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Russia Russia Russia

In a piece describing how, after Trump attempted to publicly humiliate Volodymyr Zelenskyy, talks on normalizing relations with Russia (negotiated by Kirill Dmitriev, of Mueller Report fame) will accelerate…

There is also renewed optimism in Moscow that, with President Zelensky at odds with President Trump and his team, difficult negotiations to end the war in Ukraine will now take a back seat to a raft of potentially lucrative US-Russia economic deals already being tabled behind closed doors.

[snip]

Already the Kremlin’s key economic envoy to the talks, Kirill Dmitriev, has told CNN that cooperation with the US could “include energy” deals of some kind, but no details have been announced.

Separately, the Financial Times is reporting that there have been efforts to involve US investors in the restarting Russia’s Nord Stream 2 gas pipeline to Europe, which Germany halted at the beginning of Russia’s invasion of Ukraine.

Dmitriev has called for the Trump administration and Russia to start “building a better future for humanity,” and to “focus on investment, economic growth, AI breakthroughs,” and long-term joint scientific projects like “Mars exploration,” even posting a highly produced computer graphic, on Elon Musk’s X social media platform, showing an imagined joint US-Russia-Saudi mission to Mars, on board what appears to be a Space X rocket.

CNN described literal “bewilder[ment]” about why Trump would sell out America’s allies.

[W]hy the US president would choose the Kremlin over America’s traditional partners remains the subject of intense speculation.

Much of it, like the frequent suggestion that Trump is somehow a Kremlin agent, or beholden to Putin, is without evidence.

Perhaps the right-wing US ideological fantasy that Russia is a natural US ally in a future confrontation with China, and can be broken away from its most important backer, is motivating Washington’s dramatic geopolitical shift.

But for many bewildered observers, both explanations for Trump’s extraordinary pivot to the Kremlin seem equally misplaced. [my emphasis]

CNN asserted there’s no evidence to back the claim that Trump is “beholden to Putin” in spite of the fact that Russia helped Trump win in 2016, after which Dmitriev reached out and discussed a bunch of investments — investments which would require ending sanctions — as a way to improve relations. CNN asserted there’s no evidence to back the claim that Trump is “beholden to Putin” in spite of the fact that Russia attempted to help Trump win in 2020 at least by sending disinformation framing Joe Biden and his kid via Russian agent Andrii Derkach to Trump’s personal lawyer. CNN asserted there’s no evidence to back the claim that Trump is “beholden to Putin” in spite of the fact that Derkach made similar efforts in 2024, and a bunch of Russian malign influence efforts (possibly including bomb threats that forced the evacuation of Democratic precincts) similarly aimed to help Trump and others who would “oppose aid to Ukraine.”

CNN asserted there’s no evidence to back the claim that Trump is “beholden to Putin” in spite of the fact that a key Putin advisor, Nikolay Patrushev, said this in November:

In his future policies, including those on the Russian track US President-elect Donald Trump will rely on the commitments to the forces that brought him to power, rather than on election pledges, Russian presidential aide Nikolay Patrushev told the daily Kommersant in an interview.

“The election campaign is over,” Patrushev noted. “To achieve success in the election, Donald Trump relied on certain forces to which he has corresponding obligations. As a responsible person, he will be obliged to fulfill them.”

He agreed that Trump, when he was still a candidate, “made many statements critical of the destructive foreign and domestic policies pursued by the current administration.”

“But very often election pledges in the United States can iverge [sic] from subsequent actions,” he recalled.

As people puzzle through this bewilderment, as people puzzle through why Trump appointed people who undermined the Russian investigation to lead the FBI, the boilerplate about what Robert Mueller discovered about Russia’s 2016 efforts to help Trump remains wildly inadequate, as in this recent version in a story on Don Bongino’s propaganda about the investigation.

Mueller’s inquiry found repeated contacts between Russia-linked entities and Trump campaign advisers, but didn’t establish a conspiracy between the two.

Mueller didn’t establish a conspiracy between Trump and Russia. But such boilerplate always leaves out that his key aides lied about the true nature of those contacts, which is a big reason why we wouldn’t know if there had been one.

In the Mueller investigation, Trump’s campaign manager, foreign policy advisor, National Security Adviser, personal lawyer, and rat-fucker were all adjudged to have lied about the true nature of Trump’s ties to Russia from the first campaign.

Let’s unpack that even further.

  • Trump’s personal lawyer, Michael Cohen, confessed to lying to hide the direct contact he had during the campaign with Dmitry Peskov’s office in pursuit of an impossibly lucrative Trump Tower deal, a deal that would have required lifting sanctions to complete. Cohen confessed to lying to cover up his conversations with Trump about that impossibly lucrative Trump Tower deal. His confession meant that when Trump disclaimed pursuing business deals with Russia — in the same July 27, 2016 press conference where he asked Russia to hack Hillary some more and said he might bless Russia’s seizure of Crimea — Trump lied to cover up that dangle for an impossibly lucrative Trump Tower deal.
  • Trump’s foreign policy advisor, George Papadopoulos (who was overtly involved in Derkach’s efforts last year), confessed to lying about the timing and circumstances of learning that Russia had thousands of Hillary’s emails and planned to release them to hurt her campaign. He lied about the other Russians that Joseph Mifsud introduced to Papadopoulos. After he pled guilty, Papadopoulos remembered and then unremembered telling his boss on the campaign, Sam Clovis, about the emails. He also claimed to forget what his own notes describing a proposed meeting in September 2016 with Putin’s team pertained to (notes that also mentioned Egypt and involved Walid Phares, whom investigators suspected of having a role in any $10 million payment Egypt made to Trump).
  • A jury found Trump’s rat-fucker, Roger Stone, guilty of lying to cover up the nature and source of his advance notice of the Russian hack-and-leak campaign. Over the course of the investigation, the FBI found evidence Stone knew of several of the Russian personas before they went public. There’s good reason to believe that Stone got advance knowledge, in mid-August 2016, of the substance of select emails from the later John Podesta leak. When prosecutors indicted Stone, they were very keen to obtain a notebook containing notes he took of all his conversations with Trump during the 2016 campaign. Stone stayed out of jail by repeatedly claiming prosecutors offered leniency to get knowledge of those contacts.
  • Don Jr. refused to testify before a grand jury, an appearance that presumably would have included questions about his understanding of the June 9 meeting at which Aras Agalarov offered dirt on Hillary in exchange for sanctions relief.
  • Amy Berman Jackson ruled that Trump’s campaign manager, Paul Manafort, reneged on his plea agreement, in part, by lying about his August 2, 2016 meeting with Konstantin Kilimnik, at which three topics were discussed: The campaign’s strategy to win swing states, how Manafort could get paid millions, and a plan to carve up Ukraine. In 2021, Treasury stated as fact that Kilimnik. was a “known Russian Intelligence Services agent” who had “provided the Russian Intelligence Services with sensitive information on polling and campaign strategy” during 2016. The report went on to explain that, “Kilimnik sought to promote the narrative that Ukraine, not Russia, had interfered in the 2016 U.S. presidential election,” a narrative Trump keeps pushing.
  • Trump’s National Security Adviser, Mike Flynn, confessed, twice, to lying about his efforts to undercut Barack Obama’s policy, including efforts to sanction Russia in response to the 2016 attack. There’s a good deal of evidence — including Flynn’s assurances to Sergey Kislyak that the “Boss is aware” — that Trump was involved in those efforts.

All of the people who lied to cover up the true nature of Trump’s Russian contacts in 2016, save Michael Cohen, were pardoned.

So was one other person — someone else who probably lied about the nature of Trump’s Russian contacts in 2017.

In the section describing his declination decisions, Mueller explained that there were three other people who probably lied, but whom he wasn’t charging.

We also considered three other individuals interviewed–[redacted]–but do not address them here because they are involved in aspects of ongoing investigations or active prosecutions to which their statements to this Office may be relevant.

The report itself and the 302s of Steve Bannon’s testimony, which evolved over the course of four interviews to more closely approximate the evidence, suggests Bannon could be one of those three (after all, Bannon, Trump’s other campaign manager, was a key witness at the Stone trial).

Not least because the report describes a pretty big discrepancy between Bannon’s testimony and Erik Prince’s regarding conversations the latter had with Kirill Dmitriev, now starring in negotiations about Russia. And both men played dumb about where the texts they exchanged in that period disappeared to.

Prince said that he met Bannon at Bannon’s home after returning to the United States in mid-January and briefed him about several topics, including his meeting with Dmitriev.1086 Prince told the Office that he explained to Bannon that Dmitriev was the head of a Russian sovereign wealth fund and was interested in improving relations between the United States and Russia.1087 Prince had on his cellphone a screenshot of Dmitriev’s Wikipedia page dated January 16, 2017, and Prince told the Office that he likely showed that image to Bannon.1088 Prince also believed he provided Bannon with Dmitriev’s contact information.1089 According to Prince, Bannon instructed Prince not to follow up with Dmitriev, and Prince had the impression that the issue was not a priority for Bannon.1090 Prince related that Bannon did not appear angry, just relatively uninterested.1091

Bannon, by contrast, told the Office that he never discussed with Prince anything regarding Dmitriev, RDIF, or any meetings with Russian individuals or people associated with Putin.1092 Bannon also stated that had Prince mentioned such a meeting, Bannon would have remembered it, and Bannon would have objected to such a meeting having taken place.1093

The conflicting accounts provided by Bannon and Prince could not be independently clarified by reviewing their communications, because neither one was able to produce any of the messages they exchanged in the time period surrounding the Seychelles meeting. Prince’s phone contained no text messages prior to March 2017, though provider records indicate that he and Bannon exchanged dozens of messages.1094 Prince denied deleting any messages but claimed he did not know why there were no messages on his device before March 2017.1095 Bannon’s devices similarly contained no messages in the relevant time period, and Bannon also stated he did not know why messages did not appear on his device.1096 Bannon told the Office that, during both the months before and after the Seychelles meeting, he regularly used his personal Blackberry and personal email for work-related communications (including those with Prince), and he took no steps to preserve these work communications.1097

The lies Trump’s top aides told to hide aspects of the 2016 Russian effort — his campaign manager, foreign policy advisor, National Security Adviser, personal lawyer, and rat-fucker — along with gaps left by both Jr and Bannon’s testimony (note, Bannon’s testimony  also conflicts with Mike Flynn’s regarding whether he was privy to Flynn’s effort to undermine sanctions) trace out clear outlines of a quid pro quo: a serial agreement to reward Russia by acceding to carve up Ukraine and an agreement to lift sanctions, in exchange for help getting elected.

And here we are, eight years later, utterly bewildered why Trump might be in such a rush to deliver up Ukraine to Russia and lift sanctions to pursue business deals, precisely the quo outlined by the lies told years ago.

Really? How is anyone bewildered about this?

On November 11, one of Putin’s closest allies complained about how, “election pledges in the United States can [d]iverge from subsequent actions.” Patrushev warned that, this time, Trump will “be obliged to fulfill” his “corresponding obligations.”

And what we are seeing in real time, in plain sight, protected by an Attorney General who has promised to investigate neither the campaign assistance nor the bribery, is Trump picking up precisely where things left off in 2017.

Starting with the very same offers Dmitriev was offering eight years ago.

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Fridays with Nicole Sandler

This was an odd podcast, because Nicole and I went back and opened live to talk about Trump’s ambush of Zelenskyy.

I’ll say more in coming days. One thing I think is super important is that the SEC is moving to settle with Justin Sun, the Chinese-linked businessman who dumped $30 million into Trump’s crypto scam during the election. Once you do that, you’ve made bribery legal (which Pam Bondi and Chad Mizelle have been rushing to do in any case). Once Russia has the luxury of bribing Trump, Ukraine was never going to win this “negotiation.” The rest is just show, with America’s sovereignty and world peace to pay for it all.

Listen on Spotify (transcripts available)

Listen on Apple (transcripts available)

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Four Years and Five Weeks

Trump announces the end of the transatlantic alliance

First it was Emmanuel Macron, putting his hand on Trump’s knee as he publicly corrected Trump in the Oval Office, in the presence of cameras, on the fact that Europe’s contributions to support Ukraine were (a) grants, not loans, and (b) larger than the contributions made by the US. Trump, in turn, tried to toss out his well-worn talking points, but the damage was done. Trump was called out by a foreign leader as a liar, in his very own office and seat of power.

Then it was Keir Starmer, waving a fancy invitation from King Charles to a state dinner, who did exactly the same thing. He publicly corrected Trump in the Oval Office, in the presence of cameras, on Europe’s support for Ukraine. Again, Trump hemmed and hawwed, and embraced the (Starmer: “unprecedented!”) invitation to a second state visit, but the damage was done. Trump was called out by a second foreign leader as a liar, in his very own office and seat of power.

You had to know this would not sit well.

As network after network played the clip of Macron’s hand on Trump’s knee, after all the networks showed Trump fawning over the Bright Shiny Thing that Starmer dangled in front of him, as Starmer very politely called Trump a liar, everyone knew that this would not end well.

And today, it was Volodymyr Zelenskyy’s turn . . . and as anyone with half a brain could anticipate, it *did* not end well.

Personally, I was amused by J.D. Vance’s holier-than-thou whining about Zelenskyy making a benign appearance in Pennsylvania saying “thank you” to the US for their support and calling it Election Interference. I don’t remember Vance taking up umbrage when the head of DOGE Elon Musk appeared and spoke at the national political rally of the neo-Nazi Alternative for Germany (AfD) party just days ahead of the recent German election, and who repeatedly praised the AfD via Xitter. After the AfD came in second, with a sizable caucus in the new Bundestag, Musk called the head of the AfD to offer congratulations and called her party the future of Germany, and Vance’s reaction was *crickets*.

Well, to be scrupulously fair, that’s not true. He *did* say something, but rather than condemning such interference, Vance joined it. At the Munich Security Conference, Vance praised the AfD (not by name but by lauding their political positions on immigration and other policies) and attacked mainstream German political parties for refusing to work with the AfD.

Americans might not have been listening to all of this, but the Europeans were – especially the Germans – and they knew exactly who Vance was praising. After the German elections, the victorious chancellor-elect made a stunning statement. From Deutsche Welle:

After his party’s victory in the election was confirmed Sunday night, [CDU party leader Friedrich] Merz said that he wanted to work on creating unity in Europe as quickly as possible, “so that, step by step, we can achieve independence from the US.”

Until recently, this would have been a highly unusual thing for any leader of the CDU to say. After all, it has always had a strong affinity for the US.

“Merz aligns himself with the legacy of historical CDU leaders such as [former chancellors] Konrad Adenauer and Helmut Kohl, both of whom played pivotal roles in strengthening transatlantic relations,” said Evelyn Gaiser, a policy advisor on transatlantic relationships and NATO with the Konrad Adenauer Foundation, a German think tank that is associated with but independent of the Christian Democrats.

[snip]

Merz spoke out after JD Vance’s speech at the Munich Security Conference (MSC) in February, in which the US vice president said that the biggest threat to Europe did not come from Russia or China, but “from within.”

“This is really now the change of an era,” Merz said on stage at the MSC. “If we don’t hear the wake-up call now, it might be too late for the entire European Union.”

Add this into the context of withdrawing from the World Health Organization and eliminating all the work done by USAID, and the message is crystal clear. While yes, this meeting today in the Oval Office was about Ukraine, it was really a sign of something much much larger.

In April 2021, when Joe Biden addressed a joint session of Congress in a non-State of the Union address, he said this:

I’ve often said that our greatest strength is the power of our example – not just the example of our power. And in my conversations with world leaders – many I’ve known for a long time – the comment I hear most often is: we see that America is back – but for how long?

We now know the answer: four years and five weeks.

RIP the Transatlantic Alliance (1945-2025).

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Trump Fired the People Who Could Dispute His False Claims about Ukraine Aid

Trump is having a tantrum because Volodymyr Zelenskyy called out Trump for parroting Russia disinformation.

The President sent out a post riddled with false claims, including that Zelenskyy has admitted to losing half the money the US has given.

Politifact debunked that claim earlier this month (while catching Elon Musk in — gasp!! — a lie about it).

“One-hundred billion (dollars) of these 177, or 200, some people even say, we have never received,” Zelenskyy said, according to the translation of the clip. “We are talking about specific things, because we got it not with money but with weapons. We got $70 something billion worth of it. There is training, there is additional transport. There are not only prices for weapons, there were humanitarian programs, social et cetera.”

It was not clear what exactly Zelenskyy was including in his accounting of the military support Ukraine has received, but his comments align with the public data on how Ukraine aid is being spent.

The money is not missing or laundered, as some posts claimed. It’s being spent as Congress intended: on U.S. weapons manufacturing, nonmilitary support in Ukraine and support elsewhere in the region.

I’m particularly interested in the disinformation that Trump and Elon are spreading about the money Ukraine has received (though this is not new — it’s one way Trump undercut support for funding last year).

As you know, I’ve been pretty obsessed (one, two, three) by the way that Trump and DOGE have repeatedly pointed to fraud identified by some of the Inspectors General that Trump fired to substantiate their claim there are hundreds of billions of dollars of fraud to find.

Effectively, DOGE is using Trump’s own mismanagement of COVID to justify their assault on the federal government.

But that’s not the only subgroup of Inspectors General Trump targeted on his fourth day on the job. By terminating State Department Inspector General Cardell Richardson and DOD Inspector General Robert Storch, followed weeks later by Paul Martin after he released a report showing the impact of cuts on USAID, Trump has fired the main people responsible for oversight of aid to Ukraine.

Indeed, both Richardson and Storch talked about how their firing will disrupt the work of tracking the aid to Ukraine.

In his declaration submitted with their wrongful termination lawsuit, Richardson emphasized that by firing him, Trump has prevented him from continuing to supervise that oversight work.

4. The work of the OIG advances U.S. foreign policy objectives and the nation’s national security. For instance, my office was responsible for overseeing programs that provided funding to support Ukraine in its war against Russia. Overseeing programs that fund initiatives in other countries makes OIG’s work uniquely challenging.

5. This crucial work is ongoing, and my unlawful termination has prevented me from continuing to supervise it during my lawful term of office.

And Storch tied his role in supervising Ukraine funding to key national security interests. He specifically described the import of tracking “the most sensitive equipment and technology provided to Ukraine.”

3. The work of DoD’s Office of the Inspector General (“OIG”) helps to safeguard U.S. national security. For example, as Inspector General, I was the Lead Inspector General, and then the congressionally-designated Special Inspector General for Operation Atlantic Resolve (“SIG OAR”), which operation includes U.S. assistance to Ukraine. I worked closely with colleagues from the Offices of Inspector General for the State Department, the U.S. Agency for International Development, and others from across the oversight community on this and the other two ongoing overseas contingency operations, which relate to countering ISIS and assisting local partners in Iraq and Syria (Operation Inherent Resolve) and to furthering U.S. policy goals in Afghanistan (Operation Enduring Sentinel).

4. As SIG OAR, I was responsible for all oversight related to U.S. security assistance to Ukraine, and for coordinating and reporting on oversight of all aspects of U.S. assistance. One of many areas where my office’s programmatic oversight has been particularly consequential is evaluating DoD’s efforts to ensure the accountability of the most sensitive equipment and technology provided to Ukraine. As has been publicly reported, assistance to Ukraine became a highly partisan issue, and it was only because of the non-partisan nature of the OIG that we were able to do this impactful oversight and to do it authoritatively and credibly. All told, as of January 2025, during my tenure as Inspector General, my office had (1) issued approximately four dozen programmatic oversight reports covering all aspects of U.S. security assistance, and (2) coordinated with our oversight colleagues on dozens more, all as transparently reported on the public website whose development I led, www.UkraineOversight.gov.

Given Trump’s abject capitulation to Putin and his overt efforts to replace Zelenskyy, I can’t help but wonder whether blinding this oversight was part of the plan. As Storch alludes, the US sent a whole bunch of sophisticated tools to Ukraine, and I’m sure there are people who’d like to put them to uses other than helping Ukraine repel Russia’s attack.

Whatever the case, when reporters push back on Trump’s false claims about Zelenskyy, they might include a question about why, if he cared about oversight of the money spent with Ukraine, one of his first acts in office amounted to gutting it.

Update: Daniel Dale has a fact check of all the lies Trump is telling about Zelenskyy.

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JD Vance at the Munich Security Conference: A Speech by Gaslight

How Vance unsettled the Europeans

While Musk was ripping through the US government like a 10 tonne toddler on cocaine, Vice President JD Vance was dispatched to the Munich Security Conference last week to tell Europeans how to run their democracies. His 19 minute speech, coupled with Trumps’ announcement that peace in Ukraine would be decided in a meeting between the US and Russia only, has swept the legs out from under Europe, NATO, and the post-war transatlantic consensus.

The speech itself was deeply weird, and breathtakingly hypocritical. Who was it for? It’s inscrutable. It wasn’t the people in the room, Vance even joked that the room would hate it. Much of it, like talk of abortion clinic perimeters, Christians burning Qurans, and weird inaccurate anecdotes about prayers didn’t make sense for a Defense crowd. The talk couldn’t have been for  the base back home; they’ll never see it, and wouldn’t get the references if they did.

Could the Europeans be the audience? Unlikely. It misunderstood European coalition politics to the point of embarrassment. I doubt it was for his boss, who isn’t particularly interested in European details, and anyway is busy destroying the state back home with Elon Musk and Elon’s emotional support human. Perhaps it was for the Heritage-Leonard Leo-Peter Thiel crowd, but then it doesn’t accomplish much more than meeting up with them and complaining about the unmanliness of Europeans over scotch.

Vance opened with talking about an Afghan man who had driven his car into a market and killed two people recently in Munich. He segued smoothly from a convincing show of human sympathy to unconvincing and suddenly icky attempt to link migration and violence. Mass violence in Europe is an issue, but it isn’t anywhere close to how prevalent it is in America. And the common factor of mass violence events isn’t migration status, it’s men.

For me, as an American who has made the EU my home, the most disturbing aspect was the pure hit by hit gaslighting Vance delivered to his audience. Based on the faces of the mostly silent crowd, they were disturbed too. He took what could have been a strong list of America’s political flaws, and scolded the Europeans for them. It was manipulative and shameless, but at least is was also transparently manipulative. No one in the room was buying it.

A group of EU mukities being annoyed with their Vance scolding session

Not particularly into this nonsense.

Vance’s speech was a scold, talking about a number of fairly niche European issues that wouldn’t read to the regime’s American supporters back home. But he also spoke as if Germany, and indeed all of Europe, was failing to meet some obligation to the US Constitution. He seemed unable to distinguish between the legal systems of the many nations of Europe, and our Constitution. He criticized the German firewall policy to keep Nazi-adjacent parties out of the German government. But he seemed to mistake it for some formal legal mechanism, rather than just rejecting associating with someone during negotiations. Coming from the American winner-take-all system, he didn’t seem to understand the many methods of how governments are formed and fall in Europe.

It was like the geopolitical version of Americans traveling abroad who are shocked to find that local laws do apply to them, and that you can’t pay in dollars.

Perhaps the most embarrassing moment in the speech was one of his most fervent, about the Romanian election. He was outraged that the Romanian supreme court ordered a re-run of an election because of credible allegations of Russian interference. But, of course, this was a constitutional choice made by the empowered body in Romania, which importantly here, is not subject to the US Constitution.

Vance doesn’t have a lower division polysci major’s understanding of European political realities. About Romania’s troubles, he said “But if your democracy can be destroyed with a few hundred thousand dollars of digital advertising from a foreign country, then it wasn’t very strong to begin with.” Here I have to give a long, deep sigh. That is correct, Mr. Vance.

Part of the project of the European Union is to help politically weakened  former eastern bloc European democracies strengthen their institutions with the goal of becoming robust democracies, one day. After decades of Soviet oppression and exploitation, institutions are weak and corruption is endemic in many of these countries. They are not strong democracies right now, and we all know that over here. It’s part of the grand conversation of the European Union. Even the former Soviet block countries’ institutions generally countenance that fact. That’s why you might want to have a method of re-running an election in an unstable situation.

Honestly though, the US could take a hint or two from some of these “not strong to begin with” democracies. Having a mechanism to re-run the 2000 election would have done this country a good turn and saved a lot of trouble, however the re-run went.

It’s hard to overemphasize how much Vance didn’t understand, or even care to understand, the nations he was speaking to and about. He misunderstood perimeter laws in the UK, coalitions in Germany, speech law everywhere, and what the European Union exists for.

But Also, Rank Hypocrisy

He pounded out the words “If you’re running in fear of your own voters, there is nothing America can do for you,” this, from a country that purges its own voter rolls along ethnic and political lines regularly. Politically motivated voter purges are uncommon in the EU, whereas they are an expected piece of electioneering in America. We even have to tell people to check and recheck they have’t been caught up in partisan voter purges every election. That’s so uncommon in Europe as to be a sign of political crisis, rather than business as usual.

Vance bellowed out at the crowd that “Thin mandates produce unstable results…” without the slightest sign of self-awareness. I have to agree with him in principle, but coalitions and alternatives to FPTP voting means that unclear and close results are rarer in Europe than America. He also conveniently omitted that his ticket won by 1.5% of the vote, but everyone in that room knew it.

One of the points he seemed very confident of was that “…there’s no more urgent issue than mass migration.” Migration is a complex issue in Europe, but most urgent? No, the data simply doesn’t support that. In fact Europeans largely agree on the need for migration, but the details are devilish. Many of us in Europe put inflation, inequality, and even climate change above migration. EU wide, the relevance of migration has been dropping steadily since the crisis a decade ago. Migration is there, but it doesn’t approach the rolling crises of consumer prices, inequality, and energy costs the truly plague Europe.

Americans don’t really worry about energy and resources the same way Europe does. Most of America’s inflation problems are more or less self-inflicted, but Europe has to rely on trade with the rest of the world to meet many of its existential needs. If Vance only talked to the AfD, Le Pen, and maybe Orban, he can definitely construct an ersatz man-child Europe, terrified of brown families crossing the Mediterranean looking for a better life. But that’s not all of Europe, and not even most of it these days.

But being an American talking about mass violence events in Europe is a tricky proposition. Being from a country where the most common cause of death in child is a bullet, Vance’s sentiment of “tak(ing) our shared civilization in a new direction” misses that a lot of Europeans don’t consider America very civilized, largely because of peculiar cultural norms like gun violence.

At one point, out of nowhere, Vance said “If American democracy can survive 10 years of Greta Thunburg scolding, you guys can survive a few months of Elon Musk.” I have no clue what this means. I think it was meant to be a laugh line. Maybe it just sounded good in his head.

Vance mainly spoke of an America that doesn’t exist. There is no broad consensus in America, no easy confidence about a bright future. The nation is checked out, divided, and struggling to survive. He wouldn’t dare try to give a ‘Morning in America’ speech any further west than Munich. He couldn’t even do it in Munich. No one was buying what he was selling.

The Europeans saw Vance as meddling, interfering in the ways that he was accusing them of doing, because he doesn’t understand European decorum around speech. Decorum is taken seriously in a way that American’s don’t understand, and a serious person is expected to watch their words in a way that Trump’s people don’t get, or care to get.

Vance often seems like the smart grownup in an administration of weirdos and troglodytes, but he’s not. He just cleans up ok. Give him some runway, and he shows he’s just as regressive and weird as the rest of the bunch. Vance is just another one of the idiot wrecking crew tearing their way through America, and now the world.

The Response

The consequences of this political clown show were immediate.

The one-two punch of Vance in Munich and Trump cutting everyone but Putin out of negotiating the Ukraine war has shocked Europe, possibly into action. Macron has hosted a meeting of leaders in Paris, including the largest states in the EU and the UK’s Keir Starmer, who is something of a self-appointed American whisperer.

It doesn’t mean the EU is springing into action. Springing is not a thing the EU does, but meetings are. It does point to the EU waking up to how dangerous the Americans really are right now, and also how delusional. Settling the Ukraine war without Ukraine at the table is insane, and both Zelensky and European leaders have pointed that out. If the Ukrainians don’t stop fighting, and they won’t, the war doesn’t end. It just turns into Russia’s Vietnam, or Algeria, or Afghanistan, again. And Ukraine becomes a field of bones and blood and hate.

There’s talk in Europe of peace keepers in Ukraine. Not serious talk, and peacekeepers are a terrible idea, but at least they’ve started throwing spaghetti at the wall.

NATO head Mark Rutte is out pounding the pavement with leaders and press about the need to get military spending in Europe up to 5% of Everyone’s GDP. It’s a transparent call to be able to cut the Americans out and take on threats like Russia and Iran on their own. But it’s also a hard lift, at a time when economics and climate change are pressing Europe. The countries most at risk — Poland, Finland, and the Baltics, are already ramping up to resist Russian invasion. This isn’t paranoia, Russian political elites have promised to come get them after Ukraine for years.

The US, and its power to bind things together geopolitically is gone, possibly for good. But the old European terrors, mainly Russia and in-fighting, persist.

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Ten Days after David Slater Told His Honeypot American Officials Were Traveling to Kyiv, Lloyd Austin and Tony Blinken Arrived

I’ve been puzzling over how the government discovered that retired Lieutenant Colonel David Franklin Slater was leaking classified information to a honeypot he met on an online dating site.

But it seems likely that it arose from a counter-reaction to information he leaked about a trip of two officials to Ukraine.

On April 13, 2022, according to the indictment, Slater shared information about Russian capabilities in Ukraine.

[O]n or about April 13, 2022, DAVID FRANKLIN SLATER transmitted classified NDI regarding Russian military capabilities relating to Russia’s invasion of Ukraine.

[snip]

On or about April 13, 2022, in the District of Nebraska and elsewhere, the defendant, DAVID FRANKLIN SLATER, having authorized possession of, access to, and control over information relating to the national defense, willfully communicated, delivered, and transmitted that information to a person not entitled to receive it with reason to believe such information could be used to the injury of the United States or to the advantage of any foreign nation: to wit, DAVID FRANKLIN SLATER transmitted SECRET information regarding ·Russia’s war against Ukraine to Co-Conspirator 1.

The next day, his honeypot thanked him for advance notice of two officials who were traveling to Kyiv.

On or about April 14, “My sweet Dave, thanks for the valuable information, it’s great that two officials from the USA are going to Kyiv.”

Ten days later, Tony Blinken and Lloyd Austin arrived in Kyiv.

At a hearing on Tuesday, Magistrate Judge Michael Nelson granted the government’s request to treat this as a complex case (possibly because it’ll require CIPA). With the government’s consent, Slater was given pretrial release.

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Zelenskyy wasn’t the First Ukrainian President to Address a Joint Meeting of Congress

Viktor Yushchenko addresses a Joint Meeting of the US Congress, 2005 (White House photo by David Bohrer)

On April 5, 2005, the JFK Library welcomed the recipient of their annual Profile in Courage Award, Viktor Yushchenko. Senator Ted Kennedy opened his brief remarks at the ceremony by saying this:

In “Profiles in Courage,” President Kennedy wrote: “A man does what he must – in spite of personal consequences, in spite of obstacles and dangers and pressures – and that is the basis of all human morality.” Our honoree this evening vividly embodies my brother’s words, and is renowned throughout the world for his extraordinary courage.

As we all know, at a critical moment in his nation’s history, he took a strong and courageous stand for what he knew was right. He risked his life – and nearly lost it – in the ongoing struggle for democracy in Ukraine. His story is the story of honor, decency, and the will of the people triumphing over fraud, deceit and intimidation. And because of his great courage, the rule of law prevailed against the oppressive rule of the powerful over the powerless.

In 1993, Yushchenko became head of Ukraine’s national bank, but 8 years later he was dismissed because his push for reforms made him too popular with ordinary Ukrainians. Again from Ted Kennedy:

Refusing to be silenced, he became the head of a political party and helped create a bloc of reform parties called “Our Ukraine,” which won a plurality of seats in the parliamentary elections of 2002 and became a significant force in the legislature.

As the presidential election approached in 2004, it was obvious that he appealed to Ukrainian citizens in ways no other politician could. His popularity was higher than any others because he had the ability to relate to people’s lives, and was so clearly seeking public office for the public good, not private gain.

These qualities endeared him to the people, but made him a special threat to the corrupt leaders of the regime in power. Nothing – not even a vicious attempt to poison him – could break his spirit and prevent him from speaking out against corruption and for a democracy grounded firmly in the rule of law.

[snip]

State-owned media shamelessly opposed him, and independent media were subjected to violence and intimidation in a largely successful effort to silence their support.

Opposition rallies faced constant harassment. Government employees, factory workers and students were threatened with dismissal unless they opposed him. President Putin of Russia openly intervened by declaring his support for the government candidate and sending a team of his top political advisers to assist him.

Yushchenko continued his campaign, even after being poisoned. (A political reformer, poisoned? Why does that sound familiar?). When the election was held, international observers noted huge irregularities and fraud, and when election authorities declared his opponent the winner, the people of Ukraine poured into the streets in protest in what became known as the Orange Revolution (after the prominent color used by Yushchenko’s campaign). In the end, the Ukrainian courts looked at it, agreed with the accusations of fraud, and ordered a new election – an election Yushchenko won.

The day after the JFK Library honored Yushchenko, he addressed a joint meeting of the US Congress. Just like Zelenskyy yesterday, he tied what was happening in Ukraine with the US and its own history, opening his remarks with these words:

Mr. Speaker and Mr. President, Honorable Senators and House Members, Ladies and Gentlemen: On the wall of this great building, there is the Latin phrase “E Pluribus Unum,” which means “Out of many, one.” This motto reminds the world about the American Revolution, the starting point of the modern world’s history of liberty.

My road here went through the orange-colored Independence Square that became known as maidan. Millions of people standing there continuously repeated it: “Together we are many, we cannot be defeated.” This motto of the Ukrainian Revolution is a reminder of the fact that freedom continues to win. Ukraine is opening a new page in the world’s chronicle of liberty in the 21st century.

These two mottos have a lot in common. They speak to the strength of our peoples that comes from unity. They speak of the victories of our peoples in their struggles for freedom.

The whole address is here [pdf, beginning on page 12], but let me highlight a few other parts of it.

My oath is built on the reminiscences of the common prayer of hundreds of thousands of people in the maidan. Christians, Jews, Muslims were praying one prayer, everybody according to their rites, with everybody asking the Creator for one thing: freedom, fairness and blessings for Ukraine and for each of its citizens.

We are building an open economy that encourages innovation, rewards initiative, and assures high social standards. We are beginning an implacable war on corruption, promoting fair competition and forming transparent government-to-business relations. My goal is to place Ukraine in the forefront of prosperous democracies. My vision of the future is Ukraine in a United Europe.

That sounds a bit like something we heard from Zelenskyy last night:

Ladies and gentlemen — ladies and gentlemen, Americans, in two days we will celebrate Christmas. Maybe candlelit. Not because it’s more romantic, no, but because there will not be, there will be no electricity. Millions won’t have neither heating nor running water. All of these will be the result of Russian missile and drone attacks on our energy infrastructure.

But we do not complain. We do not judge and compare whose life is easier. Your well-being is the product of your national security; the result of your struggle for independence and your many victories. We, Ukrainians, will also go through our war of independence and freedom with dignity and success.

We’ll celebrate Christmas. Celebrate Christmas and, even if there is no electricity, the light of our faith in ourselves will not be put out. If Russian — if Russian missiles attack us, we’ll do our best to protect ourselves. If they attack us with Iranian drones and our people will have to go to bomb shelters on Christmas Eve, Ukrainians will still sit down at the holiday table and cheer up each other. And we don’t, don’t have to know everyone’s wish, as we know that all of us, millions of Ukrainians, wish the same: Victory. Only victory.

Yushchenko continued his 2005 speech by laying out a desire to integrate more fully with Europe, and buttressed his remarks with references to Presidents Wilson, Reagan, Bush the Elder, and Clinton. Then he went on:

Dear friends, the goal of my visit to the U.S. is to establish a new era in Ukraine-U.S. relations. We do not seek only thaws that alter chillings in our relations. We seek a new atmosphere of trust, frankness and partnership. A new Ukraine offers the U.S. a genuinely strategic partnership.

[snip]

The U.S. and Ukraine have common strategic interests, and we have unity in one thing. Everywhere possible we want to uphold freedom and democracy. We are committed to such a responsibility because we know if somebody is deprived of freedom, this freedom has been taken away from us.

[snip]

Ukraine will be a reliable partner to the U.S. in fighting terrorism. I am sure we will be able to overcome it and not only by power of force. It is our obligation to eradicate the sources of terrorism. We can defeat the ideology of hatred that nourishes it. I am fully convinced that the time will come when in the dictionary of world languages, the term “terrorism’’ will be followed by the footnote, “archaic term.’’

The actions of the past year have proven Yushchenko’s promise that Ukraine would be a reliable partner of the US to have been honored, and Zelenskyy’s speech yesterday was a great reminder of what Yushchenko said in 2005.

Near the end of his address, Yushchenko began his conclusion with these words:

Ladies and Gentlemen: John Fitzgerald Kennedy took an oath before the whole world by saying, “We shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe, to assure the survival and the success of liberty.’’ I am subscribing to these words on behalf of Ukraine. This authority was given to me by my fellow countrymen who endured days and nights in bitter cold and snow on the maidan. Ukraine is free and will always remain free. Citizens of Ukraine gained their freedom due to their courage and support of friends and proponents of democracy across the world.

These words, too, have proven true.

Yushchenko spoke to Congress in 2005 at the invitation of a GOP-run House and Senate, while a Republican president was in the White House. Zelenskyy spoke to Congress yesterday at the invitation of a Democratic-run House and Senate, while a Democratic president was in the White House. Both Ukrainian presidents hit the same notes, pleading for a stronger partnership with the US, regardless of which political party was in charge in DC. Even without that partnership, however, each pledged that Ukraine would continue its fight for freedom.

Over the past year, Volodymyr Zelenskyy and the people of Ukraine have demonstrated that Yushchenko’s words were not simply flowerly language in a fluffy speech. Back in 2005, Caroline Kennedy said this about why the JFK Library selected Yushchenko to receive the Profiles in Courage award:

His courage has inspired citizens of the world. For those of us who are free – he has reminded us that we can never take our freedom for granted, and for people with no voice in their own government, President Yushchenko and the Ukrainian people have given them hope.

Zelenskyy delivered his own reminder of this to those of us who are free last night, much as Yushchenko did in 2005.

Thank you, President Zelenskyy. Slava Ukraini, indeed.

 

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A Likely Looming Battle in the Stolen Document Case: Classified White House Counsel Documents

In this post, I argued that DOJ hopes to use a motion to stay Judge Aileen Cannon’s injunction against using materials seized from Donald Trump in any criminal investigation tactically — basically, to highlight she’s just stalling the investigation.

But I want to flag something that I think will be contentious going forward: Classified documents involving White House Counsel.

In its description of why all classified documents should be exempted from Judge Cannon’s injunction, DOJ noted that classified records cannot belong to Trump, and so he has no basis to make a Rule 41(g) motion. But their explanation of why such records would be excluded from any attorney-client privilege determination is more telling. It only extends to Trump’s personal lawyers.

But that rationale is categorically inapplicable to the classified records at issue in this motion, which are easily identifiable by their markings, are already segregated from the other seized records, and do not include personal records or potentially privileged communications with his personal attorneys.

[snip]

The classification markings establish on the face of the documents that they are government records, not Plaintiff’s personal records. The government’s review of those records does not raise any plausible attorney-client privilege claims because such classified records do not contain communications between Plaintiff and his private attorneys. [my emphasis]

DOJ is right that any classified documents obviously belong to the government.

But Trump’s lawyers don’t even want to cede that point. They refused the motion for a stay with respect to classified documents (which is not surprising, because in the hearing Jim Trusty said they could just make copies of all the classified records).

Counsel for the United States has conferred with counsel for Plaintiff, and Plaintiff opposes the government’s motion.

But there are known government documents in which the White House Counsel were involved that are likely among the ones Trump would most like to withhold: starting with discussions about materials (including a mention of Burisma) excised by the White House Counsel’s office from the transcript of the call between Trump and Volodymyr Zelenskyy.

The particular language used here — specifying that attorney-client privilege only extends to stuff involving Trump’s “personal” or “private” attorneys — suggests there are materials at issue involving Trump’s non-private attorneys, which could be DOJ but is most likely the White House Counsel.

As I have noted, there are three known classified documents that were put in the potentially privileged bucket, at least at the start.

There’s one document marked Confidential and another marked Secret seized from drawer(s) in Trump’s office.

And there’s a Top Secret document stashed along with clippings dating back to 1995 in box 29.

Plus, the packet involving clemency for Roger Stone — while it was not treated as potentially privileged — does include information marked as Secret.

If that involved communications with DOJ or the White House Counsel, I could see Trump trying to claw it back as well.

DOJ says that none of these involve Trump’s personal lawyers. But they’re not ruling out that they involve lawyers you and I paid for, the White House Counsel. And those documents are among the ones I can imagine Trump might care the most about.

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One Big Potentially Pending Question: What Happens to Trump’s Impeachment 1.0 Papers?

There’s a comment in DOJ’s response to Judge Aileen Cannon’s order to file an update by tomorrow that caught my attention. DOJ suggests there may be no dispute about whether the stuff it has been pursuing a review of is really privileged.

Although the government will provide the Court more detail in its forthcoming supplemental filing, the government notes that, before the Court issued its Preliminary Order, and in accordance with the judicially authorized search warrant’s provisions, the Privilege Review Team (as described in paragraphs 81-84 of the search warrant affidavit) identified a limited set of materials that potentially contain attorney-client privileged information, completed its review of those materials, and is in the process of following the procedures set forth in paragraph 84 of the search warrant affidavit to address potential privilege disputes, if any.

As I laid out here (and as virtually all journalists are still getting wrong), DOJ used a privilege team for the search on August 8. At least according to Fox News, all the potentially privileged material was inventoried on what I call the SSA receipt (because it was signed by the Supervisory Special Agent, rather than the Special Agent).

I surmised and DOJ has now confirmed that DOJ has been “in the process of following the procedures set forth in paragraph 84 of the search warrant affidavit to address potential privilege disputes, if any.” That means DOJ is using one of these methods:

84. If the Privilege Review Team determines that documents are potentially attorney-client privileged or merit further consideration in that regard, a Privilege Review Team attorney may do any of the following: (a) apply ex parte to the court for a determination whether or not the documents contain attorney-client privileged material; (b) defer seeking court intervention and continue to keep the documents inaccessible to law-enforcement personnel assigned to the investigation; or (c) disclose the documents to the potential privilege holder, request the privilege holder to state whether the potential privilege holder asserts attorney-client privilege as to any documents, including requesting a particularized privilege log, and seek a ruling from the court regarding any attorney-client privilege claims as to which the Privilege Review Team and the privilege-holder cannot reach agreement.

Option c is effectively to invite Trump to provide feedback on the privilege issues, an option that Evan Corcoran has told us DOJ specifically rejected  back on august 11.

Option b is to simply not access the materials; since FBI seized it, it’s likely they saw something on August 8 that made them want to access the materials.

So we can be fairly sure that DOJ is pursuing Option a to get this material, an ex parte review by a judge — the implication is Bruce Reinhart, but it’s possible they’ve involved someone who’s more senior, such as DC Chief Judge Beryl Howell (who is presiding over the grand jury conducting this investigation) or SDFL Chief Judge Cecilia Altonaga — to see whether it is attorney-client privileged.

I want to talk about three categories of documents that might appear to be covered by attorney-client privilege that a judge might otherwise decide are not. DOJ’s suggestion that there may not be a dispute reminds me of how, during the privilege review of Michael Cohen’s phones in 2018, as soon as Judge Kimba Woods ruled that any fight over privilege would have to be public, Trump slithered away and stopped fighting to keep the recordings about hush payments that Cohen kept on his phone away from prosecutors.

In other words, particularly since DOJ completely bypassed any involvement from Trump, I suspect DOJ believes that the materials currently under ex parte review by Reinhart or some other judge may be crime-fraud excepted.

Consider the kinds of materials that, under the warrant, could be seized:

  • Any Presidential or government record created during Trump’s term, which would include most if not all of the subcategory of documents bearing classification marks
  • Documents stored along with (that is, perhaps in the same storage closet) documents bearing classification marks
  • Evidence of the knowing alteration, destruction, or concealment of government and/or Presidential records — basically, of obstruction

If it remains true that all documents with potentially privileged materials are on the SSA receipt, it is likely that there were a chunk of documents — labeled just “documents” seized from his office (where the privilege team did all the initial search) — as well as five boxes that by description were stored with documents bearing classified markings, probably found in the storage room and handed off to the filter team for some reason.

The most obvious set of materials that would appear privileged but might be deemed by a judge to be crime-fraud excepted would pertain to obstruction: Materials that post-date Trump’s Presidency involving lawyers (either the former White House counsels who attempted to get him to return the documents) or his current attorneys, especially including the effort to refuse NARA and DOJ’s requests and/or to provide bullshit information in response to one or more subpoenas. That’s what those documents seized from Trump’s office might consist of.

Another category of documents might include materials involving non-governmental lawyers — Rudy Giuliani or John Eastman are likely possibilities — that appeared on official government records. These materials might pertain to January 6. Particularly given that SCOTUS approved the waived privilege claims over Trump’s governmental files, those seem like an easy decision.

A third category of information pertains to advice White House counsel lawyers gave Trump while still in office outside the context of a legal proceeding (different from the advice the same former White House counsels gave during the extended fight with NARA) that he wants to keep from DOJ. The Bill Clinton precedent would say that NARA at least gets this information, and if there is a legal basis for the FBI to obtain it (such as that it includes classified information, as the White House counsel response to the Zelenskyy-Trump call would be), then it would seem FBI would be able to obtain it. Given Trump’s bid to claim Executive Privilege over certain information, I wouldn’t be surprised if this were a heated issue.

The one set of documents that I think does raise real concerns, though, is Trump’s defense during Impeachment 1.0. At least three members of the White House Counsel staff were part of Trump’s defense team: Pat Cipollone, Patrick Philbin, and Michael Purpua. Taxpayers paid their salaries during the period when they were defending Trump, and so under the Clinton precedent, any files involving them would seem to be government documents covered by the Presidential Records Act. But Trump also had some talking heads — like Alan Dershowitz and Pam Bondi — and one of the real private attorneys who represented him in the Russian investigation, Jane Raskin. Trump’s communications with the later two groups should be privileged.

I’ve asked experts on Richard Nixon and Bill Clinton what happened with their impeachment records. Best as I can tell, many of those records are in the Archives. But I’m still not sure how the special case of Trump’s impeachment defense would be treated.

Update: Removed Eric Herschmann from the list of WH Counsels who represented Trump in impeachment. He was still in private practice then.

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Trump’s Timid (Non-Legal) Complaints about Attorney-Client Privilege

Yesterday, I observed that the FBI gave the former President two different receipts for the search on his golf resort.

There’s the one consisting of five boxes and a separate category, “Documents,” not associated with any boxes, signed by the Supervisory Special Agent. There are no classified documents described. I’ll refer to that as the SSA Receipt in this post.

Then there’s the one that consists of 27 items, mostly boxes, many with sub-items, which are often descriptions of the kinds of classified documents contained in the box or the leather case they were seized in. It was signed by a Special Agent. I’ll refer to that as the CLASS Receipt in this post.

I suggested that one explanation for providing Trump two separate receipts might be if the SSA receipt covered evidence showing Trump violated 18 USC 1519, destruction, alteration, or falsification of records in Federal investigations, and the CLASS receipt covered evidence showing Trump violated 18 USC 793, retaining national defense information under the Espionage Act. I argued the two receipts would cover evidence responsive to crimes that might be charged in different venues, DC for the obstruction charge and SDFL for the Espionage charge.

The third statute on Trump’s warrant, 18 USC 2071, removal of official records would cover everything covered by the Presidential Records Act and would generally backstop everything seized under the other two statutes. It covers both. Consider it an umbrella charge.

Today Trump, in the form of a post on Truth Social and related stories shared to Trump-friendly media, has confirmed I’m right that there’s significance to the two separate receipts.

Trump-friendly outlets have explained that “the former president’s team was informed” that the materials seized via what I’ve called the SSA receipt “contain information covered by attorney-client privilege” but that DOJ “opposed Trump lawyers’ request for the appointment of an independent, special master to review the records.”

The FBI seized boxes containing records covered by attorney-client privilege and potentially executive privilege during its raid of former President Trump’s Mar-a-Lago home, sources familiar with the investigation told Fox News, adding that the Justice Department opposed Trump lawyers’ request for the appointment of an independent, special master to review the records.

Sources familiar with the investigation told Fox News Saturday that the former president’s team was informed that boxes labeled A-14, A-26, A-43, A-13, A-33, and a set of documents—all seen on the final page of the FBI’s property receipt —contained information covered by attorney-client privilege.

[snip]

Sources told Fox News that some records could be covered by executive privilege, which gives the president of the United States and other officials within the executive branch the authority to withhold certain sensitive forms of advice and consultation between the president and senior advisers.

I believe there must be some truth to this because if Trump were making completely unsubstantiated claims, he would have made it more generally, claiming that all the boxes must include attorney-client privileged material. Furthermore, Trump’s claims to have watched the search via CCTV notwithstanding, it is highly unlikely Trump has CCTV coverage of his own office, bedroom, and a random storage closet such that he would know what’s in box A-14 (and so on the SSA receipt) versus what’s in box A-15 (which was on the CLASS receipt). Someone who knows the outcome of the search told Trump that one set, but not the other, has materials that are attorney-client privileged. That has to come from the government.

That doesn’t mean my larger hypothesis — that one receipt covered violations of the Espionage Act and the other covered obstruction — has been vindicated. On the contrary, DOJ may simply have chosen to put all records that include an attorney-client claim on a separate receipt so that, if Trump obtains a competent lawyer and demands the Special Master review he’s making a half-hearted request for now, DOJ can move forward with all the other evidence without a 9-month delay like the Special Master review of Rudy Giuliani’s phones necessitated. It would be a clever way of dealing with a very sensitive legal issue.

But I don’t think it’s as simple as that either. Bizarrely, Trump knows something about those boxes such that he’s trying to claim Executive Privilege, in addition to attorney-client privilege.

It’s a nonsense claim, legally. Probably every single box seized last Monday has materials covered by Executive Privilege in them, because every single box would include communications directly with Trump. But there is absolutely no basis for any EP claim for a single thing seized from Mar-a-Lago because the Presidential Records Act underlying the seizure is designed, specifically and especially, to make sure all the EP materials are preserved for history. It’s one of the reasons his refusal to turn over the materials that the Archives were asking for specifically is so insanely stupid, because it gave FBI no choice but to come seize this stuff. Trump’s not making an EP claim to try to delay DOJ’s access to the 27 items, which are mostly boxes, on the CLASS receipt. So he must have learned something about the materials itemized in the SSA receipt to which, in a frantic and transparently silly effort, he’s trying to delay DOJ’s access.

Trump’s announcement that the material on the SSA receipt seems to rule out another possible explanation for the SSA receipt I had been pondering, that it covered the materials that were particularly sensitive from a national security perspective, such as the information on nuclear weapons.

And it doesn’t rule out my hypothesis that that material was seized in the obstruction investigation. Indeed, in two ways, it might corroborate my hypothesis.

There are two theories of the 1519 charge. One, which NYU’s Ryan Goodman is championing, suspects it is about the investigation into Mar-a-Lago, criminalizing the effort in June to withhold materials. If that were the significance of the 1519 charge, separating out the communications between lawyers and NARA and DOJ might make sense, since those would be communications into this investigation. That said, there’d be no basis for an EP claim for any of that, since it all post-dated Trump’s ouster. And as soon as DOJ confirmed that some classified material had been knowingly withheld in June when his lawyers told DOJ that it was all turned over, there’d be a crime-fraud exception for those materials.

My theory of the 1519 charge — that it arose out of NARA’s discovery that Trump had attempted to destroy materials subpoenaed in past and present investigations — would similarly be likely to have attorney-client privileged documents. Take a few examples:

  • One thing Trump is likely to have withheld is the Perfect Transcript between him and Volodymyr Zelenskyy, which is something Congress was entitled to get during impeachment. That transcript was hidden from Congress by White House lawyer John Eisenberg, among other lawyers, thereby according the transcript a weak privilege claim, but one easily overcome by the obstructive nature of the choice to withhold it.
  • Another set of things we know were withheld from several investigations were documents showing sustained communications with Russia that should have been turned over by the Trump Organization. The most provable of those were the communications between Michael Cohen and Dmitri Peskov’s office in January 2016 (Mueller got his own copy via Microsoft). There’s probably correspondence regarding an invite Russian Deputy Prime Minister Sergei Prikhodko extended to Trump to attend Putin’s St. Petersburg Economic Forum in June 2016. The Trump Organization did not produce to SSCI the copy of Paul Manafort’s Securing the Victory email he sent to Rhona Graff. The subpoena response on all these issues was handled by Trump’s corporate lawyers, Alan Futerfas and Alan Garten, and so would be privileged — but also crime-fraud excepted — evidence that Trump obstructed various Russian investigations.
  • While one draft of Trump’s termination letter to Jim Comey was ultimately turned over to Mueller (after reports that the only extant copy was one preserved by DOJ lawyers), the Mueller Report narrative surrounding it makes it clear that Trump and Stephen Miller worked over several drafts before the one shared with others. Those earlier drafts were likely not turned over, in part because White House Counsel lawyers advised Trump that these drafts should “[n]ot [see the] light of day.” Again, that’s legal advice, but also proof of documents that were illegally withheld from the Mueller investigation.
  • I don’t want to even imagine what advice from Rudy Giuliani that Trump has withheld from various investigations, particularly pertaining to January 6. Most of that would be (shitty) legal advice. If it was also withheld from proper investigations, though, it’d also be proof of obstruction under 18 USC 1519.

In other words, aside from the documents Trump tried to rip up or eat or flush, many of Trump’s known violations of 18 USC 1519 would involve lawyers directly. Virtually every investigation into Trump was stymied by improper decisions by lawyers. And those withheld documents would once have been privileged, but they’d also be solid proof of obstruction.

And if Trump had reason to believe that DOJ, after predicating an investigation on all the evidence Trump had tried to rip up or eat or flush evidence, had sought and seized all the attorney-client protected materials that had insulated Trump from consequences for his past actions, it might explain one of the biggest puzzles from the last week. For some reason, Trump has worked far harder to obscure that this obstruction investigation exists than that he’s under investigation for a crime with the word “Espionage” in the title. For some reason, Trump is more afraid of the obstruction investigation than the Espionage Act investigation.

One possible explanation for that is that he fears the other secrets he’s been keeping more than proof that he stole a bunch of otherwise innocuous Top Secret documents.

Perhaps the most interesting thing about this latest complaint — first voiced on the 7th day after the search — is it shows that DOJ is in contact with someone presenting themself as Trump’s lawyer.

That’s not surprising. DOJ informed Trump of the search. Even for a simple criminal case into attempting to steal the election (assuming Trump could find someone who would confess to be his lawyer), DOJ would want to have discussions about how to proceed.

In this case, however, the crimes under investigation include, at a minimum, violations of the Espionage Act. DOJ always tries to find a way to resolve those from the get-go, because prosecutions about stolen classified information are always damaging to the equities you’re trying to protect. That’s all the more true in the unprecedented case where the suspect is the former President. At a minimum, DOJ likely has or will float Trump the offer of an offramp like an 18 USC 2701 guilty plea if he cooperates to tell the government about the whereabouts of all the classified documents he stole.

And if what Trump is trying to hide in the obstruction investigation is even more damning, as his behavior suggests it might be, DOJ might actually have enough leverage to make Donny to consider such an offer.

Still, the legal quiet has been making me nervous. I have been waiting all week for a docket to spring up with a Trump motion for a Temporary Restraining Order stalling any access to these files.

For comparison, the docket on a similar challenge from Michael Cohen in 2018 was created just 4 days after the search of his residences, and the discussions about the search began that same day.

On the same day as the seizures (April 9, 2018), the undersigned counsel requested in writing that the U.S. Attorney’s Office for the SDNY return all of the seized property and allow Mr. Cohen and his attorneys the opportunity to screen the materials for privilege, produce any relevant, non-privileged documents to the government, and provide a log of any documents withheld on privilege grounds. Id., ¶ 32, Ex. A. On Wednesday, April 11, 2018, the government responded by letter, rejecting defense counsel’s proposal and informing defense counsel that the government would begin to review the materials at noon on Friday, April 13, 2018. Id. ¶ 33, Ex. B. Accordingly, Mr. Cohen hereby moves for immediate injunctive and equitable relief seeking the opportunity to have his counsel review the seized documents in the first instance, before any review by any law enforcement personnel, for privilege and responsiveness, and, if the Court believes it necessary, for the appointment of a Special Master to supervise that review process.

Trump moved to intervene that same day, April 13, just four days after the seizures.

In the case of the search on Rudy’s phones, SDNY itself asked for a Special Master the next day (though Trump never intervened).

There have to be similar discussions going on now. There just have to be. Trump’s paucity of lawyers — and the conflict posed by the possibility that Evan Corcoran, his most competent current defense attorney, may be conflicted out by dint of having signed an affirmation that Trump turned over all his classified documents in June — cannot explain a full week delay.

But thus far, in spite of every media outlet and their mother filing motions to unseal the search affidavit itself, no one has started pushing to unseal an inevitable fight over access to the seized material. (Again, by comparison, the NYT filed to intervene the day the Cohen warrant docket was made public.)

So for whatever reasons, a full week has elapsed since a lawful search executed on the golf resort of the former President and the first we’re learning about legal discussions — aside from NYT’s revelation that Trump made a veiled threat against Merrick Garland on Thursday — is Trump’s complaint covering just the documents that don’t seem to implicate the Espionage Act.

Something has caused that discussion to remain sealed. And that, by itself, is remarkable.

Update: As klynn reminds in comments, another document that the Trump White House altered was the MemCon of the meeting between Trump and Sergey Lavrov in which he gave the Russians highly sensitive intelligence. I laid out what we know of that alteration, the fall-out, and Mueller’s investigation into it here. If my theory about the SSA receipt is right, that any remaining unaltered record of the meeting found at MAL would be on the SSA receipt. Except the alterations, in this case, are not yet known to involve an attorney, so would not be attorney-client privileged.

emptywheel Trump Espionage coverage

Trump’s Timid (Non-Legal) Complaints about Attorney-Client Privilege

18 USC 793e in the Time of Shadow Brokers and Donald Trump

[from Rayne] Other Possible Classified Materials in Trump’s Safe

Trump’s Stolen Documents

John Solomon and Kash Patel May Be Implicated in the FBI’s Trump-Related Espionage Act Investigation

[from Peterr] Merrick Garland Preaches to an Overseas Audience

Three Ways Merrick Garland and DOJ Spoke of Trump as if He Might Be Indicted

The Legal and Political Significance of Nuclear Document[s] Trump Is Suspected to Have Stolen

Merrick Garland Calls Trump’s Bluff

Trump Keeps Using the Word “Cooperate.” I Do Not Think That Word Means What Trump Wants the Press To Think It Means

[from Rayne] Expected Response is Expected: Trump and Right-Wing DARVO

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