Papadopoulos’ testimony to Mueller provides further evidence that Sessions has committed perjury; why Sessions stays on, despite all the abuse; a close read of the sentencing documents by the government and Papadopoulos, and what they mean for the Mueller investigation.
1/ The bombshell news on Friday was the publication of Papadopoulos’ sentencing memo (responding to the government’s sentencing memo), in which Papadopoulos asserts that in the 31 Mar 2016 meeting of Trump’s national security team, he told the meeting that he had contacts who could help make a meeting between Trump and Putin happen. In his memo, Papadopoulos claims that Trump and Sessions both signalled that they approved of his plans to pursue the proposal.
This directly contradicts Sessions’ sworn testimony before Congress. (Trump hasn’t given any sworn testimony yet; that sort of thing is currently under discussion and negotiation with the Office of Special Counsel.) Sessions, the head of the campaign’s natsec committee at the time, failed to reveal that discussion in his testimony to Congress (saying he did not recall it) and then on a later occasion (having recovered his memory) saying that he did recall it, but that he had pushed back against the proposal on the grounds that he did not want someone so unqualified to represent the campaign on such a sensitive matter. We now know that in his testimony to the FBI and Mueller, Papadopoulos has directly contradicted Session’s statements about the meeting (as in fact have several others who attended that meeting).
The accumulating evidence that Sessions has perjured himself about the Trump campaign’s contacts with Russian intermediaries and Russian government officials sheds some light on the fraught relationship between President Trump and his Attorney General. Trump has tweeted that Sessions has refused to do his job as AG because he is afraid of Mueller, and the fact that the lawyers put Papadopoulos’ allegation in his sentencing memo gives this considerable plausibility.
It also helps to explain why Sessions has refused to either resign or do as Trump wishes despite a torrent of abuse hurled at him in Trump tweets and in unrestrained vilification of Sessions by Trump’s attack dogs at Fox News and other conservative media outlets. Clearly, Mueller has something over Sessions. At the very least, Sessions has exposure for perjury. That being the case, the safest place for Sessions right now is his present one — as Attorney General, but as an AG who has recused himself over all things pertaining to the Mueller probe. In that position, he is providing important protection to the Mueller probe and others in the FBI and DOJ like Rod Rosenstein. It’s certainly not a plea agreement arrangement, but it serves much the same purpose for both Sessions and Mueller.
Mueller understands (as we all do) that Trump appointed Sessions to the position of AG because he expected loyalty from him and protection from the FBI’s investigation of Russian interference in the election and of any ties between the campaign and Russia. Trump’s not getting that from Sessions, and it infuriates him. Sessions builds credit with Mueller every day by standing up to a stream of taunts and invectives by Trump and his minions.
Ironically, Sessions’ exposure for perjury makes it even harder for Trump to get rid of Sessions than it would be get rid of any other AG he might have appointed. It’s certainly hard to imagine any other AG being willing to put up with the kind of abuse that Sessions has been receiving from Trump, and it’s clearer now why Sessions has done it.
2/ While the Papadopoulos allegation about Trump and Sessions has received almost all the attention, it is by no means the only thing of interest in the sentencing memos by the government and Papadopoulos. In fact, arguably the most interesting thing is the news that Papadopoulos’ plea agreement was not a standard cooperation agreement. (Mueller has told the court that Papadopoulos has not been cooperative.) There is also evidence from the court documents that Papadopoulos has criminal liability for being a conspirator during the campaign (aka “colluder”), and that the government’s sentencing memo was written by Mueller with a possible future conspiracy indictment of Papadopoulos very much in mind.
Here are links to the documents that are needed for the discussion:
[RGA] Affidavit, Robert M. Gibbs, Special Agent, FBI (2017–07–28): http://tinyurl.com/ydxrgdjj
[PSO] Papadopoulos — Statement of the Offense (2017–10–05): https://www.justice.gov/file/1007346/download
[PPA] Papadopoulos — Plea Agreement (2017–10–05): http://tinyurl.com/ycp3aeay
[PSM] Papadopoulos sentencing memo (2018–08–17): http://tinyurl.com/ybbv4zfh
[PDSM] Papadopoulos defense sentencing memo (2018–08–31): http://tinyurl.com/yc6f6hul
[Note: There is another relevant document called the Presentence Investigation Report or PSR. This has not been published and in fact is never a publicly available document, though it is available to the defense, the plaintiff, and of course the judge in the case.]
Let us begin by placing Papadopoulos’ dealings with the FBI and Mueller into a timeline that provides a context.
Papadopoulos’ first contact with the FBI occurred on 27 Jan 2017. By this time the Steele dossier alleging a well-developed conspiracy between the Trump campaign and Russia had been published by BuzzFeed (on 10 January 2017). This and other developments had led to a raging national debate about whether there had been collusion (more properly “conspiracy”) between the Trump campaign and Russia during the election.
Two agents from the Chicago office of the FBI contacted Papadopoulos at his mother’s residence in Chicago on 27 January 2017 and asked him to accompany them to the FBI’s Chicago office. Papadopoulos thought [PDSM] that they wanted to ask him about Sergei Millian, who was widely thought to have been one of the sources mentioned by Steele in his dossier.
Beginning about twenty minutes into the interview, PDSM asserts, the agents asked Papadopoulos whether “Millian was connected to Russia or a foreign intelligence service, and who else on Mr. Trump’s campaign may have been in contact with Mr. Millian.” PDSM asserts (implausibly) that Millian was surprised by these questions. If he was, he shouldn’t have been, because one would have expected the FBI to ask these questions, given that they knew that Papadopoulos had had contacts with Millian and in view of the allegations in the Steele memo about Millian (Source D of the dossier). The two FBI agents had assured Papadopoulos that his answers would be treated confidentially, and the PDSM asserts that he “answered their questions honestly.”
But it is abundantly clear from RGA, PSO, and PSM that Papadopoulos did not answer the agents’ questions honestly. On the contrary, he lied repeatedly on 27 January 2017, and also omitted important material facts. PSM also asserts that Papadopoulos’ “false statements were intended to harm the investigation, and did so.” Although PDSM disputes the claim that Papadopoulos intended to harm the investigation, it is impossible to read the documents and believe that this wasn’t his intention.
PSM says: “The government cannot definitively know what motivated the defendant to lie to the agents on January 27, 2017.” That isn’t surprising, as intention or motive is a very hard thing for prosecutors to establish. But I think it is possible to tease out a definite pattern to what Papadopoulos was willing to disclose and what he wasn’t; where he was willing to be forthcoming and where he deliberately deceived.
Basically and in broad outline, Papadopoulos was willing on 27 January 2017 to tell the government that he had been actively involved in trying to set up a high level meeting between the Trump campaign and Russia (specifically, between Trump himself and Putin). At first, he wasn’t even honest about this. He did not volunteer the crucial information about his contacts with Mifsud to the agents; that had to be teased out of him by the FBI agents. Additionally, he lied to the agents about when his contacts with Mifsud occurred. Initially he told them that they had occurred before he joined the Trump campaign in March. That was a lie. But under pressure and probing by the agents, and in a later interview with the FBI the next month (February), and in four meetings much later with the Mueller team after his arrest on 27 July 2017, Papadopoulos did tell the government a good deal about his contacts with Mifsud and the Russians and the attempts he had made (which he said had the blessing of high officials in the Trump campaign) to arrange a meeting between Trump and Putin. (It is not clear, however, how much, if anything, Papadopoulos told the government on these occasions that the government didn’t already know.)
What Papadopoulos was unwilling to do was tell the government anything suggestive of Trump-Russia conspiracy (aka “collusion”). The government was undoubtedly interested in hearing what Papadopoulos had to tell them about his efforts to set up a high level meeting between Trump and Putin, but efforts to arrange such a meeting would not reach the question of conspiracy to collude, as it is not unlawful (though it might be politically unwise) for a campaign to arrange a meeting with the leader of a foreign nation.
Papadopoulos was told by Mifsud in April 2016 — two months before the first tranche of Clinton emails was released by Wikileaks — that the Russians had “dirt” on HIllary in the form of “thousands” of her emails. Those emails would have had to been hacked (i.e., obtained illegally). Papadopoulos would have understood this, and he would have also understood that the Trump campaign would be much more threatened by a charge of conspiracy if it did have foreknowledge of the emails and the Kremlin’s plans to disseminate them. Papadopoulos’ position on this question has been clear and consistent throughout. He has claimed that he and the campaign are innocent of the charge of collusion. To be more precise, Papadopoulos has consistently denied that he participated in any collusion, and has denied that he knows of anyone else in the campaign who did.
It is important to keep in mind the background of Papadopoulos’ questioning by the Chicago office of the FBI on 27 January 2017, and what his mindset must have been on that occasion. The whole country — or at least the politically aware section of it — was agog with opinions and news reports about the allegations in the dossier that had been published a couple of weeks earlier. According to Steele, by July of 2016 there was a “well-established” Trump Russian conspiracy that was being managed for Trump by Paul Manafort. Steele also claimed that it was well known in campaign circles that Russians had hacked the DNC emails. We know (from the government’s sentencing document) that Papadopoulos was well aware in January of this national conversation, and it is clear that he made the decision on 27 January 2017 — if not before, in the event that he was ever asked — to deny that there was collusion.
Papadopoulos did tell the FBI about his efforts (albeit under pressure and probing, and while initially lying about the timing of his contacts and efforts) that he had worked to arrange the high level meeting, but did not admit to anything more. And Papadopoulos also modified what he was willing to say about Mifsud’s information about the emails. In PDSM (pp. 11–12) we learn that the government “did ask if George provided the information [i.e., about the email “dirt” on Clinton] to the campaign and George denied [emphasis mine] ever doing so.” That must have been sometime in the January or February interviews. But we also learn from PDSM (ibid.) that “In his later proffer sessions [i.e., after his arrest in July 2017], George reiterated that he does not recall [emphasis mine] ever passing the information along to the campaign.”
Note the transition from categorically denying that he did (and that in the first interview he didn’t even have a lawyer present) and the later statement in the proffer sessions that “he does not recall” ever having done so. “Does not recall” is the preferred language of every defendant in such situations.
The single most important point to note, though, is that the claim that Papadopoulos did not tell the campaign about the Clinton emails is utterly implausible on its face. It is made even more absurd by Papadopoulos’ assertion (in PDSM) that he did relay to the Greek Foreign Minister what he had been told by Mifsud on a campaign-approved trip to Greece, two days before Putin made a trip to Greece himself.
Admittedly, what Papadopoulos has told Mueller about what he said and did in Greece does fit the general picture of a Papadopoulos willing — even eager — to tell about all meetings he had had all over the world with the approval of the campaign. But it is preposterous that Papadopoulos told a government official in Greece (as well as U.K. High Commissioner Alexander Downer) about the emails but never told high campaign officials about them.
Mueller does not believe that Papadopolous didn’t convey Mifsud’s information about the emails to the campaign, and you shouldn’t either.
We know that Mueller doesn’t believe that he didn’t because of some details that can be found in the court documents.
Mueller alleges [PDM, p. 7] that
To anyone paying attention (which of course would include Judge Randolph D. Moss) this raises the question: what did the defendant do with the information [about the emails] after receiving it?
At the very least, the language of the government’s sentencing document suggests that this is an unresolved question, and that simple fact impugns Papadopoulos, at least implicitly. The government slams Papadopoulos for having given it a false timeline; as a consequence, the government says, it missed the opportunity to detain Mifsud on a visit he had made to the U.S. that would have enabled them to see what Mifsud would tell them about the emails, and what Mifsud thought Papadopoulos had done with them, if anything.
Papadopoulos’ lawyers, in an interesting passage in PDSM, contested the government’s claim that Papadopoulos’ lies and omissions of material facts had damaged the investigation in the ways alleged (p. 11).
“The Government’s argument is speculative at best as it has not shown counsel nor the Court any evidence tending to show its investigation was actually hindered in the manner described.”
And (ibid):
It is important to note that Papadopoulos and his lawyers were pretty much forced to address the issue because of what the government had already said on the matter in its own sentencing document. We also know from PDSM (p. 11) that in the proffer sessions after his arrest this very matter had been raised and that Papadopoulos had denied recalling ever passing the email information on to the campaign.
We likely could have inferred something very much like this from the government’s sentencing document and in other ways, but we would not have known it so clearly without the statement in PDSM by Papadopoulos’ lawyers, because the defense’s sentencing document cites matter from the proffer sessions, and documents about these sessions, like the Presentence Investigation Reports, are not published or released to the public.
It is worth noting this point because Marcy Wheeler (@emptywheel) has argued that this passage in PDSM amounts to an appeal from Papadopoulos to Trump to pardon him. Its inclusion, she says, explicitly informed Trump that Papadopoulos had protected him and others in the campaign from the charge of collusion, even at the price of the utterly implausible claim that he did not pass Mifsud’s info about the emails to anyone in the campaign.
Wheeler contends that there was no other reason for Papadopoulos’ lawyers to have included this information in their sentencing memo, so its inclusion must have been intended by Papadopoulos and his lawyers solely to send a signal and appeal to Trump for a pardon.
“The most important sentences in the sentencing memo — which have no purpose in an actual sentencing memo — are his revelations that he kept denying that he had told the campaign that Russia was planning on releasing emails stolen from Hillary.”
and
“The introduction to the second of these mentions in fact serves no other purpose than to provide an excuse to repeat, again, in case Trump missed it the first time, that Papadopoulos lied and continued to lie about telling the campaign about the emails.”
I do not wish to dismiss Wheeler’s suggestion entirely. The desire for a pardon may in fact have been one of the things in play. However, Wheeler’s argument for it is weaker than she seems to think it is, because it rests on the claim that there was no reason other than appealing for a pardon for including the information about what transpired in the proffer sessions.
This is untenable. One would naturally expect the defense’s sentencing document to respond to all the points raised, insinuated, or implied by the plaintiff. In particular, it was incumbent on Papadopoulos’ lawyers to respond to an insinuation that is present in the the government’s sentencing document, and is present even more explicitly in the documents about the proffer sessions. (Both are documents that the judge in the case would see, though the public would not see the documents about the proffer sessions.) So one would naturally expect the defense to respond to the insinuations in PSM in its own PDSM.
Where else would the lawyers for the defense make such a response: in camera? What they did instead was to reiterate in Papadopoulos’ own sentencing document that he could not recall having passed info about the Clinton emails to anyone in the campaign. And they were doing what any good defense lawyer would do in that situation, because the government had implied in its sentencing document that it did not accept Papadopoulos’ testimony that he had not passed on the email information.
Since the government had not produced any evidence to impugn Papadopoulos’ denial, the way was clear for the defense to reiterate their client’s denials concerning the emails. The point was to rebut the government’s claim that the lies that Papadopoulos had told and the material omissions he had made had damaged the government’s attempts to obtain testimony from Mifsud in order to confirm whether Papadopoulos had been fully cooperative with the FBI about the emails. In responding in the way they did, the lawyers for the defense were acting appropriately and competently.
Of course, the more fundamental issue is that the claim that Papadopoulos did not convey MIfsud’s info to the campaign is totally implausible on its face. But that claim was Papadopoulos’ decision to make, not his lawyers, and it is part and parcel of his decision to claim that there was no collusion with Russia by him or anyone else in the campaign — or at least that he did not know of any.
There is some reason to think that before the filing of SDM on Friday Papadopoulos was having second thoughts about that decision. On August 20 — three days after the filing of PSM, and 11 days before the filing of PDSM, Papadopoulos tweeted: “Been a hell of a year. Decisions.”
Media commentary assumed that this was a reference to a recommendation his wife had recently made that Papadopoulos withdraw his plea agreement and use a deep state conspiracy theory to challenge Mueller legally on the grounds that her husband had been spied on by the government. But Papadopoulos never endorsed that idea (not publicly at least), and it was a truly harebrained idea anyway. Mangiante’s plea for financial help or for a pro bono lawyer to pursue the matter went nowhere quickly, and Papadopoulos’ lawyers undoubtedly recommended against the idea.
It seems much more likely that the big decision that Papadopoulos was referring to was whether or not to fully cooperate with Mueller. This is something that Mueller had said three days previously in PSM (and providing evidence on pp. 7–8): that Papadopoulos had never fulfilled the obligations of a cooperating witness. But fully cooperating with Mueller would undoubtedly have entailed admitting to conspiracy with the campaign over the emails. In the event, Papadopoulos has declined the opportunity to cooperate with Mueller on matters involving the emails, or in fact on anything touching on matters of collusion.
This is a big gamble on Papadopoulos’ part, because it wagers that Mueller will not be able to prove without Papadopoulos’ cooperation that there was collusion; that Papadopoulos was involved in it; and that he did in fact pass the info that he had received from Mifsud about the “dirt” on Clinton to the campaign.
This is not a wager that any rational person would make.
Everyone who has reported on interview sessions with Team Mueller has been awestruck by Team Mueller’s attention to detail and command of the facts. As Michael Caputo said when he described his own interview: “They know more about the Trump campaign than anyone who ever worked there” and: “The Senate and the House are net fishing… The special counsel is spearfishing. They know what they are aiming at and are deadly accurate.”
Apparently, Papadopoulos himself experienced this sort of thing first-hand in his proffer sessions with the special counsel. At PSM p. 8 we learn that:
The defendant did not provide “substantial assistance,” and much of the information provided by the defendant came only after the government confronted him with his own emails, text messages, internet search history, and other information it had obtained via search warrants and subpoenas well after the defendant’s FBI interview as the government continued its investigation.
Since the proffer sessions, which took place a year ago (in the summer of last year), Team Mueller has had time to interview even more people, including members of the campaign team who were likely recipients of the emails that Papadopoulos must have sent to the campaign about the email “dirt” on Clinton that Mifsud had told him about.
Mueller has not indicted Papadopoulos for conspiracy. Indeed, as Trump’s defenders and Mueller’s critics are never tired of telling us, Mueller hasn’t indicted anyone yet for conspiracy (aka collusion). But that doesn’t mean that he won’t. As I have argued at length elsewhere, there is a good reason why he hasn’t done so yet. Mueller’s M.O., which he honed to perfection during his entire professional life as a federal prosecutor, is to flip his way up the ladder or chain of command. In the Russia matter, he has clearly been doing this to position himself with all the witness testimony he needs to get convictions for conspiracy indictments.
Those indictments are certainly coming. And when they do, Mueller will present all the evidence that he needs to show that Papadopoulos did in fact disseminate Mifsud’s info about the Clinton emails to the Trump campaign, and Papadopoulos will be one of the many campaign members indicted for conspiracy.
By refusing to cooperate with Mueller on the question of collusion, Papadopoulos has lashed himself to the mast. In the end, this will result in Papadopoulos spending a lot more time in jail than the maximum of six months he will get on September 7 for the one count of having lied to the FBI about when he had dealings with Prof. Mifsud.
For Papadopoulos, the worst is yet to come.
