a cutout in some hotel room in New England to cover-up other sensitive issues.

But given Bannon’s response, the investigation into Cohen’s cover-up of Trump’s problems with women — including both the Access Hollywood tape and the legal negotiations with Daniels and McDougal — probably implicates Bannon as well as Cohen.

And so Bannon wants to do what Kushner did when he, similarly, realized how much a legal investigation jeopardized him personally: fire the guy running the investigation.

Indeed, Bannon seems so panicked he can’t even remember that such moves rank among the stupidest in modern political history.

Update: One more thing about the Stormy/McDougal/Access investigation. That may come directly out of Bannon’s own testimony, which would explain why he’d want to try to invalidate it.

The Silent Cast of Characters in the Very Noisy Recent Mueller Moves

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A fuck-ton has happened in the Mueller investigation already this month. Amid the noisy pleas and indictments, we’ve seen indications of hidden cooperation from a range of people, cooperation that may point to where Mueller’s next steps are.

Here, arranged by the date of the development, are hints at who either was or soon is likely to be talking to Mueller’s team.

February 1: In a proffer to Mueller’s team, Rick Gates lied about a March 19, 2013 meeting with Paul Manafort, Vin Weber, and Dana Rohrabacher.

Rohrabacher’s statement in response to the guilty plea is inconsistent with the version laid out in the plea, suggesting he’s not the means by which Mueller’s team learned it was a lie.

After the guilty plea on Friday, a spokesman for Rohrabacher, who has sought better relations with Russia, said: “As the congressman has acknowledged before, the meeting was a dinner with two longtime acquaintances –- Manafort and Weber –- from back in his White House and early congressional days.”

“The three reminisced and talked mostly about politics,” the spokesman said. “The subject of Ukraine came up in passing. It is no secret that Manafort represented Viktor Yanukovych’s interests, but as chairman of the relevant European subcommittee, the congressman has listened to all points of view on Ukraine.”

This suggests someone else provided the version of the meeting the government included in the plea. While it’s possible the other version came from Gates’ former lawyers, it’s more likely the version came from someone else. Vin Weber is the most likely source of that information.

Back in August 2016, as news of the secret ledger was breaking,Weber suggested he may have been misled by Manafort, both as to the purpose of his lobbying and regarding the need to register as a foreign agent for Ukraine. If he felt that way in August 2016, I imagine he came to feel that even more strongly as Manafort’s legal woes intensified.

February 9: Returning a call from John Kelly but speaking to Don McGahn, Rod Rosenstein spoke of “important new information” about Jared Kushner that will delay his clearance.

Given all the evidence that suggests Jared faces very significant exposure in this investigation, this new information could be any number of things. But two possibilities are likely. First, it might reflect Jared’s January 3 disclosure of additional business interests in yet another update to his SF-86, or his family’s increasing debt over the last year.

More likely, it reflects things the government has learned from Mike Flynn (who has an incentive to burn Jared, given that the President’s son-in-law was asked for and didn’t provide exonerating information tied to Flynn’s own lies to the FBI). Indeed, that seems to be one theory of those who reported on this phone call.

Kushner’s actions during the transition have been referenced in the guilty plea of former Trump national security adviser Michael Flynn, who admitted he lied to the FBI about contacts with then-Russian Ambassador Sergey Kislyak. Prosecutors said Flynn was acting in consultation with a senior Trump transition official, whom people familiar with the matter have identified as Kushner.

All that said, there are two more possibilities. Given that she appears to have lied to the Senate Foreign Relations Committee in her confirmation process, KT McFarland would be an obvious follow-up interview after the Mike Flynn plea; she asked Trump to withdraw her nomination to be Ambassador to Singapore on February 3. And February 9 might be (though probably isn’t, quite) late enough to catch the first sessions of Steve Bannon’s 20 hours of interviews with Mueller, and Bannon has long had it in for Jared.

February 14: Alex Van der Zwaan got caught and pled guilty to lying about communications he had with Rick Gates, Konstantin Kilimnik, and Greg Craig in September 2016. On top of whatever he had to say to prosecutors between his second interview on December 1 and his plea on February 14, both Craig and Skadden Arps have surely provided a great deal of cooperation before and since September 2016. (As I was finishing this, NYT posted this story that details some, but not all, of that cooperation.)

February 16: As I noted in my post on the Internet Research Agency indictment, Rod Rosenstein was quite clear: “There is no allegation in the indictment that any American was a knowing participant in the alleged unlawful activity.” That said, there are three (presumed) Americans who, both the indictment and subsequent reporting make clear, are treated differently in the indictment than all the other Americans cited as innocent people duped by Russians: Campaign Official 1, Campaign Official 2, and Campaign Official 3. We know, from CNN’s coverage of Harry Miller’s role in building a cage to be used in a fake “jailed Hillary” stunt, that at least some other people described in the indictment were interviewed — in his case, for six hours! — by the FBI. But no one else is named using the convention to indicate those not indicted but perhaps more involved in the operation. Furthermore, the indictment doesn’t actually describe what action (if any) these three Trump campaign officials took after being contacted by trolls emailing under false names.

On approximately the same day, Defendants and their co-conspirators used the email address of a false U.S. persona, [email protected], to send an email to Campaign Official 1 at that donaldtrump.com email account, which read in part:

Hello [Campaign Official 1], [w]e are organizing a state-wide event in Florida on August, 20 to support Mr. Trump. Let us introduce ourselves first. “Being Patriotic” is a grassroots conservative online movement trying to unite people offline. . . . [W]e gained a huge lot of followers and decided to somehow help Mr. Trump get elected. You know, simple yelling on the Internet is not enough. There should be real action. We organized rallies in New York before. Now we’re focusing on purple states such as Florida.

The email also identified thirteen “confirmed locations” in Florida for the rallies and requested the campaign provide “assistance in each location.”

[snip]

Defendants and their co-conspirators used the false U.S. persona [email protected] account to send an email to Campaign Official 2 at that donaldtrump.com email account.

[snip]

On or about August 20, 2016, Defendants and their co-conspirators used the “Matt Skiber” Facebook account to contact Campaign Official 3.

Again, the DOJ convention of naming makes it clear these people have not been charged with anything. But we know from other Mueller indictments that those specifically named (which include the slew of Trump campaign officials named in the George Papadopoulos plea, KT McFarland and Jared Kushner in the Flynn plea, Kilimnik in the Van der Zwaan plea, and the various companies and foreign leaders that did Manafort’s bidding, including the Podesta Group and Mercury Public Affairs in his indictment) may be the next step in the investigation. As a reminder: Florida Republicans are those who most tangibly can be shown to have benefitted from Russia’s hack-and-leak, given that Guccifer 2.0 leaked a slew of Democratic targeting data for the state. (In perhaps related news, this week Tom Rooney became the third Florida Republican member of Congress to announce his retirement this cycle, which is all the more interesting given that he’s been involved in the HPSCI investigation into Russian tampering.)

February 23: Manafort’s superseding indictment (a version of which was originally filed February 16) added the description of the Hapsburg Group for former European officials who lobbied at the direction (to some degree via cut-outs) of Manafort.

MANAFORT explained in an “EYES ONLY” memorandum created in or about June 2012 that the purpose of the “SUPER VIP” effort would be to “assemble a small group of high-level European highly influencial [sic] champions and politically credible friends who can act informally and without any visible relationship with the Government of Ukraine.” The group was managed by a former European Chancellor, Foreign Politician A, in coordination with MANAFORT.

It may be that the government only recently obtained this document (meaning it was not among the 590,000 pages of documents obtained and turned over to Manafort in discovery thus far). But it’s likely this also reflects further testimony. Former Austrian Chancellor Alfred Gusenbauer denied he is Foreign Politician A to BBC, though that may be a non-denial denial tied to his claim he wasn’t directed by Manafort and only met him a few times (this Austrian story suggests only he doesn’t remember what American or English firm paid him). NYT reported that Gusenbauer’s lobbying during the relevant time period was registered under Mercury Public Affairs. This is another piece of evidence suggesting the group — and Vin Weber personally — has been cooperating since the original indictment.

Note, I assume that Mercury/Weber’s cooperation has been mirrored by Tony Podesta’s.

Konstantin Kilimnik’s PRISM-Accessible Communications

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I doubt I’ll be done working my way through the new Paul Manafort and Rick Gates charges before such analysis would be overtaken by events (like the on-again flip of Gates). For now, Quinta Jurecic’s analysis is quite good.

Before I start, though, I want to go back and look at a detail from the Alex van der Zwaan plea materials (information, plea, statement of offense).

Best as we understand, former Skadden associate van der Zwaan pled guilty, with no forward cooperation requirement, for having hidden some communications he had with Rick Gates, Greg Craig (who must be the senior partner described), and Konstantin Kilimnik (believed to be Person A) in September 2016 about the aftermath of a report Skadden had done on the prosecution of Yulia Tymoshenko.

In or about September 2016, VAN DER ZWAAN spoke with both Gates and Person A regarding the Report. In early September 2016, Gates called VAN DER ZWAAN and told him to contact Person A. After the call, Gates sent VAN DER ZWAAN documents including a preliminary criminal complaint in Ukraine via an electronic application called Viber. VAN DER ZWAAN then called Person A and discussed in Russian that formal criminal charges might be brought against a former Ukrainian Minister of Justice, Law Firm A, and Manafort. VAN DER ZWAAN recorded the call. VAN DER ZWAAN then called the senior partner on the Report at Law Firm A and partially recorded that call. Finally, VAN DER ZWAAN called Gates and recorded the call. VAN DER ZWAAN also took notes of the calls.

Prior to the November 3, 2017, interview, VAN DER ZWAAN did not produce to Law Firm A and deleted and otherwise did not produce emails he possessed that he understood had been requested by either the Special Counsel’s Office or Law Firm A, or both, including an email in Russian dated September 12, 2016 in which Person A asked VAN DER ZWAAN to contact Person A and to use an encrypted application.

One thing Van der Zwaan would have hidden was that he communicated with Gates after Paul Manafort had left the campaign, September 2016, as the Trump campaign was trying to clean up their taint from Manafort’s Ukraine stench.

Given the details in the information, it appears that in his November 3, 2017 interview, after he lied about when he had most recently talked with Kilimnik and Gates, he was asked about the email he didn’t turn over to Skadden and the government.

During the November 3, 2017, interview, VAN DER ZWAAN knowingly and intentionally falsely stated the following:

a. his last communication with Gates was in mid-August 2016, which consisted of an innocuous text message;

b. his last communication with a longtime business associate of Manafort and Gates in Ukraine (Person A) was in 2014, when he talked with Person A about Person A’s family; and

c. he did not know why Law Firm A had not produced to the Special Counsel’s Office a September 2016 e-mail between him and Person A.

This seems to suggest that before the end of Van der Zwaan’s first interview, they already confronted him with the fact that he was lying.

But that wasn’t his only interview. Van der Zwaan had a second interview (where he apparently added to his lies) on December 1. (NYCSouthpaw made this observation.)

I’ll probably return to the second interview.

For now, what I’m primarily interested in is that on November 3, 2017, the government had the email between Van der Zwaan and Kilimnik where the latter told the former to move their conversation to an (unnamed) encrypted app, and by the end of the interview confronted him with that fact.

I previously noted (with surprise) that Kilimnik used Gmail for his November 2017 correspondence with Paul Manafort helping to edit an op-ed to push back against his charges. If Manafort didn’t already know the Feds had obtained a bunch of Gmail (and — as  yesterday’s superseding indictment makes clear, his own firm’s email), a sealed December 8 declaration that was unsealed on January 3 would have made that clear.

It continues to surprise me that these thugs never thought about how accessible PRISM-based communications were to the Feds, unless Kilimnik has reason to be happy that his American correspondents will be seen by the FBI.

I guess it’s not just Hope Hicks who underestimates how accessible email is to criminal investigators.