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On the Potential Viability of Foreign Agent Charges for Rudy Giuliani

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Since the NYT revealed that SDNY is investigating Rudy Giuliani for what they call “lobbying” laws,

Mr. Lutsenko initially asked Mr. Giuliani to represent him, according to the former mayor, who said he declined because it would have posed a conflict with his work for the president. Instead, Mr. Giuliani said, he interviewed Mr. Lutsenko for hours, then had one of his employees — a “professional investigator who works for my company” — write memos detailing the Ukrainian prosecutors’ claims about Ms. Yovanovitch, Mr. Biden and others.

Mr. Giuliani said he provided those memos to Secretary of State Mike Pompeo this year and was told that the State Department passed the memos to the F.B.I. He did not say who told him.

Mr. Giuliani said he also gave the memos to the columnist, John Solomon, who worked at the time for The Hill newspaper and published articles and videos critical of Ms. Yovanovitch, the Bidens and other Trump targets. It was unclear to what degree Mr. Giuliani’s memos served as fodder for Mr. Solomon, who independently interviewed Mr. Lutsenko and other sources.

Mr. Solomon did not immediately respond to a request for comment.

The lobbying disclosure law contains an exemption for legal work, and Mr. Giuliani said his efforts to unearth information and push both for investigations in Ukraine and for news coverage of his findings originated with his defense of Mr. Trump in the special counsel’s investigation.

He acknowledged that his work morphed into a more general dragnet for dirt on Mr. Trump’s targets but said that it was difficult to separate those lines of inquiry from his original mission of discrediting the origins of the special counsel’s investigation.

Mr. Giuliani said Mr. Lutsenko never specifically asked him to try to force Ms. Yovanovitch’s recall, saying he concluded himself that Mr. Lutsenko probably wanted her fired because he had complained that she was stifling his investigations.

“He didn’t say to me, ‘I came here to get Yovanovitch fired.’ He came here because he said he had been trying to transmit this information to your government for the past year, and had been unable to do it,” Mr. Giuliani said of his meeting in New York with Mr. Lutsenko. “I transmitted the information to the right people.”

And since the WSJ reported that Pete Sessions — named as Congressman 1 in the Lev Parnas/Igor Fruman indictment — was cooperating with a grand jury subpoena targeting Rudy,

A grand jury has issued a subpoena related to Manhattan federal prosecutors’ investigation into Rudy Giuliani, seeking documents from former Rep. Pete Sessions about his dealings with President Trump’s personal lawyer and associates, according to people familiar with the matter.

The subpoena seeks documents related to Mr. Giuliani’s business dealings with Ukraine and his involvement in efforts to oust the U.S. ambassador in Kyiv, as well as any interactions between Mr. Sessions, Mr. Giuliani and four men who were indicted last week on campaign-finance and conspiracy accounts, the people said.

Mr. Sessions’ knowledge of Mr. Giuliani’s dealings is a primary focus of the subpoena, the people said.

There has been a closer review of whether it would be possible to indict the President’s personal lawyer under foreign agent laws, with broad consensus that what Rudy is doing is actually covered by FARA — and not just his work for Ukraine, but also (among other places) for Turkey.

But there have been a number of claims that, I think, have been too pat about how easy or hard this is going to be.

Greg Craig, Tony Podesta, Vin Weber, and Bijan Kian are not apt precedents

First, a number of people have looked at how SDNY considered — but did not charge — Greg Craig, Tony Podesta, and Vin Weber under FARA, suggesting the same considerations would hold true with Rudy. Others have looked at Greg Craig (who was prosecuted but acquitted in DC for FARA after SDNY decided not to charge it) and Bijan Kian (who was convicted but then had his conviction thrown out by Judge Anthony Trenga based on the legal theory DOJ used) to suggest these cases are too difficult to charge to get Rudy.

It is absolutely the case that when powerful men with skilled lawyers have been pursued under FARA in recent years, DOJ has succeeded not in trial, but instead has gotten either plea deals or failed at trial (and that may have been one of the facts behind Mueller’s decision to strike a plea deal with Paul Manafort). That is sound evidence that SDNY is no doubt aware of.

But several things distinguish Rudy.

Most notably, all of those earlier cases came before DOJ’s newfound commitment to prosecuting FARA, with Mike Flynn prosecutor Brandon Van Grack taking over where a woman named Heather Hunt had been in charge before. At a minimum, that means a process that originally took place with Craig, Podesta, Weber, and Kian under an assumption that FARA would be treated solely as a registration issue may now be taking place under an assumption that violations of FARA — presumably to include both a failure to register and (what most charges have been so far) false statements under registration — can be prosecuted. That assumption would dramatically change the attention with which DOJ would document their communications, so prosecutors would not now be stuck going to trial (as Craig’s prosecutors were) without having DOJ’s documentation of a key meeting.

Notably, the same thing that triggered the FARA prosecution of Mike Flynn — concerns raised by Congress — happened last year when seven Democratic Senators wrote National Security Division head John Demers asking for a review. So there may well be documentation of Rudy’s claims about whether he does or does not need to register that SDNY is building a prosecution around.

Plus, one thing clearly distinguishes Rudy from all these other men. Rudy is not taking this investigation seriously, and does not have a lawyer reviewing his exposure. From reports, he may not have the ready cash to pay the likes of Rob Kelner (Flynn’s original, very competent, lawyer) or Robert Trout (Kian’s excellent lawyer). So he may be doing things now (not least, running his mouth on TV and making public statements about who he works for and how it gets paid) that put him at greater exposure.

Rudy G’s efforts to implicate State and DOJ (and the President) in his work

That said, another thing distinguishes Rudy from these past cases. Since the whistleblower complaint got made public, he has spent most of his time insisting that everything he did, he did with the awareness and involvement of — at least — the State Department. And in Trump’s July 25 call to Volodymyr Zelensky, he invoked Bill Barr’s name right alongside his nominal defense attorney.

Both foreign agent statutes (FARA — the one being discussed for Rudy, and 18 USC 951 — another one, with more flexibility, that Kian was charged under) require registration with the Attorney General. And while telling foreigners you’re negotiating with that the Attorney General will be by soon to pick up the disinformation demanded does not fulfill the requirements for registry (in part, the point of registering is to provide a paper trail so the public can track who is paying for what), it does change things that Rudy is suggesting that his work has the imprimatur of official policy to it.

That said, the assumption that implicating powerful government figures will keep you safe is a dangerous proposition. If the easiest way to end the Ukraine inquiry is to blame Rudy for it all (and if that’s still possible after several weeks of damning testimony), that may well come to pass.

And if Bill Barr needs to greenlight a FARA prosecution of Rudy as a way to minimize the damage to the Administration, and to himself, he may well do that (yet another reason why he should have recused long ago).

That’s all the more true given that most of Trump’s aides seem to recognize how damaging Rudy is for Trump’s exposure. If Trump won’t separate himself from Rudy, his lackeys might one day decide, then separate Rudy from Trump by prosecuting him, the same way they separated Michael Cohen from Trump.

That said, with Trump, loyalty is always transactional. And if he believes Rudy has dirt that can bring him down — and given the likelihood some of what Rudy is doing is the continuation of what Paul Manafort had been doing since August 2, 2016, that may be true — then Trump will defend Rudy’s work even if it means claiming everything he did operated under Article II authority.

The additional factor: ConFraudUs

The discussions about Rudy’s exposure under FARA, however, seem not to have considered another factor: that Lev Parnas and Igor Fruman have already been charged with conspiracy in conjunction with actions Rudy had a key role in. The Ukrainian grifter indictment charges them with two counts of Conspiracy to Defraud the US for hiding what money was behind their influence campaign on Ukraine (count 1) and Nevada marijuana (count 4), as well as False Statements to the FEC (count 2) and falsification of records (count 3) tied to the Ukraine influence operation. Counts 1-3 all pertain to the Ukrainian grifters laundering of campaign funds through Global Energy Producers, a front that (SDNY alleges) they falsely claimed was “a real business enterprise funded with substantial bona fide capital investment,” the major purpose of which “is energy trading, not political activity.” Those funds went, among other places, to the Trump related Super PAC America First Action and to Congressman Sessions.

Rudy has equivocated about his relationship to the Ukrainian grifters (and claims it goes through Fraud Guarantee, not GEP). But John Dowd, writing as the grifters’ lawyer, already stated for the record that he does have ties and those ties relate to his representation of the President. That is, the grifters are working for him, even while he works for them.

That’s important because Sessions’ statements have denied any official action in response to meetings with the grifters, but he also had meetings with Rudy in the time period, official action in response to which he has not denied. In addition, Rudy (whom Sessions says he has been friends with for three decades) also headlined a fundraiser for Sessions. And on top of the straw donations the grifters gave Sessions directly, America First Action gave Sessions far more to him, $3 million, the indictment notes twice.

In other words, while Sessions has denied doing anything in response to the grifters’ meetings, he has not denied doing anything in response to Rudy’s communications with him. If he sent his letter calling for the ouster of Marie Yovanovitch in response to a request from Rudy — whose finances are inextricably tied to the grifters — then it may be fairly easy to add him to the conspiracy the (successful) object of which was to get Yovanovitch fired. The propaganda Rudy sent (as laid out by NYT, and which the State IG already sent to the FBI earlier this year) would then simply be part of the conspiracy.

A few more points. There’s a passage of the indictment included to substantiate the allegation that the grifters were affirmatively trying to hide their purpose.

Indeed, when media reports about the GEP contributions first surfaced, an individual working with PARNAS remarked, “[t]his is what happens when you become visible … the buzzards descend,” to which PARNAS responded, “[t]hat’s why we need to stay under the radar…”

The indictment doesn’t disclose a number of details about this communication: who the interlocutor is, how it was collected, and whether it involved a mere warrant (for stored communications such as email or texts) or a wiretap. But particularly given the seeming overlap between these activities and those of people we know were surveilled during the period in question, it’s a pregnant inclusion in the indictment. It suggests the Feds may already be privy to far more about this scheme and the reasons the grifters might want it suppressed. Add that to the fact that, as WSJ reported, the Feds already have Rudy’s bank records, which will show whether he really worked for Fraud Guarantee or whether that, like GEP, is just a front.

Cui bono

Finally, consider this. The indictment says that the grifters were pushing to oust Yovanovitch to benefit  particular unnamed Ukrainians’ interests.

[T]hese contributions were made for the purpose of gaining influence with politicians so as to advance their own personal financial interests and the political interests of Ukrainian government officials, including at least one Ukrainian government official with whom they were working.

[snip]

At and around the time PARNAS and FRUMAN committed to raising those funds for [Sessions], PARNAS met with [SESSIONS] and sought [his] assistance in causing the U.S. Government to remove or recall [Yovanovitch]. PARNAS’s efforts to remove the Ambassador were conducted, at least in part, at the request of one or more Ukrainian government officials.

According to NBC, the Ukrainian in question was Yurii Lutsenko. But Lutsenko has since been ousted, and he has reneged on statements elicited by Rudy implicating the Bidens. More importantly, one of the promises Zelensky made in his July 25 call to Trump was to put in his own prosecutor who would pursue the two investigations — to trump up a claim Ukraine was behind the election tampering in 2016, and to invent evidence against Hunter Biden — that Trump wanted.

The President: Good because I heard you had a prosecutor who was very good and he was shut down and that’s really unfair. A lot of people are talking about that, the way they shut your very good prosecutor down and you had some very bad people involved. Mr. Giuliani is a highly respected man. He was the mayor bf New York Ci:ty, a great mayor, and I would like him to call you. I will ask him to call you along with the Attorney General. Rudy very much knows what’s happening and he is a very capable guy. If you could speak to him that would be great. The former ambassador from the United States, the woman, was bad news and the people she was dealing with in the Ukraine were bad news so I just want to let you know that. The oteer thing, There’s a lot of talk about Biden’s son. that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the Attorney General would be great. Biden went around bragging that he stopped the prosecution so if you can look into it … It sounds horrible to me.

President Zelenskyy: I wanted to tell ·you about the prosecutor. First of all I understand arid I’m knowledgeable about the situation. Since we have won the absolute majority in our Parliament; the next prosecutor general will be 100% my person, my candidate, who will be approved, by the parliament and will start as a new prosecutor in September. He or she will look. into the situation, specifically to the company that you mentioned in this issue.

Which is what led to Lutsenko’s ouster.

Moreover, the prosecutor Biden shut down was not Lutsenko, but Viktor Shokin, who has written affidavits which then got fed to John Solomon on behalf of Dmitry Firtash, who is trying hard to avoid extradition (on bribery charges) to the US.

That — plus the financial and legal ties between Firtash and the grifters — suggests there may be other Ukrainians on whose behalf the grifters were working to get Yovanovitch withdrawn. Firtash is certainly one. A corrupt prosecutor with ties to Russian intelligence, Kostiantyn Kulyk, who had worked for all these guys — and who is behind a dossier on accusing Hunter Biden of corruption — may be another. That is, Yovanovitch may have been the impediment not to inventing dirt on the Bidens, which is a fairly easy ask, but instead on creating the pre-conditions for people like Firtash to go free (which would also explain the natural gas angle).

All of which is to say that it would be a fairly trivial matter to establish the evidence to charge Rudy in ConFraudUs along with the Ukrainian grifters, as SDNY already has a lot of the evidence it would need.

Yes, Rudy Giuliani is, by all appearances, in blatant violation of FARA. Yes, he may get away with that, in part because DOJ hasn’t yet figured out hard to charge it consistently (though knows what not to do given recent history), and in part because he has made sure to implicate Trump and his cabinet officials.

But there’s a larger question about whether those same financial ties expose Rudy for much uglier conspiracy charges.

Mueller Juggles Plea Agreement Housekeeping

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In the last two days, both Rick Gates’ and Paul Manafort’s plea deals have made news.

In Gates’ case, his lawyers have filed an unopposed motion to liberate him from his GPS device and curfew, arguing that the leverage of the plea deal itself is enough to keep him on the straight and narrow.

The plea agreement contains very serious consequences for Mr. Gates should he violate any of its terms or conditions. The advantages that attach to strict compliance with that agreement, and the extraordinary disincentives to violating that agreement, alone guarantee Mr. Gates’s appearance at any scheduled Court proceeding. Over a substantial period of time, now approaching one year, Mr. Gates has demonstrated his resolve to comply with all conditions of his release. Removing the GPS monitor and allowing Mr. Gates to travel within the Eastern District of Virginia and District of Columbia without restriction will surely not increase the risk of flight or make it less likely that Mr. Gates will appear in Court when required to do so.

The more interesting bit comes when, in a bid to talk up Gates’ cooperation, his attorneys reveal he’s been meeting with other prosecutors.

Both before the entry of the plea, and for many weeks thereafter, Mr. Gates, whenever requested, traveled to Washington, D.C., to appear at the Office of Special Counsel to be interviewed as part of his cooperation agreement. Those sessions have been numerous and they continue to this day.

[snip]

These meetings with the Office of Special Counsel continued during the weeks preceding the trial of co-defendant Paul Manafort in the United States District Court for the Eastern District of Virginia.

[snip]

Following that trial, Mr. Gates has continued to cooperate with the Special Counsel and with other federal investigators by attending current meetings at which he provides additional information. [my emphasis]

Rick Gates met in March and he met in July and he met in September, Thomas Green says. It’s the “other federal investigators” that’s of interest, as it suggests his cooperation extends beyond Mueller’s case in chief.

But that may not mean all that much. After all, Gates’ cooperation would be useful for the three cases Mueller referred to SDNY (involving Tony Podesta, Vin Weber, and Greg Craig), as well as for Stephen Calk, the Chicago banker who gave Manafort a loan in hopes of getting an appointment with the Trump Administration. Gates would surely also have information that might corroborate Sam Patten’s cooperation.

Still, it’s possible those “other federal investigators” include some of the “garden variety” Trump corruption I keep suggesting might also get spun off, such as the non-Russian Inauguration pay-to-play.

Meanwhile, in EDVA, TS Ellis is being TS Ellis. Yesterday, he filed an order saying that the parties in Manafort’s EDVA prosecution can’t just defer resolution of the ten hung counts against him until after Mueller is done with his cooperation. He scheduled a hearing for a week from Friday, on October 19, so the process of sentencing can begin. At that hearing, Ellis expects the parties to “address dismissal of the outstanding counts on which the jury deadlocked.”

Dismissing the charges may be no big deal. Manafort is on the hook for 210 – 262 months if he breaches his plea agreement in DC, before any state charges, and some of the charges that Ellis would dismiss could be charged in VA, aided by Manafort’s admission of guilt in them in the plea. As Popehat notes, cleaning up these charges is consistent with good docket management.

The push for the government to move forward on cooperation is more interesting as it may require the government to weigh in on the value of Manafort’s cooperation while he’s still discussing things with Mueller’s team. Of particular interest, any discussion on cooperation may reveal how much Manafort has cooperated against the President.

I’m also interested in timing. Manafort’s lawyers submitted their notice that they won’t challenge anything that happened in that trial right on schedule, on September 20. The government filed their response just under the week later that they had under Ellis’ schedule, on September 26. But Ellis took two weeks before he issued this hurry up and wait order, setting a hearing for October 19, at which any sentencing schedule is likely to be after Manafort’s next status hearing in DC.

In any case, it’s not clear that Ellis’ haste will help Manafort much. Even if Ellis is perturbed that Mueller used his courtroom to flip a witness against Trump, the PSR will show that Manafort is an admitted criminal in the DC charges, meaning his sentence should be harsher than it would with any kind of cooperation assistance. And prosecutors can just defer any 5K statement, and instead account for cooperation with a Rule 35 motion submitted after the fact. In any case, the plea envisions concurrent sentencing, and if Manafort does’t cooperate willingly, he’ll face 10 years in the DC plea, which is longer than Ellis is likely to have sentenced him on anyway.

So it seems like Mueller can still retain the breathtaking upper hand they have with Manafort, and defer any public statement on cooperation until later.

Spy Versus Spy: The Two Alleged Agents of Foreign Powers Sitting in the Alexandria Jail, Part One (Paulie)

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The Alexandria jail houses two alleged criminal agents of foreign influence: Paul Manafort and Mariia Butina. In the coming days, both may present interesting questions about the boundaries the US uses to define — and criminalize — foreign influence peddling. Legal questions in their prosecutions will address two questions:

  • What does it take to criminalize a failure to register as an Agent of a Foreign Principal?
  • What are the boundaries between Agent of Foreign Principals and Foreign Governments?

At issue are two laws: the Foreign Agents Registration Act, 22 USC 611 et seq., which requires certain people engaging in politics and propaganda for non-commercial foreign entities to register as their agents and to disclose the propaganda they disseminate. Mostly, FARA is a documentary requirement, but lying in the registration process can carry a five year sentence. That’s what Paul Manafort has been charged with. Butina has been charged with violating 18 USC 951, which basically criminalizes people who don’t register with DOJ (as, for example, diplomats would) when they spy for a foreign power; it carries a ten year sentence.

The problems with FARA … and distinguishing it from spying

As a DOJ Inspector General Audit completed in September 2016 laid out, people stopped complying with FARA in the 1990s, as any commercial lobbyists could register under the Lobbyist Disclosure Act more easily and FARA wasn’t rigorously enforced. The IG Report cited a bunch of reasons why FARA is not better enforced, such as that they aren’t staffed to be effective, nor do they have the investigative authorities DOJ thinks they need to figure out who’s not complying.

During our audit the FARA Unit was comprised of one Unit Chief, who is also an attorney; two staff attorneys; one Supervisory Program Manager; one Intelligence Research Specialist; one Program Specialist; and two Case Management Specialists.5 NSD staff emphasized that this is a limited staff, which is responsible for a considerable range of activities. The unit is responsible for processing and monitoring new and existing FARA registrations on an ongoing basis. This includes receiving, reviewing and processing documentation and payments, and addressing late or inaccurate submissions. The unit also performs periodic formal inspections to assess the adequacy of registrant reporting and disclosure, and conducts open source searches to identify individuals that may be obligated to register.

One of these two staff attorneys joined the FARA Unit during our audit. At the conclusion of our audit we were informed that the FARA Unit was back to one staff attorney, however the unit planned to hire a replacement.

[snip]

NSD officials stated that a major difficulty is a lack of authority to compel the production of information from persons who may be agents. As a result, NSD is currently pursuing civil investigative demand (CID) authority from Congress in order to enhance its ability to assess the need for potential agents to register.

Ultimately, however, DOJ almost never uses the teeth in the provision — prosecution — to ensure compliance.

Between 1966 and 2015 the Department only brought seven criminal FARA cases – one resulted in a conviction at trial for conspiracy to violate FARA and other statutes, two pleaded guilty to violating FARA, two others pleaded guilty to non-FARA charges, and the remaining two cases were dismissed. We were also told by NSD that the Department has not sought civil injunctive relief under FARA since 1991.

The IG Report cites two reasons why there aren’t more prosecutions. First, as the National Security Division explained, because it is so hard to get evidence of 1) willfulness, 2) that the agent is working under the “direction and control” of a foreign principal and 3) that the influence-peddling isn’t for some other (exempted) reason.

FARA contains a criminal penalty provision, and NSD approves criminal prosecution as an enforcement mechanism if there is sufficient admissible evidence of a willful violation of FARA, and the standards applicable to all federal criminal prosecutions set forth in the U.S. Attorney’s Manual are otherwise satisfied. The high burden of proving willfulness, difficulties in proving “direction and control” by a foreign principal, and exemptions available under the statute make criminal prosecution for FARA violations challenging. These challenges are compounded by the government’s current inability to compel the production of records from potential and current registrants, a situation NSD is working to remedy by proposing legislation for consideration by the Department of Justice (Department). Despite these challenges, the Department has brought four F ARA criminal cases since 2007, all of which resulted in convictions (one conviction at trial for conspiracy to violate F ARA and other statutes; two guilty pleas for violating FARA; and one guilty plea to related non-FARA charges).

The other reason why there aren’t more FARA prosecutions, per the IG Report, is because FBI agents confuse FARA (what Manafort is charged with) with 18 USC 951 (what Butin is charged with). Indeed, Agents mix the codes for the two crimes up in their filing system.

[W]hen we discussed FARA with FBI personnel, we found that they considered a “FARA case” to be a case investigated pursuant to either the FARA, 22 U.S.C. § 611, et seq., or 18 U.S.C. § 951 (Section 951), which is the federal statute that provides criminal penalties for certain agents of foreign governments who act in the United States without first notifying the Attorney General.12 Unlike Section 951, FARA requires agents of foreign principals engaged in legal political or quasi-political activities such as lobbying, government and public relations, tourism promotion, and foreign economic development activities in the United States to register and make detailed disclosures of their activities in the United States conducted on behalf of their foreign principals.13

By contrast, Section 951 was described to us by the NSD as “espionage lite” because a Section 951 case generally involves espionage-like or clandestine behavior or an otherwise provable connection to an intelligence service, or information gathering or procurement-type activity on behalf of a foreign government. Although FARA registration can serve as the required notification to the Attorney General under Section 951, NSD officials told us FARA and Section 951 involve different sets of elements and different types of issues. According to NSD officials, only 22 U.S.C. 611 et seq. constitutes a FARA case. Nevertheless, NSD officials acknowledged the differing views on what constitutes a FARA charge and are currently engaged in an ongoing effort to better educate field investigators and prosecutors on the difference.

12 According to NSD, notification under Section 951 may be made by registration under FARA in circumstances where the activity requiring notice is disclosed on the FARA registration form.

13 Political activities are defined by the statute as “any activity that the person engaging in believes will, or that the person intends to, in any way influence any agency or official of the Government of the United States or any section of the public within the United States with reference to formulating, adopting, or changing the domestic or foreign policies of the United States or with reference to the political or public interests, policies, or relations of a government of a foreign country or a foreign political party.”

Here’s how NSD described the difference.

Although OIG’s report reflects some criticism of aspects of NSD’s review of F ARA cases, NSD notes at the outset, as OlG acknowledged in the Report, that personnel interviewed in preparation of the Report frequently confused FARA (22 U.S.c. § 611 el seq) with 18 U.S.C. § 951 (“Section 951 “), a criminal statute entitled “Agents of foreign governments.” Although the two statutes have similar terms, they address different types of conduct. The typical conduct to which Section 951 applies consists of espionage-like behavior, information gathering, and procurement of technology, on behalf of foreign governments or officials. FARA, on the other hand, is designed to provide transparency regarding efforts by foreign principals (a term defined more broadly than foreign governments or officials) to influence the U.S. government or public through public speech, political activities, and lobbying. Accordingly, Section 95 1 is codified in Title 18 of the U.S. Code (designated for “Crimes and Criminal Procedure”), while FARA is codified in Title 22 (designated for “Foreign Relations”). Section 951 is aimed exclusively at criminally punishing individuals who violate its terms, and lacks a formal administrative registration regime. FARA in contrast, is predominantly a disclosure statute, under which there is an administrative registration regime, and while the Act authorizes criminal penalties for willful violations, the primary means of achieving FARA’s main purpose of transparency is through voluntary disclosure in compliance with the Act. The mistaken conflation of the two statutes can lead to undue weight being given to criminal prosecution as the measure of F ARA enforcement and insufficient recognition of the significance of administrative enforcement efforts relating to the FARA registration regime. It is therefore essential to understand the distinctions between FARA and Section 951 for purposes of this audit, the scope of which is expressly limited to the enforcement and administration of FARA.

Mueller’s two FARA pleas

Mueller actually already shifted the balance on FARA enforcement since that 2016 IG Report. Among the false statements Flynn pled guilty to is filing a false FARA filing.

On March 7, 2017, FLYNN filed multiple documents with the Department of Justice pursuant to the Foreign Agents Registration Act (“FARA”) pertaining to a project performed by him and his company, the Flynn Intel Group, Inc. (“FIG”), for the principal benefit of the Republic of Turkey (“Turkey project”). In the FARA filings, FLYNN made materially false statements and omissions, including by falsely stating that (a) FIG did not know whether or the extent to which the Republic of Turkey was involved in the Turkey project, (b) the Turkey project was focused on improving U.S. business organizations’ confidence regarding doing business in Turkey, and (c) an op-ed by FLYNN published in The Hill on November 8, 2016, was written at his own initiative; and by omitting that officials from the Republic of Turkey provided supervision and direction over the Turkey project.

And one of two conspiracy schemes (what I call ConFraudUS) to which Gates pled guilty is violating FARA.

GATES understood that it was illegal to engage in certain activities in the United States as an agent of a foreign pricipal without registering with the United States Government. Specifically, a person who engages in lobbying or public relations work in the United States (hereafter collectively referred to as lobbying) for a foreign principal such as the Government of Ukraine or the Party of Regions is required to register. Manafort, together with GATES’ assistance, engaged in a scheme to avoid this registration requirement for DMI, Manafort, and others.

These efforts — and Manafort’s prosecution — have already led to a significant increase in how many people are registering as foreign influence peddlers.

You can lose your profits if you don’t register

Particularly because Manafort’s case is so high profile, Mueller’s bid to prosecute him for FARA violations comes with high stakes and potentially high payoff — though DC District interpretations of the law. That said, the government has actually backstopped itself by charging Manafort’s sleazy influence peddling under multiple different crimes; the indictment actually uses seven different counts to hold Manafort accountable for hiding that he was an agent of a Russian-backed Ukrainian party, the Party of Regions (and its successor).

  1. ConFraudUs: Claiming Manafort prevented DOJ and Treasury from tracking his foreign influence peddling
  2. Conspiracy to Launder Money: Claiming Manafort and Gates laundered the proceeds of their Ukrainian influence-peddling
  3. FARA Violation: Claiming Manafort hid both his own lobbying for the Party of Regions and that he paid other influence peddlers to engage in
  4. Submitting a False FARA Statement: Claiming Manafort submitted a claim falsely claiming he didn’t need to register as a foreign agent
  5. False statements: Claiming he lied in his FARA filings
  6. Obstruction of justice: Claiming he tampered with witnesses associated with the Hapsburg group in an attempt to get them to lie about his failure to register as a foreign agent
  7. Conspiracy to obstruct justice: Claiming he conspired with former GRU officer Konstantin Kilimnik to tamper with witnesses

Manafort already tried and failed to narrow the application of FARA in two ways: first, by objecting to tying money laundering to FARA (and thereby tying a forfeiture to it). Second, Manafort tried to get either the false FARA statement (count 4) or the false statements (count 5) thrown as as multiplicitous. Amy Berman Jackson ruled against him on both attempts (forfeiture, multiplicitous), though the latter order basically just punted the issue until after trial.

The former is more interesting, in any case, because in her ruling ABJ took Manafort’s bid to distinguish FARA from 18 USC 951 and instead described how similar they are.

Section 951 of Title 18 states that “[w]hoever, other than a diplomatic or consular officer or attaché, acts in the United States as an agent of a foreign government without prior notification to the Attorney General” shall be fined or imprisoned for up to ten years, or both. 18 U.S.C. § 951(a). According to defendant, this statute criminalizes acting as a foreign agent, whereas FARA is merely a “regulatory scheme for foreign agent registration” that criminalizes only the willful failure to register. Def.’s Mot. at 5, quoting United States v. McGoff, 831 F.2d 1071, 1075 (D.C. Cir. 1987).

But the reference to section 951 does not support defendant’s position, since defendant acknowledges that section 951 plainly governs acting as an agent of a foreign government, and the language of the two provisions is quite similar. See Def.’s Mot. at 4–5; compare 18 U.S.C. § 951(a) (“Whoever . . . acts in the United States as an agent of a foreign government without prior notification to the Attorney General . . . shall be fined under this title or imprisoned . . . .”) with 22 U.S.C. § 612(a) (“No person shall act as an agent of a foreign principal unless he has filed with the Attorney General a true and complete registration statement . . . .”) and id. § 618(a) (imposing criminal penalties on any person who “willfully violates any provision of this subchapter or any regulation thereunder” or “willfully makes a false statement of a material fact or willfully omits any material fact” in a FARA statement). These laws are not just about paperwork; their object is to ensure that no person acts to advance the interests of a foreign government or principal within the United States unless the public has been properly notified of his or her allegiance. So both statutes expressly prohibit “acting” as a representative of a foreign entity without submitting the required notification to the Attorney General. For these reasons, the alleged international banking transactions could “promote,” and Manafort could realize “proceeds” from, a FARA violation.3

3 Defendant argues that section 951 does not bear on the issue presented here since it requires an “additional element” that FARA does not, and applies to “activities . . . under the control of a foreign government.” Def.’s Mot. at 4–5. But FARA also applies to agents of foreign governments. 22 U.S.C. § 611(b) (defining “foreign principal” to include “the government of a foreign country”). So the difference between the two provisions is that section 951 covers a narrower subset of foreign agents.

In addition to treating sleazy influence peddlers as akin to spies (albeit less serious ones) if they hide that influence peddling, ABJ’s order means that in DC, where all the sleazy influence peddlers work, a sleazy influence peddler can forfeit the money he makes off sleazy influence peddling if he doesn’t properly register to peddle influence.

Ouch.

The crime-fraud exception in FARA registration

Which brings us to one of the reasons why FARA is so hard to prosecute: the difficulty of proving willfulness. One way Mueller is getting around that is to rely on the testimony of the lawyer Manafort used to file his delayed FARA registration.

After Manafort’s influence-peddling for Ukraine became the focus of attention in 2016, the chief of the FARA unit wrote to Manafort and asked him if maybe he should have registered. Manafort hired Melissa Laurenza. She submitted three filings on Manafort’s behalf, on November 23, 2016, February 10, 2017, and June 27, 2017, all based on the representations made by Gates and Manafort (including that they had no record of communications with Tony Podesta and Vin Webber’s firms, but that they only retained email for 30 days). In the earlier filings, Laurenza claimed Manafort’s Ukrainian consulting didn’t include any outreach to US government officials or media outlets.

Last August, Mueller asked for and obtained Chief Judge Beryl Howell’s permission to compel Laurenza to testify under the crime-fraud exception to attorney-client privilege. Based off five lies for which Mueller provided evidence, Howell authorized Mueller’s team to ask seven questions of Laurenza about preparation of the FARA filings.

Then, earlier this month, a Taint Team lawyer asked for permission to have the taint Team turn over the emails that Laurenza used to write up her FARA filings. Manafort responded by claiming, in part, that he had never even seen the entirety of the litigation before Judge Howell. The Taint Team lawyer then produced the evidence that she had provided that information to Manafort in April.

If this thing goes to trial, we’re going to see a whole slew of evidence that Manafort was working directly for Viktor Yanukovych’s party, even while he hid that fact as he had Tony Podesta and Vin Weber lobby on Yanukovych’s behalf. That will get Mueller to the “direction and control” prong of the statute. By showing the efforts to which Gates and Manafort made to lie to their lawyer when they were finally forced to submit a FARA filing, Mueller will show that Gates and Manafort twice made sure that the FARA filing lied about what they had really been doing for Yanukovych.

One question I’m left with, particularly when we compare Manafort’s actions with Butina’s (which I’ll do in my next post), is why Mueller didn’t just charge Manafort with spying for Yanukovych, rather than just lobbying for him?

Update: Sam Patten, who also worked with Konstantin Kilimnik pitching Yanukovych’s party, is pleading guilty to FARA violations this morning.

As I disclosed 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. 

A Warning about Hype Surrounding the Manafort Tax Evasion Trial

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As I laid out a few weeks ago, 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.

Because Mueller has already obtained the testimony of chatty Trump allies who promptly leaked the content of their interviews to the press, the constant stream of easy updates on the Mueller inquiry has dried up. No outlet has thus far invested in the critical thinking to figure out the publicly available side of what I reported to the FBI that subsequently got moved under Mueller. No one has thought about why Michael Cohen’s very competent attorney is letting him leak to the press rather than (or, at best, in parallel with) offering a proffer to the Feds. Instead, outlets are dedicating front page space to recycled stories they first reported three months earlier. We actually spent half the day Friday getting our fix from the news that Don Jr and Robert Mueller not only had reason to fly out of National Airport’s shitty 35X gate, but were doing so at the same time (for the record, I would have been in the 35X terminal with Trey Gowdy Thursday, but he apparently got rebooked from a badly delayed Greenville flight onto an on-time Charlotte one across from 35X; he wore shades right up to boarding the plane to avoid detection but that didn’t thwart my powers of observation).

We’ve hit the summer doldrums of the non-stop Mueller inquiry news addiction and things are getting bleak.

Perhaps because of that, news outlets are hugely hyping the Paul Manafort trial, due to start on Tuesday. Here’s Politico reporting “Risks pile up for Trump as Manafort heads to trial.” And here’s WSJ claiming “Manafort Trial Holds Big Implications for Russia Probe.” [Update: Here’s the WaPo contribution to the hype; I make some specific compliments and criticisms of it in this thread.]

Yes, it is true that (as both Politico and WSJ point out) there will be a small campaign angle to the trial: Mueller’s team wants to explain how Manafort got a $16 million loan from Chicago’s Federal Savings Bank by promising its Chairman, Stephen Calk, a position in the Trump Administration. But that’s garden variety sleaze, not conspiring with Russia.

It’s also true we’ll get salacious new details on the luxury goods Manafort used to launder money. But most of that, including details of a bizarre arrangement with the local antique rug shop, have already been stipulated in pre-trial filings. Manafort is even trying to get details of his ties to Viktor Yanukovych excluded from the trial, but in doing so, he released a ton of documents that the press has already mined for worthwhile reporting.

It’s also possible that Manafort will decide, between today and Tuesday, to cooperate with Mueller rather than face a fairly straightforward trial, or that a guilty verdict in four weeks time will induce him to cooperate. Thus far, there’s little sign of that, and a guilty verdict will have no immediate change on his jailhouse conditions that might persuade him to cooperate. Any federal sentence will ultimately be served in conditions better than the ones he currently is in at Alexandria jail.

Barring some unexpected jury intransigence or judicial rulings, it still looks like Manafort’s best shot to avoid spending the rest of his life in prison is a pardon, and he looks to be operating accordingly, imposing as much reputational damage to Mueller as possible, without budging on his willingness to stay the course in apparent expectation he’ll be rewarded at some point in the future.

Aside from Rick Gates — who is sure to be beat up by Manafort’s attorneys — the most interesting witness who might testify at trial is Bernie Sanders’ former campaign manager Tad Devine, who would testify about PR work done before 2014. We’ll have to wait to see Tony Podesta and Vin Webber and similarly illustrious people testify for the DC trial, if it happens. This trial is just the appetizer course for the feast on sleazy DC influence peddling we’ll get in September, if the DC trial actually happens.

The newsworthiness of the trial will be limited further still by the outdated policies of the courthouse, EDVA. No devices are permitted in the courthouse, which means there will be no real time coverage. To break news, you have to leave the courthouse, and go to your (meter parked) car or the cafe where you’ve left your device across the square to report out. As a result, any “breaking” scoops will likely come from less responsible journalists with less grasp of both how trials and Judge TS Ellis works (as we saw earlier this year, when Daily Caller led everyone to believe one of Ellis’ typical rants indicated trouble for Mueller). Responsible journalists (Josh Gerstein and Zoe Tillman are particularly good bets for this trial) will sit through the entire proceeding before reporting out something more measured.

This is a tax trial, not a spy trial. Financial experts call it a “paper trial,” meaning the jurors will weigh dry documentary evidence rather than the reliability of unreliable witnesses (like Gates), which makes the outcome more predictable, though in no way guaranteed.

One of a slew of reasons why I declined an offer to cover this trial is I expect any interesting Mueller news to happen elsewhere — perhaps in his apparent relentless pursuit of testimony from Roger Stone’s allies, perhaps in the negotiations over Julian Assange’s continued residence in Ecuador’s embassy, perhaps even in fallout from Mariia Butina’s arrest (though Butina is not a Mueller case, in spite of what some outlets will tell you). I didn’t want to miss such news because I was stuck in a court room watching witnesses talking about financial documents.

Undoubtedly, the trial will be well-watched and in some outlets well-reported. It will teach a lot of people about how white collar trials of privileged defendants work. It may well be the rare moment when a white collar criminal faces consequences for his acts.

But don’t rest your hopes for continued Mueller disclosures on the Manafort trial.

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.