Lev Parnas and the “Very Harsh Message”: A Look at the Evidence That Corroborates the May 12 Meeting

In interviews with Rachel Maddow and Anderson Cooper, Lev Parnas made a number of explosive claims. For purposes of the impeachment proceedings against President Trump, however, one of the most critical parts of Parnas’s story has to do with a meeting that took place in Kyiv on May 12, 2019. This May 12 meeting, according to Parnas, was one of two occasions in which, while acting on President Trump’s behalf, he delivered an explicit quid pro quo to Ukrainian officials. The first meeting had been in February, at a meeting with then-President Petro Poroshenko. The second meeting, the one on May 12, occurred in the wake of Rudy Giuliani canceled trip to Ukraine. According to Parnas, on the instructions of Giuliani and Trump, Parnas and his business partner Igor Fruman arranged to meet with Sergey Shefir, senior advisor to President-Elect Volodymyr Zelensky. Parnas says that, at this meeting, he delivered a “very harsh message” to Zelensky’s aid: announce the Biden investigations, or else Ukraine would face consequences.

Although the existence of the May 12 meeting has been known about for some time – it was first reported on over two months ago, in November of 2019 – it has received relatively little attention compared to some of Parnas’s other claims. However, the May 12 meeting is significant because of its potential to be corroborated by an extensive documentary record. And, unlike most the documents relevant to the impeachment proceedings against President Trump, the documents that have the power to corroborate Parnas’s claims are outside of the White House’s sole possession and control. In fact, if Parnas’s claims are true, then much of what he has described about the May 12 meeting should be corroborated by records already in the possession of the House Permanent Select Committee on Intelligence. And, in addition to what the HPSCI already possess, thousands more pages are likely to become available as criminal proceedings against Parnas and his co-defendants continue. Although production is still ongoing, in letters to the court the Government has noted that, so far, it has produced over 100,000 pages of discovery to defendants, including “thousands of pages of materials obtained pursuant to grand jury subpoenas or voluntary requests and full copies of their own email accounts, social media accounts, and device extractions (to the extent available) that were obtained by the Government pursuant to search warrants.”

Although only a fraction of the total record has been made public so far, the documents that are available already provide extensive corroboration for Parnas’s claims about the May 12 meeting. This post will provide a detailed look at the current record, and how it compares to what Parnas has described.

Events Leading up to the May 12 Meeting

The May 12 meeting was a small but important part of President Trump’s scheme to coerce Ukraine into announcing meritless criminal investigations into his political rivals. This scheme – referred to here as “the Ukraine Scheme,” for brevity’s sake – involved numerous actors with overlapping interests in Ukraine, but the primary participants of the May 12 meeting were Lev Parnas, Igor Fruman, and Rudy Giuliani. Beginning in at least November 2018, the three men had worked closely together in their efforts to secure an announcement of a Biden investigation from the Ukrainian president. These efforts are documented in the WhatsApp messages obtained by federal investigators from Parnas’s phone, and that were produced by Parnas to the HPSCI in mid-January.

These WhatsApp conversations detail the Ukraine Scheme’s failed efforts in the spring of 2019 to secure the announcement of a Biden investigation. The messages show that, although the May 12 meeting had not been part of the original plan, it became necessary after a series of failures and set-backs had blocked the Ukraine Scheme from establishing a back channel to President-Elect Zelensky.

The Failed Attempt at a Poroshenko Quid Pro Quo

One of the major roadblocks to the Ukraine Scheme’s plans for a Biden investigation was the 2019 Ukrainian presidential election. In February, when Parnas first met with then-President Poroshenko to offer a quid pro quo of support in the upcoming election in exchange for the announcement of a Biden election, the first round of the Ukrainian presidential election was only a month away. As a result, due to concerns about the potential domestic political impact, Poroshenko seems to have been unwilling to announce such a politically sensitive investigation at that time. Later on, in early March, members of the Ukraine Scheme arranged for a friendly journalist to interview President Poroshenko, in the hopes of obtaining a public comment on the Bidens from the Ukrainian president. In advance of the interview, Parnas sent over a list of planned questions for President Poroshenko to review, which included the following:

As WhatsApp messages between Parnas and then-Prosecutor General of Ukraine Yuriy Lutsenko show, however, the Poroshenko administration rebuffed this request:

If there were plans to have Poroshenko announce the Biden investigation after the Ukrainian election, those plans fell apart when it became clear that President Poroshenko’s odds of winning reelection were grim. On April 21, President Poroshenko was voted out of office, and his opponent, Volodymyr Zelensky, won in a landslide victory with over 73% of the vote.

The Ukraine Scheme had not been caught completely off guard by Zelensky’s election, however. In early April of 2019, when it became clear that Poroshenko was unlikely to win re-election and Zelensky was likely to be the next president of Ukraine, Parnas and Fruman were dispatched on a mission to Israel. This was actually the first of two trips that Parnas and Fruman would make to Israel that month. The second trip – which took place three weeks later on April 23, days after Zelensky’s election – has been widely reported on, and the purpose was for Parnas and Fruman to meet with Ihor Kolomoisky, a Ukrainian billionaire who had fled to Israel as a result of his conflicts with President Poroshenko’s administration. Kolomoisky is also a long-standing ally and patron of Zelensky, and was believed to hold substantial influence with the incoming administration.

As Kolomoisky later described in interviews, the purpose of Parnas and Fruman’s second trip to Israel was to develop a back channel of communication with Zelensky, in order to convince the incoming president to announce the Biden investigation:

“Look, there is Giuliani, and there [are] two clowns, Lev Parnas and Igor Fruman, who were milking the bull here. They are Giuliani’s clients. … They came here and told us that they would organize a meeting with Zelensky. They allegedly struck a deal with [Prosecutor-general Yuriy] Lutsenko about the fate of this criminal case – Burisma, [former vice president] Biden, meddling in the U.S. election and so on.”

Parnas and Fruman did not receive a warm welcome from Kolomoisky, however:

Fruman and Parnas were introduced to the oligarch by Alexander Levin, another pro-Trump Ukrainian-American businessman, on the pretence that they wanted to talk about their plan to sell gas to Ukraine, Kolomoisky said in an interview.

However, once inside the meeting, the two men told Kolomoisky that they wanted his help getting in touch with Zelensky, in order to help set up a meeting between Giuliani and the president-elect.

Offended, Kolomoisky said, he then stormed out of the meeting.

“I told them I am not going to be a middleman in anybody’s meetings with Zelensky,” Kolomoisky said. “Not for them, not for anybody else. They tried to say something like, ‘Hey, we are serious people here. Giuliani. Trump.’ They started throwing names at me.”

Although Kolomoisky’s comments are presumed to be in reference to Parnas and Fruman’s second Israel trip, the WhatsApp messages confirm that there had in fact been another, earlier trip to Israel, which took place on or about April 3. And, as confirmed by Parnas’s messages another of the scheme’s participants, attorney Victoria Toensing, this first April trip to Israel was also a part of the Ukraine Scheme:

Although the details surrounding Parnas’s and Fruman’s first April trip to Israel have not yet been reported on, Parnas, should he given the opportunity to testify before the Senate, would presumably be able to provide more complete explanation of the pair’s activities there. However, it is probable that the purpose of the first Israel trip, like the second trip, was to meet with Kolomoisky in an effort to develop a backchannel to the likely next president of Ukraine.[1] If that is the case, then the available record would suggest that Parnas and Fruman’s first trip to Israel met with no more success than the second trip did.[2]

Giuliani’s Failed Trip to Ukraine

In the first two weeks following Zelensky’s election, the Ukraine Scheme tried, but failed, to develop a backchannel to the President-Elect. By early May, a new plan was put together: rather than rely on Parnas and Fruman to set up a channel of communication with the incoming administration, Giuliani himself would travel to Ukraine to meet with Zelensky. The trip was scheduled to take place from May 12-15, and, as Giuliani told the New York Times, the explicit purpose of this visit was to convince the incoming Ukrainian president to open a criminal investigation into President Trump’s political rival, Joe Biden:

“I am going to tell [Zelensky] what I know about the people that are surrounding him, and how important it is to do a full, complete and fair investigation.”  . . .

“There’s nothing illegal about it,” he said. “Somebody could say it’s improper. And this isn’t foreign policy — I’m asking them to do an investigation that they’re doing already and that other people are telling them to stop. And I’m going to give them reasons why they shouldn’t stop it because that information will be very, very helpful to my client, and may turn out to be helpful to my government.”

To prepare for Giuliani’s trip, Parnas began reaching out to Ukrainian officials to ask for their help in arranging a meeting between Giuliani and President-Elect Zelensky. In particular, Parnas worked closely with Arsen Avakov, the Ukrainian Minister of Internal Affairs, who had served under the Poroshenko administration, but would remain in office under President Zelensky administration.

Parnas also reached out to Ivan Bakanov, a close ally of Zelensky’s, in an attempt to arrange for a pre-trip call between Giuliani and the President-Elect’s team. Those messages reveal that the incoming Zelensky administration took Parnas seriously enough to ensure that his messages were relayed to Zelensky:

Shortly before Giuliani’s scheduled trip to Ukraine, however, Bakanov suddenly cut off Parnas. His last message – a deleted message, contents unknown – was sent on May 6:

It is possible Bakanov’s decision to cut off communications with Parnas was part of a new strategy adopted by the incoming administration, during a special meeting that President-Elect Zelensky quietly convened on May 7 to discuss how the incoming administration should respond to President Trump’s efforts to pressure Zelensky into announcing an investigation into Joe Biden:

Volodymyr Zelenskiy gathered a small group of advisers on May 7 in Kyiv for a meeting that was supposed to be about his nation’s energy needs. Instead, the group spent most of the three-hour discussion talking about how to navigate the insistence from Trump and his personal lawyer Rudy Giuliani for a probe and how to avoid becoming entangled in the American elections, according to three people familiar with the details of the meeting.

On that same day, several members of the Ukraine scheme – including Giuliani, Parnas, Derek Harvey, and John Solomon – had themselves gathered for a meeting at the Trump Hotel in DC, where they discussed their plans to obtain the announcement of a Biden investigation. As Parnas’s exchanges with former Devin Nunes aide Derek Harvey show, Parnas took off for Kyiv the following day:

The plan was for Giuliani to join Parnas in Ukraine four days later, on May 12. In the meantime, Parnas would scout ahead in Kyiv, and work on scheduling a meeting between Giuliani and President-Elect Zelensky.

May 10: Parnas Delivers Giuliani’s letter to the President-Elect

WhatsApp messages show that on May 10, Parnas made plans with Interior Minister Arsen Avakov to meet that afternoon, at approximately 2:30pm, Kyiv time. The apparent purpose of this meeting was for Parnas to pass on a letter, which Avakov could then have delivered to the President-Elect. The letter – which was dated May 10, 2019, and copied to Avakov – was from Giuliani, who identified himself as “private counsel” to President Trump. Giuliani’s letter stressed this point repeatedly, noting that Giuliani “represent[ed] [Trump] as a private citizen, not as President of the United States,” and that, in seeking a meeting with Zelensky, he was acting in his “capacity as personal counsel to President Trump and with his knowledge and consent.” To that end, Giuliani wrote, he was requesting a brief meeting with President-Elect Zelensky on either May 13 or May 14.

Things did not go as planned. Approximately 12 hours after Parnas had delivered Giuliani’s letter to the Ukrainian officials, Giuliani made an appearance on Fox News to announce that he had called off his planned trip to Ukraine, and complained that President-Elect Zelensky was “in the hands of people who are avowed enemies of the [U.S.] President.” The following day, May 11, Giuliani released a more detailed explanation of his reasoning. Canceling the meeting with Zelensky had been necessary, Giuliani claimed, because “the President elect is being advised by people who were very vocal opponents of President Trump,” and “under these circumstances the meeting would have accomplished little and may be in the hands of those who might misrepresent it.”

Contrary to Giuliani’s claims that he was the one who canceled the meeting with Zelensky, however, the WhatsApp exchanges between Giuliani and Parnas suggest an all together different explanation for why the meeting was called off – that it was Zelensky who had refused to meet with Giuliani, and not the other way around.

May 11: Meetings with Lutsenko

After Giuliani’s trip to Kyiv was canceled, the Ukraine Scheme seems to have been scrambling to come up with a new plan. Giuliani, still in the States, made the rounds on cable news to decry the enemies in Zelensky’s cabinet, and talk about how important it was for there to be an investigation into Joe Biden. Meanwhile, Parnas remained in Kyiv and continued with his efforts to connect with President-Elect Zelensky. WhatsApp records from Parnas’s phone show that, on May 11, Parnas was in close contact with Prosecutor General Lutsenko throughout the day. The two of them met up on at least two separate occasions that day, once early that afternoon and once again that evening.

And, in between those two meetings, at 3:24pm Kyiv time, Parnas sent Lutsenko an intriguing series of WhatsApp messages:

Parnas sent Lutsenko the full text of a press release from Giuliani, and instructed Lutsenko to “read [this] to the person you are meeting now.” Although Parnas’s messages don’t identify by name who Lutsenko was meeting with at that time, Lutsenko later told Ukrainian media about the nature of this meeting. These statements from Lutsenko were later included in the whistleblower’s report:

It was President-Elect Zelensky that Parnas was requesting Lutsenko communicate with on his behalf.

WhatsApp messages show that, following Lutsenko’s meeting with Zelensky, Lutsenko and Parnas met up once again – and, presumably, the two of them discussed what had transpired at the meeting with Zelensky. A few hours later, Parnas would send his first WhatsApp message to Sergey Shefir, senior advisor to the President-Elect.

It is not clear how exactly Parnas obtained Shefir’s number, but it seems that, even prior to Parnas’s message, it had already been agreed that Parnas and Shefir would meet. In his message to Shefir, Parnas introduced himself as a “friend of Mayor Giuliani,” and passed along a copy of Giuliani’s letter to Zelensky:

Later that evening, at 9:08pm, Kyiv time, Parnas and Shefir confirmed plans for the two of them to meet the following morning, at the Restaurant Prague:

This meeting would be the May 12 meeting that Parnas spoke of in his interviews with Maddow and Cooper.

May 12: The Meeting at the Restaurant Prague

In his interview with Rachel Maddow, Parnas gave his most detailed account yet of what actually took place at the May 12 meeting:

PARNAS: . . .  Basically, the message that I was supposed – that I gave Sergiy Shefir was a very harsh message. I was told to give it to him in a very harsh way, not in a pleasant way.

MADDOW: Who told you to give it to him a harsh way?

PARNAS: Mayor Giuliani, Rudy, told me after, you know, meeting with the president at the White House. He called me. The message was, it wasn’t just military aid, it was all aid. Basically their relationships would be sour, that he would – that we would stop giving them any kind of aid that –

MADDOW: Unless?

PARNAS: – unless that there was announcement made – it was several things. There were several demands at that point. A, the most important was the announcement of the Biden investigation.

MADDOW: Did you also convey to him that the U.S. government would stop showing support for Mr. Zelensky, that they wouldn’t attend the inauguration? Or that –

. . .

PARNAS: At our meeting, I was very, very stern. It was a heated conversation from our part to him, basically telling him what needs to be done. I mean, basically me. And at the – at – in the conversation, I told him that if he doesn’t – the announcement was the key at that time because of the inauguration, that Pence would not show up. Nobody would show up to his inauguration.

. . .

PARNAS: Particularly Vice President Mike Pence.

MADDOW: So, the day after that meeting that you had with Mr. Shaffer –

PARNAS: This was Sunday, Sunday the 12th.

MADDOW: I believe it was the following day that, in fact, Vice President Pence’s visit to the inauguration was canceled.

PARNAS: It was after my phone call. The conversation I laid out to Mr. Shaffer was basically what I was told to do by Giuliani and the president.

In addition to his interview on The Rachel Maddow Show, Parnas also gave a second, shorter, interview with CNN’s Anderson Cooper, in which Parnas described the May 12 meeting in similar terms:

COOPER: And what’s the message you deliver [at the May 12 meeting]?

PARNAS: I basically told them very strict, and very stern, several things. A, that he needed to make an announcement, to immediately make an announcement literally that night or tomorrow, that within the next 24 hours, that they were opening up an investigation on Biden.

COOPER: At that point, was there any mention of withholding of aid?

PARNAS: Yes. Well, if they didn’t make the announcement, basically, there would be no relationship. Not just to – it was no specific military, there was no way they were going to be assisted. There was going to be no inauguration. Pence wouldn’t be at the inauguration. And there would be no visit to the White House. There would be basically – they would have no communications.

COOPER: So how, you told the top official in the Zelensky inner circle if they did not announce an investigation of the Bidens immediately and get rid of some folks around Zelensky who they believed were opposed to President Trump, that there wouldn’t be any aid and Vice President Pence would not even come to the inauguration?

PARNAS: Correct.

COOPER: And what happened? What did they say?

PARNAS: I called Rudy, told them that I don’t think it’s going to – there is going to be an announcement. And he said, OK, they’ll see.

Parnas’s claims, if corroborated, would show President Trump’s direct involvement in a scheme to use the powers of his office to coerce Ukraine into providing assistance to his 2020 campaign. The key phrase there being, of course, “if corroborated.”

Summary of Events Surrounding the May 12 Meeting

Below is summary of relevant events leading up to, and following, Parnas’s May 12 meeting in Kyiv. Events that have been established either by the existing documentary record or by undisputed witness testimony are below in regular font, while events based on Parnas’s account of events – and in need of corroboration – are in bold.

May 10:

  • Sometime around midday, Kyiv time, Parnas meets with Arsen Avakov, the Ukrainian Minister of Internal Affairs. Parnas gives Avakov Giuliani’s letter, with instructions to pass the letter on to Present-Elect Zelensky. In the letter, Giuliani requests a meeting with President-Elect Zelensky on either May 13 or May 14. According to Giuliani’s contemporaneous statements to reporters, his purpose in seeking a meeting with Zelensky is to ask the President-Elect to open an investigation into Joe Biden.
  • Giuliani’s efforts to arrange a meeting with Zelensky fail.
  • Giuliani goes on Fox News and announces that he is calling off his trip to Ukraine, and claims that he decided against meeting with Zelensky because he is surrounded by enemies of President Trump.

May 11:

  • Shortly after noon, Kyiv time, Parnas and Prosecutor General Lutsenko meet up, apparently at Parnas’s hotel.
  • Lutsenko then attends a meeting with President-Elect Zelensky, during which Lutsenko asks Zelensky to let him keep his job as Prosecutor General.
  • At 3:24pm, Kyiv time, Parnas sends a message to Lutsenko, copying Giuliani’s press release stating that he had canceled his trip to Kyiv after “conclud[ing] that the President elect is being advised by people who were very vocal opponents of President Trump and peculiarly vocal supports of Hillary Clinton.” Parnas instructs Lutsenko to read the message out to Zelensky.
  • Following his meeting with Zelensky, Lutsenko meets with Parnas for a second time.
  • That evening, Parnas sends a WhatsApp message to Sergey Shefir, a senior advisor to Zelensky, and introduces himself. From their communications with one another, it appears that an agreement had already been reached for Parnas and Shefir to meet at some point the following day. Via WhatsApp, Shefir and Parnas make plans to meet the following morning at 10:00am.
  • According to Parnas, Giuliani has a “meeting with the president at the White House,” during which Giuliani and Trump discuss what should be done at Parnas’s meeting with Shefir. (Maddow at 7)
  • Following Giuliani’s meeting at the White House, Giuliani calls Parnas and tells him that, in his meeting the following day, Parnas should deliver a “a very harsh message.” (Maddow at 7) Parnas is to tell Shefir that Zelensky “need[s] to make an announcement, to immediately make an announcement literally that night or tomorrow, that within the next 24 hours, that they were opening up an investigation on Biden.” (Cooper at 3) Parnas says he communicated to Shefir that, should Zelensky fail to meet these demands, the entire U.S.-Ukraine relationship would be in jeopardy; not only would the U.S. would cut off assistance to Ukraine, but “Pence wouldn’t be at the inauguration. And there would be no visit to the White House. There would be basically – they would have no communications.” (Cooper at 3)

May 12:

  • At approximately 10:00am, Kyiv time, Parnas, Shefir, and Fruman meet at Restaurant Prague.
  • During the meeting, following Giuliani’s instructions, Parnas delivers the message to Shefir: “The conversation I laid out to [Shefir] was basically what I was told to do by Giuliani and the president.” (Maddow at 9)
  • Shefir and Parnas conclude their meeting by agreeing that Shefir would report back to Zelensky, and Shefir and Giuliani would meet up again at the end of the day in order for Shefir to give Parnas Zelensky’s answer. According to Parnas, after the meeting he updated Giuliani on what had happened: “And then, afterwards, I relayed back to them saying that he’s going to get back to me later that tonight and we’re supposed to meet.” (Maddow at 9)
  • For the rest of the day on May 12, Parnas waits to hear back from the Ukrainian officials, but by that evening, he has not received word from anyone. Finally, Parnas reaches out to Shefir again: “around 8:00, or 9:00 at night, I texted them back again saying, any word? What’s the situation? And at that point, because on WhatsApp when a person like disconnects you” (Maddow at 9)
  • Parnas contacts Giuliani and tells him that he does not think Zelensky has agreed to their demands: “I understood that [Shefir’s lack of response] was a no. So, I called [Giuliani] back and said no-go, and he – I remember Rudy going, OK, they’ll see” (Maddow at 9); “I called Rudy, told them that I don’t think it’s going to – there is going to be an announcement. And he said, OK, they’ll see.” (Cooper at 3)

May 13:

  • Parnas tells Toensing, via WhatsApp messages sent just after 4:00am, Eastern time, that he was “waiting to hear from president elect today” and that he was “on standby waiting to hear [for the] next couple of hours.”
  • Shortly after 11:00am, Eastern time, Vice President Pence’s office receives instructions that President Trump has decided to cancel Pence’s trip to the Zelensky inauguration.
  • Parnas learns that Pence will not be attending Zelensky’s inauguration: “I got called and said that they got a call from them, some – basically some – they found out that Pence is not going to be there, they got – he got cancelled. They said that there was a scheduling problem or something.” (Cooper at 3)

May 15-16

  • A few days after Parnas’s meeting with Shefir, Zelensky’s team learns that Vice President Pence’s trip to Ukraine has been canceled.
  • According to Parnas, “And then after that, like I think on the 16th or the 15th, I don’t remember the exact dates, [Zelensky’s team] had – because they were flipping out what to do. They didn’t want to be embarrassed. They didn’t know if anybody at all was going to show up, you know, but they knew Pence wasn’t coming, Trump wasn’t coming.” (Cooper at 4); “[W]ithin the next couple of days, all of a sudden, [the Ukrainian officials] realize that now they get word, because obviously, when Pence cancels, they get word that Pence is not coming. So, now, they realize that what I – what I was telling them is true.” (Maddow at 9)

Corroborating Parnas’s Claims About the May 12 Meeting

Parnas’s story about the May 12 meeting is specific, detailed, and based on his first-hand experiences – and contains numerous details that, if true, should be relatively easy to confirm. At the moment, the public record available about the May 12 meeting comes from (1) statements to the media from other witnesses; and (2) documentary records that have been made available to the House in the course of the impeachment inquiry. Thus far, Parnas’s account is consistent with the existing record of evidence. Additional corroboration for Parnas’s claims is also likely to be found in additional materials that have previously been produced to the House, but have not been publicly released.

Statements from Other Witnesses

The existence of the May 12 meeting is not in dispute.[3] It took place at the Restaurant Prague at approximately 10:00am on May 12, and three people were there: Lev Parnas, Igor Fruman, and Sergey Shefir. Per the New York Times, the three men sipped coffee and spoke in Russian.

In the November 10, 2019 article that first reported on the existence of the May 12 meeting, the New York Times describes Parnas’s account of the meeting as “potentially significant,” but cautions that it has been “contradicted on several fronts,” suggesting that other witnesses have disputed Parnas’s assertions about what happened.

Although skepticism of Parnas’s account is very much warranted, in describing Parnas’s account as “contradicted,” the New York Times appears to have been overstating the case. All three meeting participants (or their attorneys) are quoted in the article, along with Giuliani, but none of the quoted statements in the Times article actually contradict anything that Parnas has said.

For instance, Igor Fruman’s attorney, John Dowd, gave the following statement about the May 12 meeting:

A lawyer for Mr. Fruman, John M. Dowd, said his client told him the men were seeking only a meeting with Mr. Zelensky, the new president. “There was no mention of any terms, military aid or whatever they are talking about it — it’s false,” said Mr. Dowd, who represents Mr. Fruman along with the lawyer Todd Blanche.

Fruman, through Dowd, denies that a specific term – “military aid” – ever came up during the May 12 meeting. But that isn’t actually a contradiction of anything Parnas has said; nowhere in the Times article is Parnas quoted as having used the term “military aid,” either. And, in his interview with Maddow, when Maddow used the term “military aid” in questioning Parnas about the meeting, Parnas corrects her:

It has been reported as far as we understand, from public reporting, that you conveyed to Mr. Shaffer the exact quid pro quo, that you wanted Zelensky to announce investigations into Joe Biden or military aid would not be released to Ukraine. Is that accurate?

. . .

PARNAS:  … The message was, it wasn’t just military aid, it was all aid. Basically their relationships would be sour.

Parnas made a similar point in his interview with Cooper:

COOPER: At that point, was there any mention of withholding of aid?

PARNAS: Yes. Well, if they didn’t make the announcement, basically, there would be no relationship. Not just to – it was no specific military, there was no way they were going to be assisted.

Based on Parnas’s descriptions of the meeting, the threat Parnas had conveyed to Shefir was not in regards to any particular category of foreign assistance to Ukraine. Rather, Parnas says he was conveying a more generalized threat: that Zelensky must announce the Biden investigations immediately, or else the entire relationship between the U.S. and Ukraine would be at risk, along with all U.S. monetary assistance to Ukraine, military or otherwise. The only specific threat that Parnas says he conveyed to Shefir was not about any monetary aid, but about Vice President Pence’s attendance at Zelensky’s upcoming inauguration.

Giuliani is also quoted in the New York Times article, but does not deny Parnas’s account of the message he conveyed to Shefir. Instead, Giuliani only denies that he instructed Parnas to deliver that message:

Mr. Giuliani denied Mr. Parnas’s contention that he had delivered the warning at the direction of Mr. Giuliani. “Categorically, I did not tell him to say that,” Mr. Giuliani said.

In his statement, Sergey Shefir, like Fruman, denies that the term “military aid” ever came up during the May 12 meeting. But Shefir does not otherwise contradict Parnas’s account of what transpired at the meeting:

In a statement on Friday, Mr. Shefir acknowledged meeting with Mr. Parnas and Mr. Fruman. But he said they had not raised the issue of military aid. Mr. Shefir said he briefed the incoming president on the meeting. … “We did not treat Mr. Parnas and Mr. Fruman as official representatives, and therefore we did not consider that they could speak on behalf of the U.S. government,” Mr. Shefir said. He added Mr. Parnas and Mr. Fruman had requested that Mr. Zelensky meet with Mr. Giuliani.

Mr. Shefir said in his statement that he had told Mr. Parnas and Mr. Fruman “that we could consider meeting with Mr. Giuliani, but only publicly and officially and only after the inauguration of the newly elected president.”

In fact, Shefir’s statement is consistent with Parnas’s own account of the meeting dynamics.[4] In Parnas’s interview with Maddow, Parnas described how Shefir (and, through him, Zelensky) had not seemed to take Parnas’s demands seriously; Parnas implies that the Ukrainian officials may have harbored doubts as to whether Parnas truly spoke on behalf of Giuliani and President Trump, like he claims. According to Parnas, it was only after Vice President canceled his attendance to Zelensky’s inauguration that the Ukrainian officials realized Parnas had been telling them the truth:

Next, within the next couple of days, all of a sudden, they realize that now they get word, because obviously, when Pence cancels, they get word that Pence is not coming. So, now, they realize that what I – what I was telling them is true. (Maddow at 9)

Documentary Records Already in the Possession of HPSCI

If Parnas’s account of May 12 is true, the HPSCI should already be in possession of records that could provide significant corroboration for many of his claims.

  • Records corroborating Parnas’s claim that, prior to the May 12 meeting, Giuliani instructed Parnas to deliver the “very harsh message” to Shefir

In his interview with Maddow, Parnas stated that he received instructions to deliver “a very harsh message” to Shefir pursuant to a phone call from Giuliani, and that Giuliani had made this call “after … meeting with the president at the White House.” (Maddow at 7)

If Parnas’s account is true, then there are likely phone records that confirm the existence of phone calls between Parnas and Giuliani on the afternoon or evening of May 11 – that is, sometime after Parnas and Shefir had made plans to meet, but before their meeting actually took place. Moreover, these communications between Parnas and Giuliani would have occurred shortly after Giuliani had an opportunity to meet with President Trump.

It turns out that there is a fairly limited window during which these communications could have taken place. On May 11, a Saturday, Trump spent the day at his Virginia golf club, and left the White House at 9:16am, Eastern time, and returned at 3:03pm. If Parnas is correct about Giuliani having met with Trump at the White House that day, then any meeting between Giuliani and President Trump presumably occurred either before 9:16am or after 3:03pm. And, based on Parnas’s account, we would expect to see phone activity between Giuliani and Parnas that follows on the heels of that.

Conveniently, HPSCI should already be in possession of the phone records that could confirm Parnas’s account, including call records for Giuliani, Parnas, and Fruman.[5] These records were obtained by the House during the impeachment inquiry, and cited extensively throughout the HPSCI report. Although that report does not mention any phone calls that took place on May 11 or May 12 – and so does not make public the specific portions of the phone records that are relevant to Parnas’s account – the report does include detailed discussion of call records for Parnas and Giuliani from other dates. Such as on May 8:

On the morning of May 8, Mr. Giuliani called the White House Switchboard and connected for six minutes and 26 seconds with someone at the White House. That same day, Mr. Giuliani also connected with Mr. Solomon for almost six minutes, with Mr. Parnas, and with Derek Harvey, a member of Representative Nunes’ staff on the Intelligence Committee. (HPSCI Report at 56)

And on May 9:

On May 9, following public revelation of his trip by the New York Times, Mr. Giuliani connected in quick succession with Mr. Solomon and then Mr. Parnas for several minutes at a time. Mr. Giuliani then made brief connections with the White House Switchboard and Situation Room several times, before connecting at 1:43 p.m. Eastern Time with someone at the White House for over four minutes. He connected, separately, thereafter with Mr. Parnas several times in the afternoon and into the evening. (HPSCI Report at 57)

And on May 10:

[Giuliani] then had another flurry of calls with Mr. Parnas. Shortly after 2:00 p.m., Eastern Time, Mr. Giuliani also spoke with Ambassador Volker on the phone. Ambassador Volker had learned that Mr. Giuliani intended to travel to Ukraine “to pursue these allegations that Lutsenko had made, and he was going to investigate these things”—specifically, the debunked story that Vice President Biden had improperly pressured Ukraine to fire a corrupt prosecutor general, as well as the Russian-backed conspiracy that the Ukrainians interfered in the 2016 U.S. election. Ambassador Volker testified that he had a simple warning for Mr. Giuliani: Prosecutor General Lutsenko “is not credible. Don’t listen to what he is saying.” Call records obtained by the Committees reveal that their call lasted more than 30 minutes.

Call records also show that around midday on May 10, Mr. Giuliani began trading aborted calls with Kashyap “Kash” Patel, an official at the National Security Council who previously served on Ranking Member Devin Nunes’ staff on the Intelligence Committee. Mr. Patel successfully connected with Mr. Giuliani less than an hour after Mr. Giuliani’s call with Ambassador Volker. Beginning at 3:23 p.m., Eastern Time, Mr. Patel and Mr. Giuliani spoke for over 25 minutes. Five minutes after Mr. Patel and Mr. Giuliani disconnected, an unidentified “-1” number connected with Mr. Giuliani for over 17 minutes. Shortly thereafter, Mr. Giuliani spoke with Mr. Parnas for approximately 12 minutes. (HPSCI Report at 58)

The call records from May 8-10 also show a recurring pattern: Giuliani would have a “flurry” of calls with Parnas early in the day, which was later followed by call(s) with the White House, which in turn was followed with additional calls to Parnas. Interspersed with Giuliani’s communications with both Parnas and the White House are additional calls between Giuliani and reporter John Solomon, as well as calls between Giuliani and individuals who were or have been members of Rep. Devin Nunes’ staff.

Although phone records for May 11 and May 12 are not referenced in the HPSCI report, the subpoenaed call records would have included call activity for that time period as well. WhatsApp messages exchanged between Parnas and Giuliani confirm that it is likely the two of them were in phone contact when Parnas’s meeting with Shefir was in the planning stages:

•prease call me as soon as your up my brother 
React '"2019 A'.,WTC-4) 

Additionally, Parnas’s messages with Victoria Toensing show that he was likely in phone contact with her as well. For instance, shortly after Parnas made contact with Sergey Shefir, Parnas and Toensing had the following exchange:

Whars happening? V 
5/1112019 1231:40 PM(llTC-4) 
Callyou ιη 10-20 
ςι 12019 1137:24 pwurc-4) 
531112019 123724 PM(lJTC-4) 
+ 120225ξ¯Ι 
Reat 5ΊΙ,αΙ9 
5/1112019 12:3749 PM(UTC-4)

It should be noted that Giuliani’s phone records alone will not be sufficient to corroborate one aspect of Parnas’s story: that before Parnas received his instructions from Giuliani about what to say at the meeting, Giuliani discussed the matter with Trump. According to Parnas, Giuliani and Trump had this conversation at a face-to-face meeting, which Parnas says happened at the White House. If Parnas is correct about that, then Giuliani’s phone records alone won’t provide corroborating evidence for it. Other records may exist that could confirm this aspect of Parnas’s account, however.[6] And President Trump’s social media activity on May 11 suggests that Biden’s activities in Ukraine were very much on his mind. That morning, before departing for his golf course, he retweeted Mike Huckabee’s tweet accusing former Vice President Biden of misconduct in Ukraine:

Gov. Mike Huckabee 
I sure wish Sen Richard Burr was as interested 
in Biden's cushy deals w/ Ukraine & China 
while VP than he is in the harassment of 
@DonaldJTrumpJr over a CLOSED witch hunt. 
12:59 PM - 9 May 2019 
Q 2.9K 14K 0 47K
  • Records of calls made between Parnas and Giuliani during the May 12 meeting.

Parnas told Maddow that when he met with Ukrainian officials, it was common practice for Giuliani to be called and put on speakerphone at some point during the meeting, so that Giuliani could confirm to the Ukrainian officials that Parnas had the authority to speak with them on his behalf.

However, it is unclear if complete phone records for May 12 would show evidence of Parnas and Giuliani communicating during the May 12 meeting. Parnas and Fruman met with Shefir at 10:00am Kyiv time, or 3:00am Eastern time, and given the late hour it is possible Giuliani would not have been available to call in to the meeting. However, if the House does in fact have Parnas’s and Giuliani’s phone records for May 12, it would be interesting to see if any calls between Giuliani and Parnas (or Giuliani and Fruman) appear between 3:00am and 4:00am Eastern time. Such a call would provide strong proof of Giuliani’s knowledge of the meeting.

  • Records of Parnas’s communications with Giuliani immediately following the May 12 meeting, in which Parnas “relayed back” to Giuliani “that [Shefir is] going to get back to me later that night and we’re supposed to meet.” (Maddow at 9)

According to Parnas, after the May 12 meeting, Parnas updated Giuliani on events, and informed him that Shefir was to get back to him later that evening with Zelensky’s answer. Whether this communication happened via a phone call, text message, or some other form was not specified in Parnas’s interview with Maddow. Unfortunately, the WhatsApp communications that have been made publicly available so far are incomplete, and no communications between Parnas and Giuliani that occurred between May 12 and May 15 were included. Pagination on the produced WhatsApp records show that there were frequent WhatsApp exchanges between them at this time, however, as the last available message from May 11 appears on page 230, and the next record, from May 16, jumps ahead to page 246.

While the nature of any WhatsApp communications between Giuliani and Parnas is thus unknown to the public at this time (and perhaps unknown to the House, as well – it is unclear how complete the record handed over by Parnas was), reporting from the Wall Street Journal has already indicated that there were in fact phone calls between Parnas and Giuliani on the relevant days:

Messrs. Giuliani and Parnas were in close contact in the days surrounding both meetings: The two men called or tried to call each other nearly 40 times the week of the February meeting, a person familiar with the matter said. On the day of the May meeting, Mr. Giuliani called Mr. Parnas twice, and Mr. Parnas called him three times the next day, the person said, and they exchanged hundreds of calls over the course of that week.

The Wall Street Journal does not provide any further details about these calls, such as what time they were made or how long the calls lasted, but its report does appear to confirm that call records for the dates in question do exist, and do show contact between Parnas and Giuliani in the approximate time period that would be expected, based on Parnas’s account. Additionally, if Parnas is called to testify before the Senate, he would be able to provide further details about how he and Giuliani communicated that day, and might be able to identify other forms of records that could corroborate his account.

  • Records of Parnas’s communication with Shefir following the May 12 meeting.

According to Parnas, the May 12 meeting ended with Shefir and Parnas agreeing to connect again later that day, once Shefir had a chance to brief Zelensky on what Parnas and Fruman had told him. Parnas did not hear back from the Ukrainian officials, however, so that evening he reached out again to Shefir: “Then around 8:00, or 9:00 at night, I texted them back again saying, any word? What’s the situation? And at that point, because on WhatsApp when a person like disconnects you, and he disconnected me, our conversation.” (Maddow at 9)

The available record supports Parnas’s description of events. In the WhatsApp messages between Parnas and Shefir show that, after their meeting at 10:00am that morning, the next and final communication between them that day occurred at 9:41pm, Kyiv time, when Parnas messaged Shefir: “Serhiy[,] good evening[,] is there any news!”

Shefir did not respond to Parnas’s message. In fact, although in the following months Parnas would try twice more to message Shefir, Shefir never responded to Parnas again.

Other WhatsApp messages sent and received by Parnas on May 12 provide additional context for Parnas’s account of events – though due to the cryptic wording used in many of the WhatsApp exchanges, the exact meaning of these messages is often ambiguous at best. For instance, half an hour after Parnas’s message to Shefir, Parnas sent a message to Lutsenko: “Yuriy dial me I have something important to tell you.” It is unclear if the two connected by phone, but at 10:51pm, Kyiv time, Parnas sent a second message, telling Lutsenko that if he can’t reach Parnas tonight, to call him tomorrow at 1pm. At nearly 1am, Lutsenko finally responded, stating “Let’s call. Better after 4. I have a lot of work to do.”

, whatsapp.f',et [р 
Юра набери мне у меня есть что-то тебе важно рассказать 
St*.s: Sent 
5312.2019 Т10•и PM(UTC+O) 
whatsapp.tEt Ир 
Юра если ты сегодня будет сильно поздно перезвонит давай завтра в час дня 
у тебя? 
Ига Lusenka Attmy Сепега\ Ukraine 
созвонимся. Лучше после 16. У меня куча дел по работе 

It is unclear what the “something important” was that Parnas needed to communicate to Lutsenko, but Lutsenko’s next response to Parnas, sent the following day, may provide a clue:

“So is he against the investigation?”, Lutsenko asks. Unfortunately, this exchange between Lutsenko and Parnas is maddeningly devoid of context. Who is the “he” in Lutsenko’s message? Is it Shefir? Zelensky himself? If so, this message would seem to be corroboration of Parnas’s claim about what was discussed at the May 12th meeting: the announcement of a Biden investigation.

  • Records of Parnas’s call to Giuliani on May 12, in which Parnas told Giuliani, “I don’t think [ ] there is going to be an announcement [of a Biden investigation],” to which Giuliani responds, “OK, they’ll see” (Cooper at 3)

In his interviews with both Maddow and Cooper, Parnas stated that, after he did not hear back from the Zelensky administration on the evening of May 12, he “called Rudy, told them that I don’t think it’s going to – there is going to be an announcement. And he said, OK, they’ll see.” (Cooper at 3) If Parnas’s account is true, there should be phone records reflecting the call he described. Moreover, based on Parnas’s version of events, Giuliani must have passed the word on to the White House in a very short amount of time, because less than 24 hours later – by approximately 11:00am, Eastern time, on May 13 – President Trump had already issued instructions to the Vice President’s office, informing him that he would no longer be attending Zelensky’s inauguration. This means that, under Parnas’s story, communications between Parnas and Giuliani would have fallen within a narrow window of time.

Based on the reporting from the Wall Street Journal, Giuliani and Parnas exchanged phone calls on both May 12 and May 13. Further details from the call records may help corroborate Parnas’s account by showing that the timing of his communications with Giuliani corresponds with the known timeline of when it was decided that Vice President Pence would not attend the inauguration.

  • Records that could explain when and why President Trump made the decision to  cancel Vice President Pence’s trip to attend the Zelensky inauguration

In his interviews with Maddow and Cooper, Parnas stated that, the day following his meeting with Shefir, President Trump ordered Vice President Pence to cancel his plans to attend Zelensky’s inauguration. On this point, Parnas’s account is factually correct; the known sequence of events surrounding the cancelation of Vice President Pence’s trip to Ukraine matches his description. But the explosive part of Parnas’s account – and the part that remains to be corroborated – is his claim that Trump’s decision to cancel Pence’s trip to Ukraine had been made in  response to the Zelensky administration’s failure to comply with the demands conveyed by Parnas in the May 12 meeting.

In his interview with Cooper, Parnas said that he told Shefir “that [Zelensky] needed to make an announcement, to immediately make an announcement literally that night or tomorrow, that within the next 24 hours, that they were opening up an investigation on Biden,” and that Shefir was warned that, should Zelensky fail to comply with the demands, Pence would not be at the inauguration. (Cooper at 3) The following day, when no announcement had been made, President Trump made good on his threat and pulled Pence from the inauguration.

Prior to the May 12 meeting, Pence’s attendance at Zelensky’s inauguration had already been agreed upon, and the Ukrainian officials would have been expecting him to be there. President Trump had made the decision for Pence to attend the inauguration on April 21, the day Zelensky won the election. (Williams at 37-38, 41) However, at that point, the exact date of the inauguration was unknown, as under Ukrainian law the parliament was responsible for scheduling the inauguration, based on the president-elect’s recommendations, but the parliament could not do so until May 13, when they were back in session. (Williams at 57) After Zelensky’s election, the Ukrainians informed their American counterparts that a final decision on the inauguration date would be announced sometime during the week of May 13, but that they were “looking at the end of May window” for the inauguration, or possibly early June. (Id.) The Vice President’s office had begun initial planning for the trip, but shortly after 11:00am on May 13 (the day after Parnas’s meeting with Shefir) Vice President Pence’s staff received a phone call informing them that Pence would not be attending the inauguration. (Williams at 38) There was no explanation given for why the trip was canceled, and at that point there were no scheduling conflicts or other difficulties that would have prevented Pence from attending; instead, all the Vice President’s office was told was that “the President had determined that the Vice President should not go.” (Williams at 160) Following Pence’s cancelation, the Ukrainian parliament announced, on May 16, that the inauguration would be held much sooner than they had previously anticipated, and would take place just four days later, on May 20. (Williams at 57)

Because President Trump has refused to produce any records before the House’s impeachment inquiry, there is nothing available in the public record that can explain why Pence’s attendance at the inauguration was canceled. But there must be some explanation for this. Immediately following Zelensky’s election, Pence’s attendance at the inauguration had been deemed to be in the U.S.’s best foreign policy interest – so how, and why, did the White House come to suddenly change its mind about this, on the morning of May 13? No reason has ever been offered by President Trump or the White House, and although Republicans in the House have tried to dismiss Pence’s failure to attend as some kind of scheduling mix up or logistical conflict, no evidence has been produced that supports this explanation.

In contrast, Parnas’s claims about why Pence was withdrawn from the inauguration do provide a plausible and coherent explanation for the known sequence of events. That, by itself, cannot confirm the truth of Parnas’s account. But the available evidence lends far more support to Parnas’s account than it does to any of the explanations that have been proffered by House Republicans.

Parnas’s WhatsApp messages are also consistent with Parnas’s statements to Anderson Cooper about the specific demands that Parnas conveyed to Shefir. According to Parnas, Shefir was told that Zelensky needed to make the Biden announcement right away, as in “literally that night or tomorrow, [ ] within the next 24 hours.” (Cooper at 3) Parnas says that when Shefir failed to respond to him on the evening of May 12 as had been planned, Parnas interpreted this as a no, and contacted Giuliani to tell him, “I don’t think it’s going to – there is going to be an announcement.” (Id.)

But Parnas says that the message he gave to Shefir was that Zelensky had “the next 24 hours” to make a decision. That would mean that, by the evening of May 12, Zelensky technically had not failed to comply with the demands – it would not be until May 13 that Giuliani and Parnas could have known for sure that Zelensky was not going to comply.

And in fact, Parnas’s WhatsApp messages to Toensing provide strong supporting evidence that  the following morning, on May 13, Parnas was still waiting for word from President-Elect Zelensky:

Just after 4:00am, Eastern time, Parnas told Toensing that he was “waiting to hear from president elect today,” and that plans were “on standby waiting to hear [in the] next couple hours.” These messages are fully consistent with Parnas’ account about what happened at the May 12 meeting, as well as with the known timeline of events with regards to the cancelation of Pence’s trip.

If Parnas’s account is true, then within a few hours of Parnas’s messages to Toensing, Parnas must have communicate to Giuliani that Zelensky had not agreed to the demands, and, in turn, Giuliani must have quickly communicated this message to the White House – because just a few hours later, the decision was made to cancel Pence’s attendance at the inauguration.

Based on the Wall Street Journal report, the call records between Parnas and Giuliani show at least three calls from Parnas to Giuliani on May 13. A review of the complete call records obtained by HPSCI may provide further corroboration of Parnas’s story, if it is shown that Giuliani communicated with the White House that morning, after he had spoken to Parnas but before Pence’s trip was canceled at 11:00am.

A Note of Caution: Parnas Has His Own Reasons for Talking

The record made available so far has, in fact, been largely consistent with Parnas’s account of the May 12 meeting, and provides corroboration for many key details in his claims. However, while this evidence supports Parnas’s account to a degree, or at least doesn’t contradict it, there are numerous suggestions in the record that Parnas’s account is incomplete. In particular, Parnas’s claims appear to be selectively omitting events that could suggest his culpability in as-of-yet uncharged crimes under the Foreign Agent Registration Act and the Foreign Corrupt Practices Act.

For instance, in his interviews with both Cooper and Maddow, Parnas acknowledged that the demand for the Biden investigation was not the only demand conveyed in the May 12 meeting:

“I basically told them very strict, and very stem, several things. A, that he needed to make an announcement, to immediately make an announcement literally that night or tomorrow, that within the next 24 hours, that they were opening up an investigation on Biden.” (Cooper at 3)

“It was several things. There were several demands at that point. A, the most important was the announcement of the Biden investigation.” (Maddow at 8)

There were “several demands” that Parnas made of Shefir, Parnas acknowledges, but Parnas only identifies one. What were these other demands made of Shefir? Were those demands also requested by Giuliani, or by Trump, or were they independently made by Parnas?

Should Parnas testify before the Senate, it is possible that he would be able to provide a fuller account of these activities.[7]


Lev Parnas’s account of the May 12 meeting, if proven, would demonstrate President Trump’s direct involvement in the Ukraine Scheme’s efforts to coerce the Ukrainian government into providing his campaign with assistance in the 2020 election. Parnas’s testimony is critical evidence that should be heard at the Senate’s impeachment trial, and his answers under oath would provide clarification for many of the details that Parnas did not address in the course of two brief cable news interviews.

But already there is already strong evidence to suggest that the central planks of Parnas’s claims are true, at least in regards to the portion of the Ukraine Scheme’s efforts that were focused on the Biden investigation. Based on the existing public record, Parnas’s account of the May 12 meeting, as described in his interviews with Rachel Maddow and Anderson Cooper, can be shown to be consistent with all available witness statements and documents, and many of the key details of his claims can be corroborated by documents already produced by the House in the course of the impeachment inquiry. Finally, in addition to the public records cited in this article, other records that are already in HPSCI’s possession, as well as additional discovery materials produced in the criminal proceeding against Parnas that may later be transmitted to HPSCI, are likely to provide additional corroboration for Parnas’s account.


[1] Parnas’s WhatsApp messages suggest that Yuriy Lutsenko may have also been aware of the purpose of the pair’s early April trip to Israel. On April 2, Parnas messaged Lutsenko, “This is going to be a big week.” In response, Lutsenko sent Parnas an image of David fighting Goliath – a possible reference to Parnas’s upcoming plans to meet with the billionaire Kolomoisky.

[2] On April 7, at the conclusion of Parnas’s and Fruman’s first trip to Israel, the Department of Justice leaked a story to the Daily Beast that described how Kolomoisky was under FBI investigation for financial crimes. That the DOJ would choose to leak this news at all is questionable – there is no apparent legitimate basis for why the FBI would have wanted to make its ongoing investigation public at that time, particularly given the timing of the release, just weeks before the Ukrainian election – and raises question about whether this leak was ordered by the White House in order to increase pressure on Kolomoisky, with the aim of inducing his cooperation with Giuliani’s and Parnas’s efforts to open an investigation into Biden in Ukraine. Should either Parnas or Giuliani testify before the Senate, they should be questioned as to whether they have knowledge about the timing of the Daily Beast’s story.

[3] That the meeting with Shefir did in fact take place is further confirmed by Parnas’s messages to Shefir on the morning of May 12 on his way to the Restaurant Prague:

Parnas: Good morning Sergei I am already on the road but I was delayed for 15 minutes, so I will be there somewhere around 10:15 to 10:20 thank you.

Shefir: Ok

[4] Additionally, Shefir’s statement that they “did not consider that [Parnas and Fruman] could speak on behalf of the U.S. government” is in no way a contradiction of Parnas’s version of events. Parnas used Giuliani’s letter to introduce himself to Shefir, and that letter makes clear that Giuliani – and through him Parnas – are not representatives of the U.S. government, but instead represent Donald Trump in his personal capacity.

[5] As part of its investigation, HPSCI issued at least six subpoenas for cellphone records, including subpoenas for call records for both Giuliani and Fruman. Although Parnas’s phone records were not specifically identified as among those obtained by subpoena, the HPSCI’s report on the impeachment inquiry indicates that the HPSCI was in fact of possession of call records for Parnas.

[6] Although no public records are currently available to confirm that Trump and Giuliani met on May 11, there is evidence to suggest such a meeting was in fact planned. On the afternoon of May 10, Trump gave an interview to Politico in which, after being asked about Giuliani’s plans to travel to Kyiv on May 12, Trump stated, “I have not spoken to him at any great length, but I will … I will speak to him about it before he leaves.”

[7] In fact, it is possible that is exactly what Parnas is hoping for. Parnas’s testimony, given under subpoena, will have use immunity, and cannot be used by the government to charge him with additional criminal offenses. Although the government would not be barred from charging Parnas for that conduct based on evidence derived from other sources, as shown by the example of Oliver North’s testimony before Congress in the Iran-Contra affair, the act of testifying before Congress about your own criminal activities can, in the right circumstances, successfully prevent your prosecution for those acts.

On Just Security – “Here’s the Proof that Trump’s ‘No Quid Pro Quo’ Call Never Happened”

It’s been a while since I last got around to writing something for this blog… and also it will be a while longer yet, because I still haven’t gotten around to it. But I did write something for Just Security that’s worth checking out, on why Ambassador Gordon Sondland’s testimony about his phone call with President Trump cannot be true, and what he was trying to hide by changing his story.

From the article:

At the heart of the impeachment inquiry, members of Congress may have been mistakenly led to believe that there were two phone calls between President Donald Trump and Ambassador Gordon Sondland in early September—with the second call having the possibility of helping the President’s case. That’s not what happened. There was only one call, and it was highly incriminating.

The call occurred on September 7th. In this call, Trump did say there was “no quid pro quo” with Ukraine, but he then went on to outline his preconditions for releasing the security assistance and granting a White House visit. The call was so alarming that when John Bolton learned of it, he ordered his’ deputy Tim Morrison to immediately report it to the National Security Council lawyers.

Sondland has testified there was a call on September 9th in which Trump said there was “no quid pro quo,” but that he wanted President Zelenskyy “to do” the right thing. A close reading of the publicly available evidence shows that the latter call was actually the very one that sent Morrison to the lawyers, and that Ambassador Bill Taylor foregrounded in his written deposition to inform Congress of the quid pro quo.

As this article was in the publication process at Just Security, the Washington Post published a report raising doubts about the existence of the September 9 call. The analysis that follows is consistent with the Post’s report and, among other points, shows why Sondland’s “no quid pro quo” call is in fact  the same as the September 7th call that Morrison reported to NSC lawyers on September 7th.

On the Origins of Stormy Daniels’ $130K Settlement Payment, and the Probability of the Disbursement Records Matching the Settlement Amount by Random Chance

This blog post is a continuation of a Tweet-thread I posted earlier this week about Trump’s settlement/nondisclosure agreement with Stormy Daniels, and the questions surrounding the original source of the $130K that was used to make the payoff.


Originally, I had been planning to continue with additional updates on the issue in tweet form… until at some point I realized it would’ve gone on to like tweet 736/736 to actually do it. So in order to spare everyone that, I decided it was time to dust off my poor neglected blog instead, and do a real post for once.

Brief background on the Stormy/Trump Nondisclosure Agreement & Settlement

  • Stormy Daniels (real name Stephanie Clifford) and Donald Trump (fake name David Dennison) had an affair in 2006-2007, after meeting at a Tahoe golf tournament.
  • The affair was partially reported on in 2011, but never confirmed.
  • During the 2016 election, beginning sometime in late summer of 2016, Stormy’s attorney Keith Davidson approached the Trump camp (presumably meaning Michael Cohen, Executive Vice President of the Trump Organization and Trump’s personal attorney) to inform them of Stormy’s plan to speak out about the affair.
  • Cohen countered with an offer of a confidential settlement and nondisclosure agreement instead.
  • Stormy accepted, and an NDA was negotiated between the parties; the total pay out to Stormy would be $130K, and in exchange she would agree not to disclose any details of her affair with Trump.
  • In October 2016, less than a month before the election, the deal began to fall apart when Trump failed to make the agreed-upon settlement payment.
  • Consequently, Stormy Daniels spoke to reporters about finally going public with her story, apparently concluding that if Trump was never going to actually pay her, so she might as well get paid for her story by telling it publicly. According to a Slate article published in January 2018, this occurred in about mid-October:

Daniels said she was talking to me and sharing these details because Trump was stalling on finalizing the confidentiality agreement and paying her. Given her experience with Trump, she suspected he would stall her until after the election, and then refuse to sign or pay up. …

I told Daniels that Slate did not pay sources but encouraged her to come forward without compensation. I proposed interviewing her on Trumpcast and writing her story. She never said yes and never said no. Late in the discussion, I asked a Slate colleague to help me verify her account. We both spoke to Daniels and to Gina Rodriguez, a former porn actress turned agent, who Daniels was using to negotiate with media organizations. I gathered that Daniels was also discussing going public on Good Morning America. At one point she considered holding a press conference in Dallas, where she lives.

  • On October 18, 2016, one such story was published by The Smoking Gun
  • But subsequently, “about a week before the election,” Stormy went silent, having presumably taken the payout from Trump and agreeing to the NDA

The Wall Street Journal’s Coverage of the Settlement Payment

The Stormy story disappeared into nothing in the final weeks of the election, and essentially disappeared from view for the next 14 months. Then, in January 2018, the story suddenly came alive again when the Wall Street Journal published a series of reports on how Trump’s attorney, Michael Cohen, made the $130,000 settlement payment to Stormy Daniels’s attorney.

The following is a timeline of known events surrounding the Stormy settlement, compiled from a dozen or so different reports that have come out since the WSJ story with different details on what happened.

Sept. 30, 2016
Cohen forms Resolution Consultants, LLC, a Delaware entity. For unknown (and possibly ill-advised) reasons, Cohen chooses a name that is completely transparent about the LLC being created in connection with some kind of settlement.

Oct. 1-Oct. 11, 2016
A settlement agreement is negotiated and agreed to in principle, but never executed, because the $130K payment is not made to Stormy’s attorney as agreed.

An earlier draft of the Side Letter is leaked by Stormy to Jacob Weisberg over at Slate. It appears to specify that payment is to be made to “RCI” (possibly Resolution Consultants), and also contains what may be typos. For instance, in paragraph 3, the Side Letter mistakenly refers to “DAVID DELUCIA,” even though Trump’s pseudonym for this agreement is “DAVID DENNISON.” (Though not directly relevant here, it’s worth noting that one possible explanation is that Stormy’s NDA/Side Letter is a standard agreement Trump uses regularly, and “DAVID DELUCIA” was the result of someone’s failure to correct update the template to match the terms being used in the Stormy agreement.)

Oct. 12, 2016
On October 12, 2016, Stormy’s attorney writes a brief, two-word email to Cohen: “We good?”

From context, this is likely Davidson checking in with Cohen to confirm that the settlement is actually going to proceed as planned. (And, although this is reading a bit between the lines, it also suggests perhaps there had been previous hitches in the negotiation, causing Davidson to feel the need to check in with Cohen and confirm that, this time, all systems really are go.)

Cohen responds quickly, stating, “Yes. It’s Yom Kippur so the office is for all purposes effectively closed. I am in tomorrow but can speak for the next 3 hours via cell if necessary.”

Although somewhat ambiguous, the impression given by these emails is that:
(1) Stormy Daniels’ attorney was asking about the status of the payment to Stormy,
(2) Cohen was trying to reassure Stormy’s attorney that the payment would be forthcoming, but that due to the holiday and lack of personnel at the office, he might be unable to finalize the practical side of the arrangements that day.

Oct. 13-Oct. 16, 2016
No payment to Stormy is made. Stormy seems to lose patience and/or hope in Trump’s intentions to ever pay, so she decides to go public with her story. She appears to have been in discussion with numerous outlets (Slate, Good Morning America, and Fox all appear to have been working the story), and the Trump campaign may have been fielding questions from these outlets seeking comment on the story. (One outlet, The Smoking Gun, will in fact go ahead and publish a story on Oct. 18th).

Oct. 17, 2016
Stormy has given up on Trump making good on the settlement. According to the Washington Post, on the morning of the 17th, Stormy’s attorney emails Cohen twice, to inform him he must pay up immediately or the deal is off.

In an Oct. 17 email, an attorney for Daniels — a porn star whose real name is Stephanie Clifford — threatened to cancel the nondisclosure agreement by the end of the day. . . . A second email to Cohen, a short time after the first, said Daniels was calling the deal off. “Please be advised that my client deems her settlement agreement canceled and void,” Daniels’s lawyer, Keith Davidson, wrote in the email, which The Washington Post obtained.

At 10:21am that same day, Michael Cohen forms a new Delaware LLC. This one is called Essential Consultants, LLC. Two minutes later, at 10:23am, the previously created LLC, Resolution Consultants, LLC, is dissolved. (One might speculate that the name “Essential Consultants” was deemed a less conspicuous alternative to the original entity.)

And then, at some point on the same day that Stormy threatens to call of the settlement, the Trump campaign makes four payments to Trump-owned businesses. Although, as usual, there is a regular stream of disbursements from the campaign to the Trump organization during this time period, these four payments, when combined with a fifth and final disbursement to a Trump-owned business that was made on October 25th, total $129,999.72 – 28 cents shy of the exact total of the settlement payment owed to Stormy Daniels.

The four payments made on Oct. 17th are as follows:

10 17 payments

Three of these payments (for $13,431.88, $79,043.94, and $18,731.90) are reported in Trump’s pre-general 2016 report filed on Oct. 27, 2016. One of the disbursements (for $18,731.90) is reported later, in Trump’s post-general 2017 filed on Dec. 8, 2016.

Oct. 25, 2016
The fifth and final of the disbursement in the series adding up to $129,999.72 is made by the Trump campaign.

10 25 payments

Oct. 26, 2016
At 4:15pm, Cohen receives an email from First Republic Bank, confirming that “the funds” have been deposited into a specific checking account.
Cohen then forwards the email to his personal email account, and then forwards it from his personal account to Stormy’s attorney, without comment.

Oct. 27, 2016
According to the Washington Post article, additional email traffic between Cohen and Davidson takes place to confirm that the $130,000 payment has been successfully transmitted to Davidson’s trust account.

Oct. 28, 2016
Stormy signs the settlement agreement, as does Michael Cohen, though he signs as EC, LLC, both as its representative and its counsel.

In the copies of the settlement and the Side Letter that have been publicly released, there is no signature for David Dennison, a.k.a. Donald Trump.

So that’s the relevant background, which brings us back to my tweet on the Trump campaign disbursements. Based on the disbursements itemized in the Trump campaign’s finance reports, which you can obtain from the FEC’s website, in the eight day period between Oct. 17th, when Cohen was informed by Stormy’s attorney that the deal was off due to nonpayment of the $130K settlement, and Oct. 26th, when the bank emailed Cohen to confirm that the settlement funds had been deposited in an account, there were five disbursements from the Trump campaign to Trump-owned businesses that total $129,999.72, or almost the exact amount of the settlement payment that Cohen needed to come up with.

The Stormy Disbursements: A Possible Scenario

If these five disbursements – let’s call them “the Stormy disbursements” for simplicity’s sake – are in fact the source of the Stormy settlement payment, there needs to be an explanation of how that money moved from the Trump campaign to the trust account of Stormy’s attorney. Based on the above timeline, here is my interpretation of what may have occurred here, based on the currently known facts.

In the fall of 2016, Cohen and Davidson negotiated an agreement in principle to buy Stormy’s silence (as well as the copyright for the images Trump texted to Stormy… and no you probably shouldn’t think too much on what that might mean, or you’ll regret it). In exchange for a mutual release of claims, and a payment of $130,000 to be wired to Stormy’s attorney, Stormy would agree to keep all information falling under the general header of “Trump’s affair with a porn star” a secret, as well as to hand over all evidence documenting that affair.

In order to keep Trump’s involvement in the settlement (and the affair) as secret as possible, the settlement agreement was drafted as a sort of complicated shell game, in which the document purporting to be the settlement agreement would contain all the terms, but would not identify either Stormy or Trump as its parties. A side letter confirming their identities as parties to the agreement would then be executed, and locked away as attorneys’ eyes only material.

On September 30, 2016, Cohen created Resolution Consultants, LLC, with the apparent intention to use it as the vehicle through which the settlement payment could be transmitted to Stormy. By early October, a draft settlement agreement had also been prepared and circulated among the parties. At some point, Stormy took a photo of the initial draft of the Side Letter, and sent it to the reporter at Slate. That draft contained a few differences from the final version that was ultimately drafted, such as the (mistaken?) use of “DAVID DELUCIA” as a pseudonum for Trump, as well as specifying that payment was to be made through “RCI,” a.k.a. Resolution Consultants.

But at some point in mid-October, things began to fall apart. Perhaps a payment deadline was missed, perhaps Cohen was acting shadier than normal, but at any rate something tipped off Stormy’s attorney, Keith Davidson, who began to grow wary of whether Trump, via Cohen, was truly acting in good faith, and whether the settlement payment would ever be made. On October 12th, Davidson sent the “We good?” email to Cohen, to check in on the settlement’s status, and Cohen used the Yom Kippur excuse in his reply to explain why no payment had yet been made. This suggests that the Trump Organization itself was involved in some way, and Trump Organization action would be required to effectuate the payment – otherwise, Cohen’s attempt to use the holiday as an excuse makes less sense.

But it would quickly become apparently that Yom Kippur was not the actual cause of the settlement’s delay, because several days would go by and still no payment would be be made to Stormy’s attorney. At this point, it’s not clear why Cohen did not transmit the $130K as agreed. It could be that Cohen/Trump had never actually intended to pay Stormy at all – that their intent all along had been to stall and delay Stormy until after the election, at which point it would be too late for her story to make a difference. Or perhaps Cohen/Trump really had intended to carry out the deal, had wanted to make the $130K payment if they were able, but they were blocked in their attempts to make the payment by unknown hurdles.

Either way, Davidson was not impressed with the delay. Finally, on October 17, 2016, Stormy’s attorney threw down the ultimatum: get Stormy her money by the end of the day, or else Trump’s affair with the porn star is going to be top of the hour news on every cable news show in America.

So now Trump’s Mr. Fixer was desperate. There was no more room for stalling, no more room for delay. He needed to find a way to credibly reassure Davidson that payment would be forthcoming, and he needed to do so quickly. Based on Davidson’s emails, Cohen needed to find a solution before the close of business that day, or else it would be too late.

Most likely, there were further exchanges between Cohen and Davidson on the Oct. 17th. Cohen must have wrote Davidson an email, or had a call with him, and said something along the lines of, “Look, the money is coming, for real this time, I promise. Trump is good for the hush money, it’s just taken a bit longer than expected, that’s all.” But by this point, words would not have been enough – Davidson likely would have wanted some kind of tangible assurance that, yes, payment really was going to be made soon.

Given that Stormy did not go public, it would appear that, one way or another, Cohen succeeded that day in convincing Davidson not to call off the deal right then and there, which would have bought him (and Trump) a little more time. But only a little. One way or another, Cohen still needed to get the settlement money together fast. So here’s the $130K question: how exactly did Cohen get the money?

Here are some possible options Cohen had:

  1. Pay the $130K himself. Ahahahahaha no. No. Never did Cohen intend to bear the cost of this payment himself, and he wasn’t even going to temporarily bear the cost either, if he could at all avoid it. (Cohen has recently claimed that he obtained the $130K through a home line of credit, but the only universe that could have occurred in was if it was a desperate attempt at a temporary bridge. Cohen’s self-serving statements in this respect should also not be taken at face value.)
  2. Have Trump personally pay the $130K. Too risky. There is no way of paying the settlement out of Trump’s personal accounts that would allow Trump to plausibly deny any knowledge of the settlement negotiations.
  3. Have the Trump Organization pay the $130K. Maybe, but this option carries its own risks. A Trump Org payment may not necessarily impute Trump’s direct knowledge of the transaction, but $130K isn’t the kind of rounding error a company is likely to miss. To explain the money going out, Cohen needs to explain first where the money was coming in.
  4. Have the Trump Campaign pay the $130K. There are risks here too, but this might make more sense in some respects. After all, there is this big pool of money just sitting there, and being paid out in large amounts to all kinds of recipients every day. And the whole point of that money is to use in helping Trump get elected. And – let’s be real here – although proving intent in a court of law is another beast all together, as a practical matter, we can all agree that helping Trump get elected was the whole purpose of the Stormy settlement.

One available option to Cohen – and the option he may have chosen – was to use a combination of the Trump campaign and the Trump Organization in a way that effectively amounted to his own in-house money laundering operation. Because the campaign and the company are (in theory) two entirely separate entities, doing business at pseudo-arm’s length. The Trump campaign already had an established pattern of making disbursements to the Trump Organization at regular intervals, and those disbursements were for legitimate services and often fairly large in their total dollar amount. Hypothetically speaking, if you were a money launderer, this might seem like a pretty sweet set up. There’s no need to explain where the money is coming from, because the Trump campaign has plenty of money that was legitimately obtained through donations, and explaining where the money is going out is easy, because you also control the entity that is requesting and receiving the payments. You can have the Trump Organization charge the Trump campaign whatever price you feel like, give or take a 100% markup, and the Trump campaign isn’t going to complain about it. And, as an extra bonus just to make everything even better, the underlying transactions are for large-tickets items with an inherently amorphous real value. Sure, event services have a ballpark range in price, but if you charge $28K for an event, who’s to say that objectively there is no basis for charging anything more than $16K?

So in a perfect world, what Cohen should have done is divide up the $130K intended for Stormy, and then transmitted it from the campaign to the Trump Organization as a nearly invisible surcharge on top of the Trump Org’s existing invoices to the Trump campaign. So that $20,000 invoice the Trump Org is planning to issue to the campaign for hosting that Trump rally at Doral? Make it $40,000 instead. Heck, maybe make it $50,000, it’s not like anyone is going to question an extra $10K when it comes to luxury resort event hosting. You still want to try to keep it superficially plausible, but you have some flexibility there. So you keep on like that, adding on a bit of padding to the invoices from the Trump Org to the Trump campaign, until that padding totals the needed number – in this case, $130K.

But in order to transmit the $130K through inflated-but-otherwise-legitimate invoices, you first need to have some otherwise-legitimate-invoices to inflate.

And this is why the disbursements from the Trump campaign to the Trump Organization that began on October 17th look so significant. Because Cohen was not in a perfect world, and Cohen did not have the time it would take for enough legitimate invoices to roll through to cover all of the $130K. Stormy needed that money now, within days or perhaps a week at the very most, or else the whole game would be lost.

So Cohen was desperate, and quite possibly out of other options. Based on the previous delays in getting payments to Stormy, there’s a good chance Cohen had already explored other routes at that point for getting the money to Stormy, but had not been able to find a suitable way of doing so.

Which is why it is plausible that, on Oct. 17, 2016, Michael Cohen might have done something very, very stupid: created fake invoices for the Trump Organization to submit to the Trump campaign to cover the amount that Cohen needed to pay to Stormy. (For the record, it probably wouldn’t have even taken desperation for Cohen to have done something this stupid, and if you need further proof of this, then I would like to submit this Esquire article as Exhibit A.).

The available evidence is consistent with a scenario along these lines occurring. Because on October 17th, the Trump campaign made four large-ticket disbursements to the Trump Organization, and on October 25th the Trump campaign made another disbursement that just happened to round out the total to within 28 cents of $130,000. And then, on October 26th, Cohen suddenly came up with the $130,000 he needed to pay Stormy.

Just a Coincidence?

One reasonable question people have raised in response to my tweets about the Trump campaign disbursements is whether this might all just be some kind of crazy random coincidence. Perhaps this is the kind of thing where, although the result might look surprising on the surface, in reality the result is something you might statistically expect to find given the data being looked at. After all, the five disbursements that total $130K are not the only disbursements that were made by the Trump campaign to the Trump organization during the time of the negotiations between Stormy and Trump. There are other ways in which these disbursements can be combined, and different amounts they might add up to.

So, could the fact these five payments equal $130K just all be a coincidence? Some kind of meaningless statistical quirk?

I am not a stats person, and I am in no way qualified to give any sort of mathematical analysis of this question. Luckily, a lot of people who are qualified to do so have become interested in the question too, and they’ve come up with ways of modeling the probability of the “Stormy disbursements” being a coincidental result.

But before getting into that, I’d like to address one issue I’ve seen raised a few times now: that these disbursements are not significant because they occur alongside other, non-significant disbursements. This claim, if true, would essentially make it impossible for money laundering to ever be detected, because hiding a stream of money laundering payments buried in a larger stream of legitimate payments is kind of the whole point. In fact, it would probably be more surprising if there were no “normal” disbursements from the Trump campaign to the Trump Org during the 8-day period at issue here, because it was rare for more than a few days to go by without some kind of Trump campaign-Trump Org disbursement being made. Throughout all of 2015 and 2016, there was a steady stream of payments being made out to the Trump Organization for various items: hotel stays, event planning, event facilities, meeting expenses, restaurant services, rent for office space, rent for other kinds of real estate undefined in the campaign finance reports, and so on.

In the relevant date range here, from October 17, 2016 (the date the payment vehicle LLC was created) to October 25, 2016 (the day before Cohen got the confirmation email that the deposit had been made in what is presumed to be EC LLC’s bank account), there were a total of eight disbursements made by the Trump campaign to the Trump Organization. These disbursements are listed below, with the five disbursements that make up the $130K in blue, with the other three in yellow. (Note that the possible “Stormy disbursements” constitute every large Trump campaign-Trump Org disbursement that occurred on October 17th, and excludes only what appears to be a one-night hotel room fee for Trump’s New York hotel. There were no additional big-ticket items on the 17th that could’ve been used as the basis for an inflated invoice, if Cohen was trying to go that route.)

eight disbursements

And here is where we get back to the math. Given that the $130K total in payments includes some but not all of the disbursements in that time period, what are the odds of the relevant disbursement records coincidentally matching the amount of the settlement paid to Stormy at that time?

The answer is “very bad.”

Will Stancil and his brother Benn Stancil (co-founder of Mode Analytics) took a crack at modeling the probability of the “Stormy disbursements” being the result of chance, and wrote up their findings in an article here:

To explore whether these payments are worth investigating further, we have approached the question from another angle. Instead of examining the individual payments forensically, we have instead focused on the rather close match between the summed payments ($129,999.72) and the $130,000 Daniels payoff. It struck us as fairly unlikely that, by chance alone, so few payments would sum to such a precise figure.

In order to investigate these suspicions, we developed 10,000 sets of simulated Trump campaign payments. Each set contained 10 randomly generated payments. We then searched each of those sets for the combination of payments with the total closest to $130,000.

The simulation confirmed that it is extremely unlikely that, by random chance alone, a set of payments near a specific date would almost equal $130,000.

For each of the 10,000 sets, we generated a “closeness” value — the difference between their “best match” and $130,000. For instance, if the “best match” was $130,014.29, the “closeness” value would be $14.29.

Across 10,000 sets of simulated payments, the 99.9th percentile of closeness was $0.24. The actual degree of closeness in the real-life Trump campaign finance records is $0.28. In other words, out of every one thousand simulated payment sets, only one contained a combination of payments as close to $130,000 as the real-life payments made in the week preceding Oct. 25th.

stancil pic

You can find their code here.

The Stancils also ran a more conservative model, which was more generous in assumptions about how large the data set might have been (i.e., to represent disbursements selected over a longer range of time). Even by making the available time period more generous, however, the odds of an amount close to the Stormy payout amount coincidentally appearing are still very low:

To ensure that slightly altering our assumptions would not dramatically change these findings, we also tested a slightly more conservative model, in which 10,000 sets of 15 payments were examined. To keep the model computationally feasible, we restricted the output to the closest combination of six payments generated by each set.

In this model, the actual observed combination of $129,999.72 falls somewhere between the 98th and 99th percentile of closeness. In other words, while the observed outcome is considerably more likely under these very generous assumptions than under the normal assumptions, it is still quite unlikely overall. The output of both models are in the tables below.

I also heard from Zack Dennis – whose experience in combinatorics comes in part from his work on keyboard replacement methods over at asetniop.com – also got curious about the probabilities involved here, and emailed me to summarize the calculations he’d run to predict the probability of the “Stormy disbursements,” based on Trump Campaign to Trump Organization disbursements 2015-2016. He took a slightly different approach than the Stancils did (who were a bit more generous in their underlying assumptions), but got a similar result.

Zack examined the question in two ways. First, given all the disbursements from Trump campaign to Trump Org, how many random combinations of 8 disbursements contain a set which can add up to $130K? And second, given the chronological list of disbursements, how many times did the Trump campaign make 12 chronological disbursements to the Trump organization, from which 12 disbursement some combination of disbursements can add up to $130K?

For the first question, here is how Zack explained his model to me:

Imagine you have a data set of four numbers [1,2,3,4].  How many different ways can these numbers combine as combinations of two or more, where order doesn’t matter?

[1,2] = 3

[1,3] = 4

[1,4] = 5

[2,3] = 5

[2,4] = 6

[3,4] = 7

[1,2,3] = 6

[1,2,4] = 7

[1,3,4] = 8

[2,3,4] = 9

[1,2,3,4] = 10

That’s a total of eleven different combinations. Let’s say you’re interested in all the possible ways these numbers might add up to 7.  There are two possible combinations: [3,4] and [1,2,4].  That’s two out of eleven.

Now imagine instead of using the original data set of [1,2,3,4] we use the *entire* set of entries in the FEC spreadsheet that you posted starting from the beginning: [$1380.54, $9583.33, $37993.04, $3240.96, $9583.33…] and perform the same process:

[$1380.54, $9583.33] = $10963.87

[$1380.54, $37993.04] = $39373.58

…and so on.

What we’re looking for here are combinations that add up to totals close to $130,000.  In order to simplify the calculation process, I added a few conditions:

  1. I used a total range of one dollar – from $129,999.50 to $130,000.50 – as a target. Your original calculation was within that range at $129,999.72.
  1. I removed all amounts that were exact multiples of $1000.00 – $15k, $9k, $6k, etc. It would be too easy to “cherry pick” a series of these numbers to hit exactly $130,000.00, so we’re not going to consider them (plus, none of the numbers in your original data set were exact multiples – we’re trying to replicate the odds of what you did happening by chance). Plus, it saves some time computationally.
  1. I considered up to eight separate numbers per combination (i.e. [a,b,c,d,e,f,g,h] = total). Building bigger subsets would take too long to process – I wrote my code in javascript, which is not particularly fast, and it took around 12 hours to process.

The total number of possible combinations was 172,325,161,239 (that’s 172 trillion).

The total number of combinations that fit the $130k range was 933,281.

That works out to a percentage of 0.00054%

So based on those numbers, the odds of *randomly* finding any batch of up to eight entries in the spreadsheet that add up to a number that’s approximately as close to your calculation are 1 in 18,464.

You can also find his script here.

Now, the first question Zack was looking at considered combinations of any 8 disbursements, regardless of when they were made during the campaign. So each set could include disbursements made anywhere from April 2015 to December 2016. Which, as you might have realized, isn’t entirely analogous to the question at issue here with the “Stormy disbursements,” because any money laundering transactions of the sort I’ve theorized about here would have occurred during a defined window in time, not randomly throughout the entire campaign. So Zack also turned to look at a second question: using only chronological sets of disbursements (i.e., sets of 12 disbursements that occurred one after another), how many sets of chronological disbursements are there which contain disbursements adding up to within a dollar of $130K?

The answer: exactly one. The only disbursements that fit this criteria are the five “Stormy disbursements.” And those disbursements just happen to have taken place within the exact 9-day period during which any theoretical money laundering would have had to occur.

The Possible Origins of the Stormy Disbursements

From a mathematical point of view, the odds of the “Stormy disbursements” occurring by chance are very, very low. By my reckoning, that should be sufficient on its own to warrant further questioning here. But it also does not prove that any misconduct occurred, because although the odds of this happening by chance are pretty low, by definition even low probability events have to happen once in a while. So the statistical models alone can’t rule out the possibility that the coincidence of the “Stormy disbursements” matching the Stormy settlement payment is just a result of winning the bad luck lottery here.

Which means we need to look at what we know about the Stormy disbursements beyond their simple dollar amounts. While any conclusive answer here would require access to financial records that would be impossible for me to obtain, what I can do is evaluate whether, based on existing public records, any of the “Stormy disbursements” can be shown to be legitimate campaign disbursements. In other words, whether any of those five disbursements totaling $130K can be convincingly explained away as real expenses paid by the Trump campaign for real services provided by the Trump Organization.

And we at least have an idea of what to look for here to try and show that these transactions were legitimate. Because if the “Stormy disbursements” were in fact merely a vehicle used to transfer $130K from the Trump campaign to Trump Org, then they must be either one of two things: (1) payments for fictitious services that were never rendered to the Trump campaign, or (2) duplicate payments for real services that the Trump campaign received, but should not have been paid for twice. In other words: are there real expenses that can be tied to the Stormy disbursements, and is the reason to thing the Stormy disbursements were not duplicate payments for those expenses?

Unfortunately, because of the limited data available from FEC reports, we’re not able to conclusively identify the events that any Trump campaign-Trump Org disbursement may have been associated with, but based on the larger pattern of disbursements from the Trump campaign to Trump Org, there are reasons to suspect that the Stormy disbursements may lack a credible explanation.

First though, a couple caveats about the limits of using the FEC records in an attempt to correlate campaign disbursements with actual campaign events:

  • Not all Trump campaign events at Trump-owned properties have associated campaign disbursements, suggesting either that on at least some occasions the Trump Organization did not charge the Trump campaign for events, or that payment for these events was not identified obviously in the disbursement records for whatever reason.
  • Matching up a particular Trump campaign disbursements with a particular Trump campaign event at a Trump property will not always be possible, as there is no definitive list of “Trump events” to compare against, and it’s theoretically possible that an otherwise inexplicable disbursement is associated with some private Trump event that was not publicized enough to leave a record.

This all makes analyzing the nature of these disbursements difficult, and prevents me from reaching any firm conclusions here based only on the FEC records. Though, on the other hand, it is worth noting that, from a money launderer’s perspective, this inherent ambiguity in the data is something of a bonus. Yes, the campaign disclosure requirements do remove an element of secrecy, but not enough of one on their own to allow for any conclusions that money laundering occurred.

Given these caveats, then, what can we conclude here about the five “Stormy disbursements” based on publicly available information?

The Trump National Golf Club Washington DC Disbursement ($8,544.00)

Let’s start with the Oct. 17th disbursement of $8,544.00 to the Trump National Golf Club Washington DC, out near Sterling, Virginia. This is probably the easiest one to start with, because Trump’s DC golf club was not a hot spot on the campaign trail, which means there are only a few transactions for us to contend with. In fact, I could only find a single Trump campaign event that took place there: an October 25th event that was headlined by Trump’s daughter-in-law, Lara Trump.

The event was a relatively small one, and was hosted by “Diverse Communities in Virginia Supporting Trump.”

trump golf dc event

It was supposed to have been preceded earlier in the day by a campaign rally in Loudoun County, but the event was cancelled as Lara “was stuck in traffic” and could not make it. She did make the Trump National Golf Club DC event, though, and in her remarks to the group, the future president’s daughter-in-law urged those present to disregard anything the media said about Trump: “Don’t believe anything the media tells you. They’re all liars. And now not only do we know they’re liars, we know that they’ve been in Hillary Clinton’s back pocket the whole time.”

Which means there was a genuine event that took place at the Trump National Golf Club DC, and that event could provide a possible explanation for the source of the $8,544.00 disbursement. Although the Trump campaign’s regular practice was to pay the Trump Organization after an event at a Trump property, that does not mean there could not have been occasions on which the Trump campaign made disbursements to the Trump Org in advance.

But there’s a catch: the $8,544.00 disbursement is not the only disbursement that was made to Trump National Golf Club DC in October of 2016. Here is a list of all the disbursements that were made to Trump’s DC golf club in the 2015-2016 campaign (with the possible “Stormy disbursement” marked in blue):

Trump golf dc dis.png

There were two large disbursements made to the club in all: one for $8,544 on Oct. 17th, and one for $11,600 a couple weeks later, on Oct. 31st. Both payments are within the ballpark for what it would cost someone to host a Tuesday all-evening wedding with full buffet dinner at the Trump National Golf Club DC, which means either could have been issued in connection with Lara’s event (though, her event was only two hours and just hors d’oeuvres were served, so the Trump campaign’s payments would seem to have been a bit generous). Which means if the $8,544 payment was a prepayment to Lara Trump’s event, there must necessarily have been two campaign events that took place at Trump’s DC golf club in the weeks before the election, both of which cost approximately $10,000. I have yet to find evidence of a second event that could explain these charges.

Trump International Hotel Washington DC Disbursement ($13,431.88)

Next up is the Oct. 17th disbursement of $13,431.88 to Trump International Hotel in Washington, DC, a.k.a. the Old Post Office building. In the FEC reports, this disbursement is identified as payments for “FACILITY RENTAL/CATERING SERVICES.”

This payment is tricky to nail down because of the sheer volume of activity in DC, and at Trump’s DC hotel, that took place during the campaign. Additionally, there are more reports of campaign events and appearances at the Trump International Hotel than there are disbursements to it, suggesting that not all campaign activity at the hotel was compensated by the campaign.

Additionally, the campaign at times appears to have made indirect disbursements for events at Trump properties. For example, the campaign did not appear to make any direct payments to the Trump International Hotel in DC in connection with the national security meeting hosted there on March 31, 2016, but the Managing Director for Trump’s DC hotel and the General Manager for Trump’s Chicago hotel both appeared to receive payments directly from the campaign in connection with the event:


Which means any kind of direct 1:1 matching between campaign events and campaign disbursements for the DC hotel is probably not possible based on available data. However, if we look only at disbursements made directly to the hotel itself, in total, there were seven disbursements during the campaign (with the possible “Stormy disbursement” marked in blue):

Dc Hotel dis

That first payment on January 12th can be disregarded for the moment, since it could not be connected to any events taking place in the weeks before the election. Which means, based on the campaign’s known events, the best possible explanations for the October 17th disbursement of $13,431.88 is likely in connection with one of two possible events:

  • The Sept. 16, 2016 “birther” press conference/hotel informercial; or
  • The Oct. 26, 2016 hotel event that Trump appeared at

As an initial matter, if the $13,431.88 was in fact in connection with the Oct. 26th event, then that might mean the payment wasn’t connected with Stormy, but the Trump campaign would still have a problem here. Because that event was not a campaign event – it was a ribbon cutting/grand opening ceremony for the hotel – and Trump was in attendance not as a candidate but as the business owner. As such. campaign funds should not have been used in connection with the event. (Notably, this would also apply to the $956.08 lodging charge on Oct. 27th, which looks suspiciously like a charge for someone’s hotel room for the night following the grand opening ceremony…)

sept 16th pic

The Sept. 16, 2016 Press Conference at Trump’s DC Hotel

So excluding the Oct. 26th ribbon cutting, that would leave the infamous “birther” press conference on Sept. 16, 2016 as a possible explanation for the Oct. 17th “facility rental/catering services” disbursement in the amount of $13,431.88. But once again, as with the Trump National Golf Club DC, we’ve got a problem: there are later disbursements for similar values that can’t be explained by known campaign events. Two of them, in fact. One on Nov. 2nd, for $9,245.93, and one on Nov. 14th, for $12,265.61. I think it’s fair to assume that one of these three $9K+ payments was for the Sept. 16th event, but there is no way to determine which one. Nor is there a ready explanation for what the remaining two would have been for. Although it’s possible the Oct. 17th disbursement was legitimate, it could equally be a duplicate payment for either the Nov. 2nd or Nov. 14th disbursements, and based on available data there would be no way to tell.

Trump International Hotel & Tower New York Disbursement ($10,248.00)

This disbursement was the final one in the “Stormy disbursements” series, and the only one of the five disbursements to have occurred on Oct. 25th.

There is also not all that much that can be said about this disbursement, because there just isn’t much to go on in terms of linking it to any known Trump campaign activities. The charge is, presumably, for people affiliated with the Trump campaign for their lodging at Trump International Hotel & Tower. This was a frequent occurrence during the campaign, so obviously something that happened with regularity (at least from August to November), and based on available data, there is no apparent way to evaluate its legitimacy. However, the Oct. 25th disbursement does stand out in one respect – it is the single largest disbursement (below, in blue) that the campaign ever made to Trump’s New York Hotel.

NY Dis

So once again, whether this disbursement was legitimate or not is not something that can be determined based on available data. Invoices for all Trump International Hotel & Tower disbursements would be required to ascertain whether there is in fact an underlying campaign charge associated with it.

Trump International Hotel Las Vegas Disbursements ($18,731.90 & $79,043.94)

Finally, that brings us to the fourth and fifth – and most suspicious – of the “Stormy disbursements,” and that’s the two disbursements to Trump’s Vegas hotel for $18,731.90 and $79,043.94. Both disbursements took place on Oct. 17th (though only the $79K disbursement would be correctly reported in Trump’s October 27th FEC campaign finance report; the $18K disbursement would not be reported until Trump’s December 8, 2016 filing). Here all the disbursements made by the Trump campaign to Trump’s Vegas hotel, with the two “Stormy disbursements” marked in blue.

Vegas dis

These two disbursements are notable for a number of reasons, but perhaps the most obvious one is the sheer dollar figure involved. The combined total is $97,775.84, but even standing by itself, the $79,043.94 disbursements was at that time the single largest disbursement the Trump campaign made to a Trump hotel. There were larger disbursement made to hotels for lodging during the course of the campaign, but only if you count the campaign’s July four-day stay at the Cleveland Westin during the Republican Convention in July, and the election night event at the Manhattan Hilton. There was also a campaign rally that the Trump campaign decided to throw last minute after the first debate — and which the campaign didn’t even organize until the morning of, which on the way to Hofstra University for the debate — and the results of that last minute scramble cost the campaign $97,419.95. So yes, these things can add up, and lodging costs are a significant expense for campaigns. But were they significant enough to explain the $98K disbursements on October 17th?

There are two possible events that might explain the Oct. 17th charges:

  • The third presidential debate in Las Vegas on Oct. 19th
  • A Vegas campaign rally on Oct. 30th

The Oct. 30th rally is a very poor fit for the Oct. 17th disbursement, and I do not believe it provides a viable explanation for those expenses. First of all, the Oct. 30th rally wasn’t even at Trump’s hotel. It was at the Venetian, owned by Trump-supporter Sheldon Adelson. Nor were there any follow-up events in Vegas that might explain the additional charges to Trump’s hotel, because after the 11am rally at the Venetian, Trump left town for two other rallies that day, in Colorado and New Mexico. And we know that after the Oct. 30th rally, the campaign paid the Venetian (or rather its sister hotel) for the rally – to the tune of $114,246.06.

11/3/2016 0:00 THE PALAZZO FACILITY RENTAL – AMEX [SB23.4102] $114,246.06

So a total of $214K, for a rally that lasted maybe a couple hours? That seems extreme even by Trump’s standards, and not a particularly plausible explanation. Which leaves the other possibility: that the Oct. 17th charges were prepayment for the Oct. 19th debate in Vegas. After all, Trump did stay at his hotel while there — something he even brought up in the debate. Although the $100K price tag was described as “lodging” on the FEC reports, this may have been in error. Although lodging alone could not possibly account for the size of the disbursement, a campaign event plus housing a few dozen staffers in the hotel’s priciest rooms could do it.

And there was a campaign event the night of the debate. Well. Sort of. There was this, anyway:

Vegas party.png

Although, according to reports from attendees, the whole things sounds like it was a slightly sad affair.

 “We’ve got Diamond and Silk, what do you think Hillary’s got?” Boris Epshteyn asked me. “Come on, admit it, Republicans are more fun!”

Epshteyn is a senior adviser to Donald Trump’s presidential campaign and late Wednesday evening, after the debate, he stood at the head of a long table in the half-empty restaurant of the Trump International Hotel here, drinking and eating jovially with the rest of the staff. …

Next to Epshteyn was Kellyanne Conway, the campaign manager who sipped red wine and ate carrot sticks, and next to her Rebekah Mercer, the deep-pocketed Republican donor who looks like she could be related to Sarah Palin (though Palin was in the “spin room” after the debate, she wasn’t at the party). The two women whispered and hugged.

While $100K seems like a hefty sum for such a sparsely attended event at Trump’s own hotel restaurant, I can’t say for certain that it would not have cost that much. (Although I will say definitively that if it did cost that much, Trump was ripping himself off here.) Still, this possible explanation runs into the same sort of problems as the other disbursements. First, it would be a prepayment, made in advance of the event itself, which just is not the typical way the Trump campaign operated with regard to Trump Org expenses. And second, although the debate might explain the Oct. 17th payments, that leaves us with more disbursements to the Trump International Hotel Las Vegas than there are events to explain them, which in turn leaves us with the question of how to explain all the other disbursements to Trump’s Vegas hotel.

Because following both the Oct. 19th debate and the Oct. 30th rally at the Venetian, there were, in all, a total of $174,343.58 in additional disbursements to Trump’s Vegas hotel. In fact, one of those disbursements – an Oct. 25th disbursement for lodging, for $16K – would, on the surface, appear much more consistent with usual campaign lodging expenses. But if the lodging expense was not for the Oct. 19th debate, what was it for? And if the Oct. 17th payments really were prepayments for either the Oct. 19th debate or the Oct. 30th rally, what on earth then could be the source of that $150K in total disbursements in late November?

And wait, there’s another complication here. The Trump campaign is not the only entity spending money at Trump properties. In fact, for the Vegas hotel, there were four other disbursements in October and November – three from the Trump Victory PAC and one from the RNC:


That means we have an additional $67,545.30 in spending at Trump’s Vegas hotel being disbursed by Trump-supporting causes in the weeks before the election. And while perhaps I have no conclusive evidence to refute it, based on the public reports of Trump’s campaign activities that I’ve been able to find, I just don’t think I am going to be able to be convinced that the Trump events in Las Vegas in the 2.5 week run up to the election are sufficient to explain the total of $347,074.95 in disbursements to Trump’s business – and that amount is before you even get to any payments associated with the actual rallies he had there!

All of which is a long way of saying this: no, the available records cannot prove that there was no legitimate basis for the “Stormy disbursements,” but neither can they provide any basis from which we can conclude they were in fact legitimate expenses. Given the statistical unlikeliness of the “Stormy disbursements,” the lack of a documented explanation for those expenses means further investigation is warranted.

The only way to verify whether these disbursements were issued as compensation for genuine campaign costs would be to review all the underlying invoices and payment records, to confirm both (1) the invoices exist for an actual service provided by the Trump Organization, and (2) the Oct. 17-25th were not duplicate payments for real Trump campaign events that had already been (or would be) paid by the Trump campaign under a different invoice. And for that to happen, either both the Trump campaign and the Trump Organization will have to voluntarily release records to verify these transactions, or else someone with the ability to compel production will have to decide to seek them.

The Trump Organization’s Controls

Even aside from the “Stormy disbursements,” there is a bigger story here that, to date, I do not believe has been adequately explored or reported on. From a compliance perspective, the Trump campaign’s ongoing use of the Trump Organization as a vendor creates a serious corruption risk, and I’ve seen no indication of controls in place, in either the campaign or the Trump Organization, that could have adequately mitigated the inherent risk created by the commingling of the two organizations. That inherent risk, when combined with the Trump Organization’s lengthy record of eschewing traditional notions of corporate compliance in both its domestic and foreign operations, creates the perfect conditions for misdirection of funds to occur.

That the Trump campaign and Trump Organization did not have sufficient controls in place can be demonstrated here by a few examples which, presumably, did not involve corrupt intent, but which nevertheless show that the way Trump ran his campaign made it possible for the unwarranted event charges to be approved and go undetected for months on end. To start with, let’s take Trump’s Doral property. Trump had lots of events there over the course of the campaign, and disbursements of greater than $1,000 were common. And, at least once, the Trump campaign disbursed over $10,000 to Trump’s Doral business for services that were never rendered.

To show what happened, the following is a list of all disbursements made to Doral from that Oct. 28th through the end of 2016:

10/28/2016 0:00 TRUMP NATIONAL DORAL MIAMI $31,820.97 FACILITY RENTAL – AMEX [SB23.4102]
10/28/2016 0:00 TRUMP NATIONAL DORAL MIAMI $9,587.47 FACILITY RENTAL – AMEX [SB23.4102]
11/8/2016 0:00 TRUMP NATIONAL DORAL MIAMI $21,141.28 FACILITY RENTAL – AMEX [SB23.4102]
11/8/2016 0:00 TRUMP NATIONAL DORAL MIAMI $11,541.20 FACILITY RENTAL – AMEX [SB23.4102]

In this case, the problem with the disbursements is fairly obvious, because two of the payments are for the identical amount of $11,541.20, an obvious sign that there could have been a double payment. And yet, it would not be until four months later that someone discovered the error. Here are all of the records for the disbursement at issue:

11/8/2016 0:00 TRUMP NATIONAL DORAL MIAMI $11,541.20 FACILITY RENTAL – AMEX [SB23.4102]
3/16/2017 0:00 TRUMP NATIONAL DORAL -$11,541.20 AMEX: REFUND: FACILITY RENTAL [SB23.728560]

We don’t know exactly what happened here, but clearly at some point in Nov. 2016, someone signed off on a payment to Trump National Doral that was not owed and should not have been paid, and the controls in place were insufficient to stop the transaction or detect the problem. But to show what a problem this situation is, just imagine what would have happened had the second payment to Doral not been for the exact amount as the previous payment, but had instead been for, say, $16,841.96. A totally plausible amount based on disbursement patterns. And a totally plausible expense, given the apparently frequent campaign events that took place at Doral. Based on FEC records, it would be impossible to conclude one way or another if the expense was legitimate. And, moreover, it is impossible to know if the duplicate payment would ever have been detected, without the tip-off of the amounts matching exactly.

And that’s not the only time in the last months of the campaign that such a mistake occurred. Heck, the campaign twice accidentally overcharged itself for hundreds of dollars’ worth of Trump-brand water bottles that later had to be reversed:


Or take an example from another Nevada campaign event, this time in Reno, at the Sparks Convention Center:


Here, the mistakes were fairly obvious from the FEC filings, and were later corrected. But take the Sparks Convention Center example; what it does show is that a $27K check could be sent out from the Trump campaign when it should not have been, and then go undetected for over four months.

The wrongful disbursements discussed above appear to have been accidental, perhaps the result of some paperwork snafu, but this pattern strongly suggests that it would have been possible for someone in the Trump campaign with access to the pocketbook to have intentionally disbursed campaign funds for campaign events that never happened. Moreover, we also have reason to believe that someone disbursing campaign funds as payment for non-existent campaign expenses could have been able to do so without being immediately detected – because in the accidental disbursements discussed above, in which the duplicate payment were fairly obvious just from the FEC reports, the errors still went undetected until long after the campaign was over and Trump was well into his presidency.

Moreover, the question of whether any unwarranted disbursement might have been made intentionally – of whether the Trump Organization might have knowingly engaged in money laundering with respect to Trump campaign funds – is far from some kind of inflammatory or scurrilous accusation. Trump Organization’s connection to money laundering is a proven fact, many times over, and that’s even before you start looking at the real estate deals in Azerbaijan, Vancouver, SoHo, Panama, or a dozen other locations. I have no hesitation in stating that the Trump Organization is very familiar with money laundering, and has a long history of associating itself with experienced money launderers. (And if you doubt me, just go ask the United States Attorney for the Eastern District of New York just how kind Mr. Sater has been to share with them his wealth of knowledge on the subject.)

As for whether money laundering occurred here, I could not disprove beyond a reasonable doubt that some valid explanation for these strange and unlikely payment patterns might exist. Maybe Trump’s campaign operations were wholly legit, and the five “Stormy disbursements” is no more than the false positive equivalent of winning the lottery. Maybe Sam Nunberg was just making things up when he said on one of his many cable news appearances that there had been someone on the campaign who was stealing from it. Maybe there is nothing going on here.

But there are too many red flags present for the legitimacy of these campaign disbursement to be assumed without evidence. I’m willing to be wrong about the five “Stormy disbursements” being suspicious, but I’m not willing to simply assume that a crazy coincidence is the likeliest explanation here, when there exists a series of disbursements that look exactly like what you’d expect to find if someone had, in an act of desperation, engaged in financial shenanigans on Oct. 17, 2016 in a last-ditch effort to come up with $130K so that the porn star Trump had an affair with and who was threatening to go public could be paid off.

Luckily, I suspect Stormy Daniels is going to be all over this, should her suit remain in open court long enough for her to have the chance to look into exactly where Cohen got that $130K from. Which means perhaps we’ll get an answer here after all. So fingers crossed, and best of luck to you, Stormy.


The Russian Backdoor Overture: A Chart

In today’s episode of The 45th Podcast, Jon Cryer joins Rabia and I for a comprehensive review of the many contacts between Trump and Russia.

To help people follow along, I made a chart of pre-election Trump-Russia contacts that you can view here, which will be updated as inevitable further contacts are made known to the public.

Due to its size, the best way of viewing it right now is through Lucid Chart, but if that doesn’t work for you, I’ve put up a PDF copy as well. (Though please note the rendering will be a bit off!)

Also, the contacts didn’t stop at the election, so don’t forget to check out the chart of post-election contacts between Trump and Russia as well! All charts are updated periodically as new info comes in about the Trump team’s Russia dealings, which, these days, seems to be at least three times a week or so.


Russian Contacts and Investigative Interference: A Timeline

On last week’s episode of The 45th podcast, I went through a timeline of events leading up to Comey’s testimony before the Senate Intelligence Committee on June 8th, with a focus on the Trump Team’s post-election contacts with Russia, and actions by Trump that were either intended to, or could have the effect of, impeding the investigation into those contacts. There have been a few requests for some kind of graphic outlining what was discussed in the episode, so here it is.

Heads up, you’re probably going to have to open the diagram in a new tab to be able to read all of it [PDF]. Also, since there’s only so much that can fit in a graph, I’ve made a separate table, below, with record citations and larger article excerpts.

Trump-Russia Timeline


Nov. 8, 2016: Trump is elected. The transition team begins its work.
Week of Nov. 21, 2016: Flynn Informs Trump’s National Security Transition Team of His Plans to Talk to Kislyak: Flynn, who spent most his time in Trump Tower during the transition, goes to DC to meet with the rest of Trump’s national security “landing team.” Flynn informs the team that he has scheduled “a conversation” with Kislyak.  (WP, 5/5/17).

Billingslea Warns Flynn That His Communications With Kislyak Will Be Intercepted by the U.S. Government: “Flynn was told during a late November meeting that Russian Ambassador Sergey Kislyak’s conversations were almost certainly being monitored by U.S. intelligence agencies.” (WP, 5/5/17). It is possible that this accounts involves some level of revisionist history, as this is information that Flynn — the former DIA director — unquestionably already knew.

Nov. 28-30, 2016: The Trump Transition Team Requests Access to the CIA’s Classified Profile of Kislyak: “Shortly thereafter, during the week of Nov. 28, Billingslea and other transition officials met with lower-level Obama administration officials in the Situation Room at the White House. At the end of the meeting, which covered a range of subjects, Billingslea asked for the CIA profile. ‘Can we get material on Kislyak?’ one recalled Billingslea asking.” (WP, 5/5/17).
Dec. 1 or 2, 2016: Flynn and Kushner Meet With Kislyak in Trump Tower to Discuss the Creation of a Secret “Back Channel” Method of Communication Between the Trump team and the Russian Government That Would Not Be Detected by the United States: News of this meeting was initially disclosed in late March 2017, and in response, the White House issues a statement that the purpose of the meeting was “to explore whether a channel could be set up between the Russian government and the incoming administration to improve relations between the United States and Russia” and that the parties “discussed how the United States and Russia could cooperate on issues in the Middle East.” (NYT, 3/27/17). Two months after news of the Kushner/Kislyak/Flynn meeting first broke, it was reported that these communications went far beyond merely a discussion of ways to “improve relations” between the two countries. Kushner and Kislyak “discussed the possibility of setting up a secret and secure communications channel between Trump’s transition team and the Kremlin, using Russian diplomatic facilities in an apparent move to shield their pre-inauguration discussions from monitoring, according to U.S. officials briefed on intelligence reports.” (WP, 5/26/17).

Flynn, Kushner, and Kislyak Discussed Military Cooperation Between the U.S. and Russia: “The idea behind the secret communications channel, the three people said, was for Russian military officials to brief Mr. Flynn about the Syrian war and to discuss ways to cooperate there.” (NYT, 5/26/17).

Unknown dates in December: The Obama Administration Becomes Alarmed by the Transition Team’s Contacts with Russia and Mishandling of Classified Information: “Obama advisers delayed telling Trump’s team about plans to punish Russia for its election meddling. Obama officials worried the incoming administration might tip off Moscow, according to one Obama adviser.” (AP, 5/5/17).

“After learning that highly sensitive documents from a secure room at the transition’s Washington headquarters were being copied and removed from the facility, Obama’s national security team decided to only allow the transition officials to view some information at the White House, including documents on the government’s contingency plans for crises.” (AP, 5/5/17).

Unknown date between Dec. 3 and Dec. 11, 2016: Kislyak Meets With Kushner’s Assistant, Avi Berkowitz, and Relays a Request For Kushner to Meet with Sergey Gorkov, the Head of a Russian Bank Under U.S. Sanctions: “… Mr. Kislyak requested a second meeting, which Mr. Kushner asked a deputy to attend in his stead, officials said. At Mr. Kislyak’s request, Mr. Kushner later met with Sergey N. Gorkov, the chief of Vnesheconombank, which the United States placed on its sanctions list after President Vladimir V. Putin of Russia annexed Crimea and began meddling in Ukraine.” (NYT, 3/27/17). Kushner’s decision to send a young  but trusted subordinate to the meeting with the Russian ambassador indicates that both parties knew the request for a “meeting” was in fact a way for Kislyak to securely send a message to Kushner, in a way unlikely to be detected by the U.S. government or the media.
Dec. 12 or 13, 2016: Kushner Meets With Gorkov: “Mr. Kushner later met with Sergey N. Gorkov, the chief of Vnesheconombank, which the United States placed on its sanctions list after President Vladimir V. Putin of Russia annexed Crimea and began meddling in Ukraine.” (NYT, 3/27/17).

Gorkov and the White House Give Opposing Explanations for the Purpose of the Meeting with Kushner: “The bank maintained this week that the session was held as part of a new business strategy and was conducted with Kushner in his role as the head of his family’s real estate business. The White House says the meeting was unrelated to business and was one of many diplomatic encounters the soon-to-be presidential adviser was holding ahead of Donald Trump’s inauguration.” (WP, 6/1/17).

Dec. 14, 2016: After Meeting With Kushner, Gorkov Immediately Flies to Japan to Meet with Putin: “After leaving Newark on Dec. 14, the jet headed to Japan, where Putin was visiting on Dec. 15 and 16. The news media had reported that Gorkov would join the Russian president there.” (WP, 6/1/17).
Dec. 19, 2016: “Flynn reportedly called Kislyak on December 19, 2016 to express condolences for the assassination of the Russian ambassador to Turkey. Flynn and Kislyak then exchanged holiday greetings by text on December 25, 2016, according to an account by Sean Spicer.” (WP, 2/14/17).
Dec. 29, 2016: The Obama Administration Expels Diplomats In Response to Russian Interference in 2016 Election: 35 Russian diplomats are expelled, two compounds are closed, and new economic sanctions are announced.

Flynn and Kislyak Have At Least Five Phone Calls Following the Imposition of the New Sanctions: “National security adviser Michael Flynn privately discussed U.S. sanctions against Russia with that country’s ambassador to the United States during the month before President Trump took office, contrary to public assertions by Trump officials, current and former U.S. officials said. Flynn’s communications with Russian Ambassador Sergey Kislyak were interpreted by some senior U.S. officials as an inappropriate and potentially illegal signal to the Kremlin that it could expect a reprieve from sanctions that were being imposed by the Obama administration in late December to punish Russia for its alleged interference in the 2016 election.” (WP, 2/9/17).

Flynn Reassures Russia That Things Will Be Different Once Trump Is In Office:“Throughout the discussions, the message Mr. Flynn conveyed to the ambassador, Sergey I. Kislyak — that the Obama administration was Moscow’s adversary and that relations with Russia would change under Mr. Trump — was unambiguous and highly inappropriate, the officials said. … [C]urrent and former American officials said that conversation — which took place the day before the Obama administration imposed sanctions on Russia over accusations that it used cyberattacks to help sway the election in Mr. Trump’s favor — ranged far beyond the logistics of a post-inauguration phone call. And they said it was only one in a series of contacts between the two men that began before the election and also included talk of cooperating in the fight against the Islamic State, along with other issues.” (NYT, 2/8/17).

Dec. 30, 2016: Putin Announces That Russia Will Not Retaliate Against the U.S.: “Putin regretted that Obama was finishing his term by imposing new sanctions against Moscow, saying that Moscow considered new unfriendly steps of the outgoing U.S. administration a ‘provocation aimed at further undermining the Russia-U.S. relations.’ Russia, which reserves the right to retaliate, will not stoop to the level of irresponsible ‘kitchen’ diplomacy and will determine further steps in mending ties with the U.S. based on President-elect Donald Trump’s future policy, Putin added.” (Xinhua, 12/30/16).

Trump Tweets That Putin is Smart and Russia is Playing the U.S. Media:

2:41pm: “Great move on delay (by V. Putin) – I always knew he was very smart!”

5:18pm: “Russians are playing @CNN and @NBCNews for such fools – funny to watch, they don’t have a clue! @FoxNews totally gets it!”

Jan. 6, 2017: Comey Meets with Trump To Report on Russian Election Interference Investigation (and to Break the News About the Pee Pee Tape): “In that context, prior to the January 6 meeting, I discussed with the FBI’s leadership team whether I should be prepared to assure President-Elect Trump that we were not investigating him personally. That was true; we did not have an open counter-intelligence case on him. We agreed I should do so if circumstances warranted. During our one-on-one meeting at Trump Tower, based on President-Elect Trump’s reaction to the briefing and without him directly asking the question, I offered that assurance. I felt compelled to document my first conversation with the President-Elect in a memo.” (Comey, 6/8/17).
Jan. 7, 2016: Trump Tweets About Russia: “Having a good relationship with Russia is a good thing, not a bad thing. Only ‘stupid’ people, or fools, would think that it is bad! We [ ] have enough problems around the world without yet another one. When I am President, Russia will respect us far more than they do now and [ ] both countries will, perhaps, work together to solve some of the many great and pressing problems and issues of the WORLD!”
Jan. 11, 2017: Erik Prince, Betsy DeVos’ Brother, Meets With a Russian Representative in the Seychelles Islands To Discuss Development of a Back Channel Communication Method: “The United Arab Emirates arranged a secret meeting in January between Blackwater founder Erik Prince and a Russian close to President Vladi­mir Putin as part of an apparent effort to establish a back-channel line of communication between Moscow and President-elect Donald Trump[.] The meeting took place around Jan. 11 [ ] in the Seychelles islands in the Indian Ocean. . . . [T]he UAE agreed to broker the meeting in part to explore whether Russia could be persuaded to curtail its relationship with Iran, including in Syria, a Trump administration objective that would be likely to require major concessions to Moscow on U.S. sanctions.” (WP, 4/3/17) (emphasis added).
Jan. 12, 2017: Washington Post Breaks Story of Flynn’s Phone Calls with Kislyak on Day Ambassadors Were Expelled: “According to a senior U.S. government official, Flynn phoned Russian Ambassador Sergey Kislyak several times on Dec. 29, the day the Obama administration announced the expulsion of 35 Russian officials as well as other measures in retaliation for the hacking. What did Flynn say, and did it undercut the U.S. sanctions?” (WSJ, 1/12/17).
Jan. 13, 2017: Trump Indicates That He Will Lift Russian Sanctions if Russia Assists the U.S. in Syria: Trump tells the Wall Street Journal that Russia can help us fight terrorists (such as, say, in Syria), and “If you get along and if Russia is really helping us, why would anybody have sanctions if somebody’s doing some really great things?” (WSJ, 1/13/17).

Trump Team States Flynn and Kislyak Had One Call on December 28th, Then Clarify That Call Was Actually on December 29th: “Trump adviser Michael Flynn and Ambassador Sergey Kislyak spoke Dec. 29 to discuss scheduling a conversation between Trump and Russian President Vladimir Putin after the president-elect is sworn in, transition spokesman Sean Spicer told reporters Friday. Spicer had initially said the two spoke Dec. 28, the day before the sanctions. Late Friday, Spicer said he was mistaken about the date. He said the call followed an exchange of texts originated by Flynn to wish the ambassador merry Christmas. ‘They exchanged logistical information on how to initiate and schedule that call,’ Spicer said. ‘That was it, plain and simple.'” (Bloomberg, 1/13/17).

Jan. 14, 2017: The White House Acknowledges Flynn’s Calls with Kislyak, But Deny Any Discussion of Sanctions: “During the call, the Russian ambassador invited U.S. officials to a conference on Syria later this month that is being held in Kazakhstan, according to the transition official, who was not authorized to publicly discuss the matter and insisted on anonymity.” (AP, 1/14/17).
Jan. 15, 2017: Vice President Pence States That He Has Talked to Flynn About the Kislyak Calls, and Sanctions Were Not Discussed:

MIKE PENCE:“I talked to General Flynn yesterday, and the conversations that took place at that time were not in any way related to new U.S. sanctions against Russia and the expulsion of diplomats.” (Fox, 1/15/17).

MIKE PENCE: “I talked to General Flynn about that conversation and actually was initiated on Christmas Day he had sent a text to the Russian ambassador to express not only Christmas wishes but sympathy for the loss of life in the airplane crash that took place. It was strictly coincidental that they had a conversation. They did not discuss anything having to do with the United States’ decision to expel diplomats or impose censure against Russians.” (CBS, 1/15/17).

Mid-January, 2017: The White House’s Story on the Nature of Flynn’s Calls with Kislyak Continually Evolves: “AP has also pointed to inconsistencies in the Trump team’s response about the phone calls. While White House Press Secretary Sean Spicer initially claimed there was only one phone call on December 28th, a transition official confirmed that Flynn had spoken with Kislyak on December 29th, ostensibly about having a U.S. presence for the Syrian peace talks in Kazakhstan. According to NBC, the call on December 29th had not been cleared by the White House, and Spicer claimed this call was to set up a future phone call between Trump and Russian President Vladimir Putin.” (Lawfare, 1/25/17).
Jan. 19, 2017: Yates and Comey Debate Whether Informing Trump About Flynn Will Interfere With Investigation: “The internal debate over how to handle the intelligence on Flynn and Kislyak came to a head on Jan. 19, Obama’s last full day in office. Yates, Clapper and Brennan argued for briefing the incoming administration so the new president could decide how to deal with the matter. The officials discussed options, including telling Pence, the incoming White House counsel, the incoming chief of staff or Trump himself. FBI Director James B. Comey initially opposed notification, citing concerns that it could complicate the agency’s ­investigation.” (WP, 2/13/17).
Jan. 23, 2017: Spicer Inaccurately States at Press Conference That Kislyak and Flynn Did Not Discuss Sanctions:

QUESTION: Were those conversations about anything else other than setting up that discussion? And why has that discussion not yet happened between the president and President Putin?

SPICER: So there’s been one call. I talked to General Flynn about this again last night. One call, talked about four subjects. One was the loss of life that occurred in the plane crash that took their military choir, two was Christmas and holiday greetings, three was to — to talk about a conference in Syria on ISIS and four was to set up a — to talk about after the inauguration setting up a call between President Putin and President Trump.

That — I don’t believe that that has been set up yet because the call was to say — they did follow up, I’m sorry, two days ago about how to facilitate that call once again. So there have been a total of two calls with the ambassador and General Flynn. And the second call came — I think it’s now three days ago — that was to say once he gets into office, can we set up that call? It hasn’t — to my knowledge, has not occurred yet.

QUESTION: Any other conversations between General Flynn and Russian members of the government?

SPICER: Not that I’m aware of. And when I say that, what I’m saying is during the transition, I asked General Flynn that — whether or not there were any other conversations beyond the ambassador and he said no. (Daily Press Conference, 1/23/17).

Jan. 26, 2017: Acting Attorney General Sally Yates Meets with the White House to Warn Them That Flynn is Lying About Russia, and At Risk of Being Blackmailed: “Former acting attorney general Sally Yates testified Monday that she expected White House officials to ‘take action’ on her January warning that then-national security adviser Michael Flynn could be blackmailed by Russia, offering her first public statements about the national security concerns that rocked the early days of the Trump administration. . . . ‘We began our meeting telling [White House attorney Don McGahn] that there had been press accounts of statements from the vice president and others that related to conduct that General Flynn had been involved in that we knew not to be the truth,’ Yates said. ‘The vice president was unknowingly making false statements to the American public, and General Flynn was compromised by the Russians.'” (WP, 5/8/17).

McGahn Immediately Informs President Trump About Yates’ Warning on Flynn: “White House officials have said McGahn immediately took the issues raised by Yates to the president but determined there was no pressing criminal issue. It is not clear what other actions, if any, White House officials took after the warning from Yates.” (WP, 5/8/17).

Jan. 27, 2017: McGahn Calls Yates and Asks Her to Come Back in For Another Meeting: At the meeting, McGahn asks four questions:

  • Why did it matter to the Justice Department if one White House official lied to another?
  • What criminal statutes did Flynn potentially violate?
  • Would taking action against Flynn immediately interfere with the FBI’s investigation?
  • Could he see the underlying evidence collected in Flynn’s interview?

In response to the last question, Yates told McGahn that he could see the evidence, but as it was late on Friday afternoon, she said she would have the FBI compile the evidence over the weekend, and asked McGahn to call on Monday and make plans to come in then.

Trump Calls FBI Director Comey and Invites Him to Dinner: “He had called me at lunchtime that day and invited me to dinner that night, saying he was going to invite my whole family, but decided to have just me this time, with the whole family coming the next time. . . . It turned out to be just the two of us, seated at a small oval table in the center of the Green Room. Two Navy stewards waited on us, only entering the room to serve food and drinks.” (Comey, 6/8/17).

Trump Asks Comey For His Loyalty: “A few moments later, the President said, ‘I need loyalty, I expect loyalty.’ I didn’t move, speak, or change my facial expression in any way during the awkward silence that followed. We simply looked at each other in silence. The conversation then moved on, but he returned to the subject near the end of our dinner.” (Comey, 6/8/17).

Jan. 30, 2017: On Monday Morning, Yates Calls McGahn and Says the Evidence Against Flynn is Available for His Review: Yates made arrangements over the weekend for White House officials to meet at the DOJ and review the evidence against Flynn, and on Monday morning she told McGahn he could come in to view it.

On Monday Evening, Trump Fires Yates When She Refuses to Defend the Travel Ban in Court: As a result, Yates does not have knowledge as to where McGahn (or anyone else) came in to review the Trump evidence.

Jan. 31 – Feb. 12, 2017: The White House Does Nothing About Flynn for Two Weeks, Showing No Concern That the National Security Advisor Has Repeatedly Lied and Is Now Compromised:  ¯\_(ツ)_/¯
Feb. 8-9, 2017: Flynn Lies Again About Discussing Sanctions with Kislyak: “Flynn on Wednesday denied that he had discussed sanctions with Kislyak. Asked in an interview whether he had ever done so, he twice said, ‘No.'” (WP, 2/9/17).

Reports Break News of Intercepted Calls Showing That Flynn and Kislyak Discussed Sanctions: In response, Flynn changes his story to “indicate[ ] that while he had no recollection of discussing sanctions, he couldn’t be certain that the topic never came up.” (WP, 2/9/17).

Feb. 10, 2017: Trump Denies Knowledge of Reports of Flynn’s Communications with Kislyak: “Flynn traveled to Florida with Trump aboard Air Force One. During the flight, reporters asked Trump about the Washington Post story while on the way to Mar-a-Lago for the weekend. ‘I don’t know about that. I haven’t seen it,’ Trump said. ‘What report is that?’ He added, ‘I haven’t seen that. I’ll look into that.’ A White House official later said Trump’s ‘full day’ contributed to his lack of knowledge of the story.” (ABC, 3/31/17).
Feb. 13, 2017: Flynn Resigns as National Security Advisor: “Michael T. Flynn, the national security adviser, resigned on Monday night after it was revealed that he had misled Vice President Mike Pence and other top White House officials about his conversations with the Russian ambassador to the United States. Mr. Flynn, who served in the job for less than a month, said he had given ‘incomplete information’ regarding a telephone call he had with the ambassador in late December about American sanctions against Russia, weeks before President Trump’s inauguration. Mr. Flynn previously had denied that he had any substantive conversations with Ambassador Sergey I. Kislyak, and Mr. Pence repeated that claim in television interviews as recently as this month.” (NYT, 2/13/17).
Feb. 14, 2017: Trump Asks Comey To ‘Let[] Go’ of the Flynn Investigation: “When[ ] we were alone, the President began by saying, ‘I want to talk about Mike Flynn.’ Flynn had resigned the previous day. The President began by saying Flynn hadn’t done anything wrong in speaking with the Russians, but he had to let him go because he had misled the Vice President. He added that he had other concerns about Flynn, which he did not then specify. . . . The President then returned to the topic of Mike Flynn, saying, ‘He is a good guy and has been through a lot.’ He repeated that Flynn hadn’t done anything wrong on his calls with the Russians, but had misled the Vice President. He then said, ‘I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.’ I replied only that ‘he is a good guy.’ I did not say I would ‘let this go.'” (Comey, 6/8/17).
March 20, 2017: Comey Testifies Before Congress That There is an Ongoing Investigation Into Collusion Between Russia and the Trump Campaign:

HIMES: So, you used the word coordination which to me suggests that you are in fact investigating whether there was coordination between U.S. persons and the Russians. Is it fair for me to assume that we shouldn’t simply dismiss the possibility that there was coordination or collusion between the Russian efforts and U.S. persons as an investigatory body?

COMEY: Well all I can tell you is what we’re investigating which includes whether there was any coordination between people associated with the Trump campaign and the Russians. (Hearing Before the House Intelligence Committee, 3/20/17).

March 22, 2017: Trump asks Director of National Intelligence Daniel Coats and CIA Director Mike Pompeo to Intervene in FBI’s Investigation of Russian Collusion: “The nation’s top intelligence official told associates in March that President Trump asked him if he could intervene with then-FBI Director James B. Comey to get the bureau to back off its focus on former national security adviser Michael Flynn in its Russia probe, according to officials. … Director of National Intelligence Daniel Coats attended a briefing at the White House together with officials from several government agencies. As the briefing was wrapping up, Trump asked everyone to leave the room except for Coats and CIA Director Mike Pompeo. The president then started complaining about the FBI investigation and Comey’s handling of it… After the encounter, Coats discussed the conversation with other officials and decided that intervening with Comey as Trump had suggested would be inappropriate, according to officials who spoke on condition of anonymity to discuss sensitive internal matters.” (WP, 6/6/17).
March 23 and 24, 2017: Trump Calls Coats and NSA Director Michael Rogers to Request That They Issue Statements Denying Any Evidence of Collusion with Russia: “Trump made separate appeals to the director of national intelligence, Daniel Coats, and to Adm. Michael S. Rogers, the director of the National Security Agency, urging them to publicly deny the existence of any evidence of collusion during the 2016 election.” (WP, 5/22/17).

Coats and Rogers Refuse the Request, Because the Statement Would Be Untrue: “Coats and Rogers refused to comply with the requests, which they both deemed to be inappropriate[.] Trump’s conversation with Rogers was documented contemporaneously in an internal memo written by a senior NSA official[.] . . . ‘The problem wasn’t so much asking them to issue statements, it was asking them to issue false statements about an ongoing investigation,’” a former senior intelligence official said of the request to Coats.” (WP, 5/22/17).

March 30, 2017: Trump Calls Comey Directly To Ask If He Can ‘Lift the Cloud’ of the Russia Investigation Away from His Presidency: “On the morning of March 30, the President called me at the FBI. He described the Russia investigation as ‘a cloud’ that was impairing his ability to act on behalf of the country. He said he had nothing to do with Russia, had not been involved with hookers in Russia, and had always assumed he was being recorded when in Russia. He asked what we could do to ‘lift the cloud.’ I responded that we were investigating the matter as quickly as we could, and that there would be great benefit, if we didn’t find anything, to our having done the work well. He agreed, but then re-emphasized the problems this was causing him. Then the President asked why there had been a congressional hearing about Russia the previous week – at which I had, as the Department of Justice directed, confirmed the investigation into possible coordination between Russia and the Trump campaign.” (Comey, 6/8/17).
April 11, 2017: Trump Calls Comey Again to Ask What Progress He Has Made In Getting Out the News That Trump Is Not Being Investigated: “On the morning of April 11, the President called me and asked what I had done about his request that I “get out” that he is not personally under investigation. I replied that I had passed his request to the Acting Deputy Attorney General, but I had not heard back. He replied that “the cloud” was getting in the way of his ability to do his job. He said that perhaps he would have his people reach out to the Acting Deputy Attorney General. I said that was the way his request should be handled. I said the White House Counsel should contact the leadership of DOJ to make the request, which was the traditional channel. He said he would do that and added, “Because I have been very loyal to you, very loyal; we had that thing you know.” I did not reply or ask him what he meant by “that thing.” I said only that the way to handle it was to have the White House Counsel call the Acting Deputy Attorney General. He said that was what he would do and the call ended.” (Comey, 6/8/17).
May 3, 2017: Comey Testifies That the Russia-Trump Collusion Investigation Is Still Ongoing:

GRAHAM: OK. Do you stand by your testimony that there is an active investigation counterintelligence investigation regarding Trump campaign individuals in the Russian government as to whether not to collaborate? You said that in March…

COMEY: To see if there was any coordination between the Russian effort and peoples…

GRAHAM: Is that still going on?


GRAHAM: OK. So nothing’s changed. You stand by those two statements?

COMEY: Correct. (Comey, 5/3/17).

May 8, 2017: Trump Informs Rosenstein of His Intent to Fire Comey: “On May 8, I learned that President Trump intended to remove Director Comey and sought my advice and input. Notwithstanding my personal affection for Director Comey, I thought it was appropriate to seek a new leader. I wrote a brief memorandum to the Attorney General summarizing my longstanding concerns about Director Comey’s public statements concerning the Secretary Clinton email investigation. I chose the issues to include in my memorandum. Before finalizing the memorandum on May 9, I asked a senior career attorney on my staff to review it. That attorney is an ethics expert who has worked in the Office of the Deputy Attorney General during multiple administrations. He was familiar with the issues. I informed the senior attorney that the President was going to remove Director Comey, that I was writing a memorandum to the Attorney General summarizing my own concerns, and that I wanted to confirm that everything in my memorandum was accurate. He concurred with the points raised in my memorandum. I also asked several other career Department attorneys to review the memorandum and provide edits.” (Rosenstein, 5/19/17). Notably, Rosenstein’s memo does not actually recommend Comey’s firing.
May 9, 2017: Trump Fires Comey, White House States That Trump Was Simply Following Rosenstein’s Recommendation: Initially, the White House’s messaging is (mostly) unified and targeted: Comey was fired on Rosenstein’s recommendation. “Sessions forwarded Rosenstein’s memo to Trump and recommended that he remove Comey from his role. “Based on my evaluation, and for the reasons expressed by the Deputy Attorney General in the attached memorandum, I have concluded that a fresh start is needed at the leadership of the FBI,” Sessions’ letter said.  White House press secretary Sean Spicer also reiterated during a news briefing that night that the decision to fire Comey was driven entirely by the Department of Justice and Rosenstein. … ‘It was all him,’ Spicer said, referring to Rosenstein. ‘No one from the White House. That was a DOJ decision.’ The next day, Vice President Pence told reporters that Rosenstein had independently reviewed and recommended that Comey be fired. Later, however, deputy press secretary Sarah Huckabee Sanders said that Trump had actually been considering firing Comey for months, and that he had asked Sessions and Rosenstein for their recommendations.” (Business Insider, 5/13/17).
May 11, 2017: Trump Changes Course, Admits During Interview That He Decided To Fire Comey Because of the Russia Investigation: “[Rosenstein] made a recommendation, he’s highly respected, very good guy, very smart guy. The Democrats like him, the Republicans like him. He made a recommendation. But regardless of [the] recommendation, I was going to fire Comey. Knowing there was no good time to do it! And in fact when I decided to just do it I said to myself, I said, ‘You know, this Russia thing with Trump and Russia is a made-up story, it’s an excuse by the Democrats for having lost an election that they should’ve won.'” (NBC, Holt interview, 5/11/17).


Thoughts on the Coming Resistance

Most of my free time these days goes to the podcast — or, at least, that’s my excuse for why I haven’t blogged regularly in over a year now, and I doubt I’ll be resuming regular blog posts again any time soon. But I felt the need to write something about what happened two weeks ago, about this future that has not yet happened but soon will be, compelled by a vague feeling that I did not want to let this moment of suspension pass without registering my dissent.

If you’re the kind of person that would be reading this blog, you probably already know about the Hamilton affair. To recap, on Friday the soon-to-be Vice President Pence decided to attend Hamilton, a musical about the American Revolution with an emphasis on parts of America that Pence’s stated policy positions would not appear to support. At the end of the show, as Pence was leaving, Vice President Burr’s actor read out a statement while the rest of the cast linked arms behind him:

We had a guest in the audience this evening. And vice president elect Pence, I see you’re walking out, but I hope you will hear us, just a few more moments… We have a message for you sir, and we hope that you will hear us out. Vice president elect Pence, we welcome you and we truly thank you for joining us here at Hamilton: An American Musical. We, sir — we are the diverse America who are alarmed and anxious that your new administration will not protect us, our planet, our children, our parents, or defend us and uphold our inalienable rights, sir. But we truly hope that this show has inspired you to uphold our American values, and work on behalf of ALL of us, all of us. We truly thank you for sharing this show, this wonderful American story told by a diverse group of men and women of different colors, creeds, and orientations.

In response, the president elect of these United States took to Twitter to denounce the Hamilton cast for “harass[ing]” the vice president elect, declaring that such public statements of dissent “should not happen.” He then demanded that the cast “apologize!” for voicing their concern that the new administration will not protect them.

You’re going to hear this a lot more over the next four years, but: this is not normal, this is not okay, and this is not going to be okay. Trump’s words are chilling, both figuratively and constitutionally, and although the fact those “words” took the form of a social media rant may add an extra air of dystopian parody to the whole mess, they are no less dangerous for that. But I think what leaves me the coldest, what amplifies those feelings of anxiety and alarm the most, is that Trump spent a few extra precious characters out of his 140 to decry that there were “cameras blazing” when this act of dissent occurred. The cast of a Broadway musical humiliated his proxy, and then that humiliation was broadcast to the world. In the president-to-be’s mind, “This should not happen!”

The Hamilton affair was not, of course, an isolated event. Among Trump’s very first acts as the President Elect of the United States was to announce that protests of his presidency were “very unfair” to him, and to inform the world that those protests were not genuine expressions of disagreement among the populace, but an artificial insurgency funded by shadowy forces, and (somehow also) incited by a corrupt media. In the days since, he has launched a barrage of attacks that have de-legitimized the media, both by directly describing a major media publication as “failing” and “dishonest,” and by making self-aggrandizing and fabricated claims of his achievements, which in turn were picked up and reported on by those in the media clinging to the antiquated belief that reality is a meaningful construct for this administration.

And yes, I agree that the Hamilton affair is only one of many serious and disturbing developments in recent days, most of which are being shamefully under-reported. That does not mean that it can or should be dismissed as a theatrical sideshow, though. A president elect’s expressions of outrage that the citizenry would use the First Amendment in a way he doesn’t like is a big deal. The message is clear: the president will be calling out and attacking individual citizens who expose him to public criticism. Unfortunately, based on the experiences of the past 12+ months, it’s a safe bet that this event’s significance will be mostly overlooked in favor of sensationalist headlines and false equivalencies, and the whole kerfuffle will be forgotten entirely by Monday. And all the other presidentially disqualifying events of the weekend will, somehow, be lost in the shuffle.

That’s where the hopelessness starts to find root. What can be done, when the president himself is understood to be so intrinsically corrupt that acts of his corruption cease to be newsworthy events? And why have so many Republican lawmakers capitulated to this pretense that Trump is an acceptable president, when I still believe, must believe, that they too know the emperor has no clothes?

That last question is mostly rhetorical. The opportunity for unchecked and unpopularly-elected power was too much to turn down, and they have convinced themselves things will go better for them than they did for Faust. They believe that they can channel Trump to serve their own ends; I think they are wrong about that. Either way, they have willingly gambled on this country’s future by supporting Trump in the hopes that, when it all shakes out, they will be able to use this opportunity to further their own agendas while minimizing Trump’s more “awkward” policy positions, even knowing that, should the dice land the wrong way, their support will enable Trump to carry out his unconstitutional goals.

The Hamilton affair is one more warning that our elected officials are wrong to make this wager. Trump’s ongoing series of tweets raging at this display defiance by private citizens — four tweets in total, at last count, with one deleted — is not a meaningless distraction, it is a warning. President elect Trump does not have the capability to tolerate dissent to his rule. Although there are many contenders to choose from, it is this failing, I think, that will be the greatest threat to our nation. The guiding stars of Trump’s life are an obsession with vengeance and an unquenchable need for affirmation by the external world; the danger ahead lies in that the office of the presidency will provide him with nearly unlimited resources to fulfill this first directive, while rendering the second permanently beyond his reach.

Starting on January 20th, Trump will attempt to use the power of his office to enforce a belief that he is a worthy leader. He will not succeed. When he realizes that he will never have the respect of the people, he will settle for having their fear instead. If need be (and it will probably need be), he will try to break the Constitution to protect his own ego.

There is no possibility that Trump might instead do well enough at the job to earn the validation he believes is his due, and therefore have no need to mandate it. Trump has no abilities that are desirable in a statesman, and has displayed no aptitude for government administration. Although his “talents for low intrigue and the little arts of popularity” aided him as a campaigner, it is those same attributes that led some of the founding fathers, in an ill-conceived attempt to prevent a Trumpian figure from one day ascending to the presidency, to place the choice of the executive in the hands of a special group of electors rather than with the people. That it was this subversion of the democratic ideal that ultimately made a Trumpian presidency possible is an irony that has not gone unnoticed, though perhaps some cold comfort can be drawn from knowing that it was not democracy itself that failed here. It was the Founders’ failure to embrace democracy completely that brought us this fate.

If things go as well as could possibly be hoped, the next four years will be a painfully awkward moment in our nation’s history. Things will not go as well as could possibly be hoped. If things go bad — like, darkest timeline bad — we may end up learning the answer to Trump’s favorite campaign-trail question: what do we have to lose? Because there may have been periods in our history where four years of rule by an autocratically-inclined idiot would have caused minimal damage, but those times are long past. Our institutions and economies are too interconnected for us to miss a step and not cause the rest of the world to stumble, and we are now living on a planet that, day by day, is becoming less hospitable to human life.

My hope is that, four years from now, we’ll be able to look back at this post and mock it for being overwrought alarmism, and that our institutional mechanisms for self-correction will turn out to have been more robust than my fears. If that happens, I’ll laugh too, at myself, and in relief. I think, though, that denial of the threat Trump poses is more dangerous than any alarmism could ever be, and the American exceptionalism that tells us this can only get sorta bad, that this can’t actually get scary bad, will drag us down faster than Trump’s petty vindictiveness ever could.

Because it takes no special insight to predict that the coming administration is a threat to this country in a way no other administration has been. Trump’s threats to the First Amendment are only one facet of his manifest unsuitability, as he has spent all of 2016 and a good chunk of 2015 demonstrating. For a heavily abridged sampling,

  • Trump does not value the truth, either coming from himself or from others. He lies, constantly, for his own gain; not even his most ardent supporters would (or could) deny that, they just pretend this is a strategy. Which, okay yes, it is, but it is also a terrifying threat to our national security. Our allies cannot rely on America’s word, because the executive is our voice in the realm of foreign affairs, and beginning on January 20, 2017, our word will not be tied to any single objective meaning and will have no predictive value. If you doubt the danger, ask yourself this: what happens when other nations have no idea whether the president of the United States was telling the truth when he said he thought more countries should obtain nuclear weapons, or whether he was telling the truth when he said he thought they should not? What happens when they ask themselves how their neighbors will answer that same question?
  • Trump is corrupt. He is going to wield the office of the president for his maximum financial benefit, and is making only the barest efforts to pretend otherwise. I do not think he will continue with the pretending for much longer. He has already begun laying the groundwork for his newest theme: there is nothing improper or even undesirable for a president to increase his wealth through being president, because he’ll be increasing everyone else’s wealth at the same time, too. He is already profiting from being president, by having his financially untenable hotel propped up by foreign dignitaries that feel compelled to stay there in order to curry presidential favor. He has also had the family members that are running his business empire sit in on meetings with foreign heads of state, and is seeking to have his son-in-law get the top secret clearance necessary to be privy to his foreign affairs briefings; this information will necessarily be used by the Trump family to further the interests of their businesses, because it is impossible that they will not take that information into account when making business decisions.
  • Trump is supporting a white nationalist agenda. He claims to have been elected due to the economy, but his appointments so far have shared one overwhelming focus: white men obsessed with the national security threat posed by non-whites and non-Americans. Only one appointment so far (hi there, Mr. Priebus) breaks this mold, by being just the regular sort of Republican with no close ties to white supremacists, people that have proposed Muslim registration as a national security measure, and/or Russia. All the rest have openly espoused racism and xenophobia as desirable attributes in a government, or are openly on the payroll of foreign despots.

These are not the kinds of things that can happen to a country and then have everything somehow come out okay. These are the kinds of things that happen to a country just before something very dangerous and undemocratic occurs. I do not know what can be done to stop it, but I do know that no resistance can begin until Trump’s fascism is recognized for what it is.

To those who support Trump, I would encourage you to disagree with this assessment while remaining open to the possibility that there may be genuine cause for alarm. Maintain awareness of what the Trump administration is doing and how that compares to our ideals as a nation, and if, at a later date, you should see something his administration has done that undermines those ideals, then speak out against it, even if you maintain support for his presidency as a whole. And to those who are frightened about what the future holds, well, I am right there with you. All I’ve got is this: as a nation, we are really good at falling down and getting back up again. One of our greatest virtues has always been our ability to come back from disaster, even though as often as not we were the ones that invited it in. There is no reason to think it is impossible for us to do so once more.

For those of us who believe that this country has a promise it has not yet managed to fulfill, there is much to grieve, but America has never been close to perfect. The fact we’re even less close now is not an excuse to give up on efforts to strive in that direction. Our current president will likely come to regret, along with the rest of us, his dangerous expansion of the executive power, but Obama’s words to his daughters on what Trump’s election means are the best chance we have of making it through this intact: “[Y]our job as a decent human being is to constantly affirm and lift up and fight for treating people with kindness and respect and understanding.”


Exhibit 31 Was Not a Certified Business Record

In today’s episode of Undisclosed, Postconviction Relief Part 5: Closing Thoughts, we discussed in greater detail how the cellphone records at Adnan’s trial were not the authenticated copy of records that they were purported to be. Although Exhibit 31 — a.k.a. the Frankenzibit — had been presented by the prosecutors as an authenticated copy of AT&T’s business records, the documents that were authenticated by AT&T had been substituted for a different and unauthenticated copy of the records, from which all fax information had been removed.

You can see these differences four yourself by comparing Urick’s fax to AT&T requesting authentication of the State’s copies of the cellphone records, and Exhibit 31 as it was admitted at trial. To show the differences between the two documents, I’ve provided below a side-by-side comparison of each page. (Note that the substantive records begin at Page 2 of Exhibit 31; the first page is the affidavit from AT&T’s custodian.)

Pg 2

Page 2 Comparison

The second page of Exhibit 31 is the subscriber information sheet from AT&T’s 2/17 fax. In the document Urick sent to AT&T for authentication, the top line reads: “SENT BY: 2-17-99 ; 11:30am ; AT&T WIRELESS SVCS-  914103962257 ; #2.”

Page 2 header.png

In Exhibit 31, the top line has been chopped off, and the entire page has been shifted upwards — including the hole punches on the left-hand side, which are now noticeably higher than those on the authenticated copy.

Pg 3

Page 3 Comparison

The third page of Exhibit 31 is the last page AT&T’s 2/22 fax, containing part of the phone records for January 12, as well as blank entries for phone records from January 9 – 11 (prior to the phone’s activiation). On the left side of the document faxed by Urick to AT&T, the edge of the original fax header is visible, while it has been removed from the copy submitted as Exhibit 31.

Pg 4

Page 4 Comparison

The fourth page of Exhibit 31 is the second to last page of AT&T’s 2/22 fax, containing part of the January 14 records, all of the January 13 records, and the beginning of the January 12 records. In Urick’s fax to AT&T, the fax header information has already been almost entirely cut off (although it remains present in the prosecution’s other copy of the January 13 records from the 2/22 fax). However, because the original fax from AT&T was slightly askew, the border of the fax header information is not parallel with the page’s text, and runs off at a ~15° angle. In the corresponding page from Exhibit 31, this has been corrected with the help of a paper guillotine; however, because of the angle required to even up the page, the sheet of paper was no longer a rectangle, and copies made from the cut sheet show where fax header side was cut off (circled in blue, top right of image).

Page 4 - Cut Corner.png

The shadow from where the paper is lying on the copier glass is visible, demonstrating that the corner is not at a 90° angle.

Pg 5

Page 5 Comparison

The fifth page of Exhibit 31 is the third-to-last page of AT&T’s 2/22 fax, containing the beginning of the January 14th records and part of the January 15th records. In Urick’s fax to AT&T, a recognizable portion of the fax header information line is present:

Page 5 header.png

However, in the document submitted as Exhibit 31, the fax header has been removed, and the entire page has been repositioned so that the text is angled correctly.

To break down how this happened, and why this switch went unnoticed at trial, it helps to review a timeline of events resulting in the creation of Exhibit 31:

  • On February 17th and 22nd, during the investigation into Adnan, AT&T faxed copies of Adnan’s phone records to the BPD (the 2/17 and 2/22 faxes, respectively). These copies had fax header information prominently displayed on all pages. It looked like this:

Page 4 header

  • Copies of these phone records were provided to the prosecution in preparation for Adnan’s October 13th trial date.
  • On October 8, 1999, Urick faxed four pages of phone records (one from the 2/17 fax, three from the 2/22 fax) to AT&T’s custodian of records, with a letter stating, “Pursuant to your telephone conversation this date, I am faxing you four pages of AT&T Wireless billing records that we obtained per a subpoena. I would appreciate it if you could return the records to me as certified business records.”
  • The cellphone records faxed to AT&T had the fax header partially removed, although the header remained fully or partially visible on three of the four pages.
  • AT&T’s records custodian reviewed the cellphone records sent by the prosecution, and on October 12th the custodian provided a sworn affidavit stating that “The attached copies of billing records are maintained by AT&T in the ordinary course of business.” The affidavit and records were then sent back to the prosecution for use at trial.
  • The prosecution discarded the certified copies of the phone records that it received back from AT&T, but kept the custodian’s sworn affidavit.
  • Using its own copies of the phone records, the prosecution prepared a new set of the four-page phone records, from which all traces of fax header information had been excised.
  • The affidavit from AT&T’s custodian was then reattached to the prosecution-constructed version of the phone records, and the new records — which had not been reviewed or certified by AT&T — were submitted as certified business records at Adnan’s trial.

In switching an authenticated copy of the phone records for an unauthenticated copy, the prosecution may very well have been motivated by expediency rather than strategy. After all, by that point, the documents would have been a fax of a fax, and possibly a fax of a fax of a fax. He may have decided that the certified business records sent back by AT&T were too messy, and decided to substitute the authenticated records for a “cleaned up” version, one which had been snipped and rotated to make it more professional in appearance.

But the prosecution’s motives in making the switch are irrelevant. An inadvertent failure to disclose exculpatory information has the same constitutional effect as a deliberate failure. Here, regardless of motive, the result was the same: although the genuine certified business records had information which plainly identified them as copies of a faxed document, the counterfeit version did not. A reasonable attorney reviewing Exhibit 31 — such as, say, the Deputy Attorney General of Maryland — could very reasonably conclude that,

 “Indeed, the ‘Subscriber Activity’ reports [sent by AT&T] were neither identified as exhibits nor admitted into evidence. What was admitted into evidence were cellphone records accompanied by a certification of authenticity, signed by an AT&T security analyst, and relied upon by the State’s expert who himself was employed by AT&T as a radio frequency engineer.”

However, contrary to the State’s claims in its recent briefing before the trial court, what was admitted into evidence (1) was a subscriber activity report, and (2) was not a certified business record authenticated by AT&T, but instead a different copy of the phone records that was missing information present in the genuine copy. This isn’t just a case questionable corner cutting by the prosecution that has no practical significance, however. If the instruction sheet is determined to be material and exculpatory evidence by the court, this was a Brady violation. Even had Gutierrez known that AT&T sent the instruction sheet along with all of the billing records that it faxed over — which she didn’t, because the prosecution did not disclose those records to her — Gutierrez still had no reasonable way of knowing that Exhibit 31 was itself a document faxed to BPD by AT&T, to which the instruction sheet applied. The fax headers identifying the origins of Exhibit 31, and directly linking the records to the instruction sheet, had been eliminated, even though that information was present in the genuine copy of the records authenticated by AT&T.


The Absurdity of the State’s Self-Professed “Best Evidence”

As I assume anyone bothering to read this blog would already know, Adnan’s PCR hearing concluded last week after five days, eight witnesses, and approximately 3,000 donuts consumed by various members of the Undisclosed team. We published daily on-the-fly podcast updates of the hearing while it was ongoing, and in a week or two, we’ll be following up with a full-length episode recapping the entirety of the hearing in greater detail.

In the meantime, however, I’d like to take a moment to address some comments made by the prosecutor, Thiru Vignarajah, at a press conference held immediately after hearing ended. During this press conference, he outlined what he believed to be the State’s strongest evidence that Gutierrez was not ineffective in failing to investigate Asia McClain as an alibi witness, in a manner very similar to the claims he had made earlier that day during his closing argument:

Reporter: What’s the state’s best evidence, and why do you think the State is going to win the hearing?

Vignarajah: [. . .] Although there are victims of ineffective assistance of counsel, Mr. Syed is not one of them. And if you’re looking for the best piece of evidence for that, all you have to do is look at the record that defense counsel had in possession until very recently, and what you see is investigative step followed by investigative step, scrutiny after scrutiny, lines of cross examination that were pioneering at the time, and were conducted by one of the most seasoned, effective defense attorneys of her time.

And if you want to focus on two thing it would be this:

First, that the security officer at  the Woodlawn Public Library was interviewed within 3 days of Mr. Syed’s arrest along with the track coach, and so if anyone was wondering if the investigators and the attorneys were taking seriously a potential alibi, they certainly were, and the defense’s own file confirms that.

And secondly, again it’s not a conspiracy, it’s common sense, when you’re client is asking how mail is scrutinized, when you see notes that your best friend is telling detectives that a girl named Asia is being asked to type up a letter, and then you see that letter with lots and lots of facts that come from exactly one place, which is the defendant’s own search warrant, it’s pretty clear that a seasoned attorney like CG could see those warning signs a mile away.

These claims are varying degrees of misleading, irrelevant, and false. They are not based on evidence, but on the prosecutor’s misinterpretation of completely innocent materials found in the defense file. To show why, I will go through them line by line, and explain the actual basis of the State’s claims, and why the reality is radically different from what the State would have the public (and the court) believe.

Although there are victims of ineffective assistance of counsel, Mr. Syed is not one of them. And if you’re looking for the best piece of evidence for that, all you have to do is look at the record that defense counsel had in possession until very recently, and what you see is investigative step followed by investigative step, scrutiny after scrutiny.

If this were the case, the State would have shown this evidence during the hearing. Since he did not, we can safely assume that the defense file does not, in fact, contain evidence of a thorough investigation performed by Cristina Gutierrez.

Does the defense file, as Thiru claims, show “investigative step followed by investigative step”? Well, yes, it is in fact a defense file, so by definition it contains a record of an investigative step followed by another investigative step. But the fact that investigative steps were taken is not evidence in the State’s favor; it is an obvious fact that anyone would know, with or without looking at the defense file. That some form of investigation occurred says nothing about the quality or effectiveness of that investigation. For instance, sending multiple subpoenas to inaccurate addresses is an investigative step — it is just not a very good one. Likewise, obtaining copies of the photos in the prosecutor’s file is an investigative step — but failing to follow up with those photos with a medical expert was an investigative misstep with disastrous consequences for Adnan. Pulling a copy of the Woodlawn High School yearbook and calling the top 8 track athletes listed there is also an investigative step — but choosing to investigate alibi witnesses for the time Adnan was at track based on the track team’s relative athletic ability rather than by their relative likelihood of having seen Adnan on January 13th is so stupid it is tragic.

In short, the State’s evidence that Gutierrez performed a thorough investigation amounts to no more than unsupported claims during a press conferences, which were submitted in lieu of any evidence that existed in a form that permitted it to be presented to the court.

lines of cross examination that were pioneering at the time,

Here, I believe, the State is referring to Gutierrez’s cross of Waranowitz here. He mentioned at some point during the hearing that she was the first to make certain challenges to cellphone evidence, that defense attorneys to this day continue to use. Of course, he neglected to mention that those lines of cross-examination are based on a completely lack of understanding about the functioning of a cellular network.

If further proof is needed of Gutierrez’s complete dereliction of duty when it came to the cell evidence, let’s look at her own words on the subject:

Gutierrez - on the cell evidence

And yet, according to the State, the attorney who did not even look at the cellphone evidence, because she did not care about it, was incredibly effective — indeed, pioneering! — in the field of cell evidence defense.

and were conducted by one of the most seasoned, effective defense attorneys of her time.

The attorney that Thiru is calling “the most seasoned, effective defense attorney of her time” set a state record for most claims brought against her before the Attorney Grievance Commission. Her failures to take even the most basic steps in many of the cases she was involved in during the same period of time she represented Adnan (i.e., failing to brief issues, failing to communicate plea offers, falsely claiming to be consulting with experts she was not) have resulted in incredible amounts of damage to the clients she victimized, both those whose stories we know and many more still whose we do not.

And if you want to focus on two thing it would be this:

First, that the security officer at  the Woodlawn Public Library was interviewed within 3 days of Mr. Syed’s arrest along with the track coach,

On March 3rd, Drew Davis, the defense investigator hired by Adnan’s attorney, interviewed Officer Steve. He did not take any notes of this interview, and the only reference made to these notes in the defense file is from a billing invoice that Davis submitted:

Billing Summary - Drew Davis

Asserting that this document has any relevance to Adnan’s claims in the PCR hearing is so strained that it borders on meritless. On March 3rd, it is virtually certain that neither Adnan nor his defense attorneys had Asia’s letters, which were mailed no sooner than March 2nd and March 3rd. We do not know why Davis spoke to Officer Steve, or what he spoke to him about, but there was nothing significant enough about the conversation to be worth preserving. According to Thiru, though, this is the State’s best evidence against Adnan, because it is proof that shortly after Adnan’s arrest, his attorneys were looking into whether they could locate alibi witnesses for where Adnan was after school that day.1

But if Adnan’s first words to his attorneys were, “I think I was at the library and then I was at track,” that is evidence of innocence, not evidence of guilt! It is the same alibi he is advancing now at the PCR hearing, and his bail attorneys’ prompt initial steps to investigate that alibi shows that they took Adnan seriously.

The fact Officer Steve (presumably) had no useful information to provide the defense investigator is not evidence, in any respect, that Adnan’s alibi was no good. It just means the single witness Davis spoke to could not verify it. In no legal universe is that a basis to desist all further investigative efforts.

As was made clear from the testimony last week of both the Woodlawn librarian and the security guard, however, the security guard’s failure to specifically recall seeing Adnan on January 13th is yet another meaningless fact with no evidentiary relevance. Both the Woodlawn librarian (called by the defense) and the security guard (called by the State) testified that they might remember a student they spoke to that day, but hundreds of students came through the library between 2pm and 4pm, and they would not be able to say whether or not a student hadn’t been in the library based on whether or not they remembered seeing them.

To comment briefly on Officer Mills: his testimony is on my top 10 list of most bizarre witness testimonies I have ever seen in court. Officer Steve was contacted a week before the hearing, and interviewed twice. He was then subpoenaed to testify for the state for as to three facts:

  1. He does not recall being questioned by Davis, Adnan’s attorneys, or anyone else in connection with this case
  2. The library did not have cameras in January 1999 (and therefore Asia is lying)
  3. Adnan Syed was not in the library on January 13, 1999 (and therefore Adnan’s attorneys reasonably did not pursue the Asia alibi)

At trial, he then testified to the following:

1. He does not recall being interviewed by Davis, Adnan’s attorneys, or anyone else in connection with this case

Assuming that Davis really did speak to Officer Steve on March 6, 1999, Officer Steve’s lack of memory of that encounter doesn’t have much significance for Adnan’s case. If, for instance, Davis asked him, “Do you have any records of a disturbance on Jan. 13, 1999,” then Officer Steve would never have known in the first place that he’d been questioned in connection with Adnan’s arrest.

2. He did not remember any cameras on that side of the library building, but it was possible there were cameras he did not know of, because that was not his responsibility.

My notes from the hearing have two exchanges which should clarify how little light Officer Steve was able to shed on this. First, on direct,

Thiru: Is it possible there were cameras at the library that you did not know of?

Officer Steve: Yeah, it’s possible, possible.

And then on cross,

Chris: Could there have been cameras at the library you were not aware of?

Officer Steve: Yes.

Officer Steve has no idea if there were cameras. There could have been, he just did not know of them because they were not his responsibility.

3. He did not see Adnan Syed in the library on January 13th,  but he easily could have been there and Officer Steve either didn’t see him or didn’t remember seeing him.

During cross, Officer Steve frankly acknowledged that, despite what the detectives’ notes said, he could not say for certain whether or not Adnan had been at the library that day. Perhaps he misspoke when speaking to the detectives, or perhaps the detectives took liberties in what they wrote down. Either way, the following exchange tells you all you need to know about whether Officer Steve actually believes he could tell whether or not Adnan had been at the library that day:

Chris: They showed you yearbook photos of a number of students from 17 years ago?
Officer Steve: Yes.
Chris: And they asked you to determine if one of them had been in the library on January 13, 1999?
Officer Steve: Yes.
Chris: That’s kind of a ridiculous question, isn’t it?
Officer Steve, speaking in a knowing/amused tone: I’m not answering that one!

So Officer Steve’s testimony was a complete dud for the State. Nothing about his testimony supports the State’s position at the PCR hearing in any way. The bar for “best State’s evidence” must have been set very low indeed, if this makes the cut.2

and so if anyone was wondering if the investigators and the attorneys were taking seriously a potential alibi, they certainly were, and the defense’s own file confirms that.

Yes, Adnan’s initial attorneys were taking the investigation seriously, because that is what an attorney is supposed to do. Unfortunately, Flohr and Colbert only represented Adnan during the bail stage, and six weeks after his arrest, Gutierrez took over his case. It is Gutierrez’s failure that is the basis of Adnan’s IAC claim, and the fact that his bail attorneys were competent and diligent has no bearing on Adnan’s claim that Gutierrez was ineffective in her representation of him.

And secondly, again it’s not a conspiracy, it’s common sense, when your client is asking how mail is scrutinized,

What Thiru is alleging never happened, and there is no evidence to support it. And unless he is an idiot — which, without question, he is not — he had to have known that the notes that are the basis of his claim have nothing to do with any obstruction of justice scheme. In short, a prosecutor for the State of Maryland misrepresented evidence at Adnan’s PCR hearing, in support of his claim that another attorney — one who was in fact present in that very courtroom — had been and continued to be complicit in a scheme to fabricate the existence of an alibi witness.

Everyone, regardless of their position on Adnan’s guilt, should find this horrifying.

To explain what is going on, it helps to look at the document that is the “source” (scare quotes warranted) of the prosecutor’s claim. The defense file contains a page of notes written by Chris Flohr (Adnan’s attorney during the initial bail hearings) on March 6, 1999, the top of which looks like this:

Flohr notes

These notes contain short, jotted-down references to a number of issues related to Flohr’s representation of Adnan, such as administrative matters, information needed for investigative purposes, getting legal releases signed, and fixing the bail issue in which Adnan’s date of birth was incorrectly listed.

In short: this is an attorney’s to-do list. A list of things for Flohr to discuss with his client when he sees him in jail, things for him to pursue as lines of investigation, and paperwork issues to be taken care of. Items were checked off as he went along — like after Flohr told his client about how to have people send him self-addressed stamped envelope in their letters to him so that he would be able to write them back, and after Flohr gave a routine cautionary reminder that everything his client sent and received through the mail could and would be monitored by authorities.

While I do not know what regulations Baltimore City jails had in place in 1999, sending an inmate a self-addressed stamped envelope with a piece of paper is, in institutions where permitted, a standard way of giving the inmate you are writing the materials necessary to actually write back, and that is clearly what Flohr’s notes here are referencing. As shown from guides published by correctional institutions and other agencies about how to write to inmates:

  • Each week a prisoner is allowed to send one free letter. If they want to send more than this then they need to purchase stamps and envelopes from the prison shop/canteen. Alternatively you can post self addressed stamped envelopes to the prisoner so they can post letters back to you
  • Inmates will be permitted to receive only the following types of materials through routine mail: [. . .] Self-addressed stamped envelopes. These items do not count toward the 15 page limitation for additional materials, but cannot exceed the equivalent of 20 (1 ounce) first class stamps.
  • Further, inmates may possess only the personal property, materials, supplies, items, commodities and substances received or obtained from authorized sources, as permitted in the institution’s procedures. Even the possession of excessive stamps can become an economic bargaining tool. Sending a client only self-addressed pre-stamped envelopes avoids any problems.

But even setting aside all that, Thiru’s conspiracy claim has overlooked an obvious point that disproves his entire argument. Namely, WHY THE FREAKING HELL WOULD ASIA NEED A SELF-ADDRESSED STAMPED ENVELOPE FROM ADNAN?? Asia isn’t in jail! Asia can buy her own envelopes and stamps! And buy her own “one piece [of] paper”! Why, oh why, would this notation from Flohr ever be, in any universe, evidence of Adnan asking for materials that he could use to solicit a false alibi from an acquaintance?

Flohr’s notes are, as anyone with criminal law experience should be able to see, about people writing letters to Adnan, and have nothing do with a hypothetical request to enlist an attorney’s help to carry out a conspiracy to fake an alibi. Flohr’s notes are not, as anyone with common sense should be able to see, about how Adnan can obtain materials to write out to another person and request that they write back with a letter that sets forth a falsified alibi.

In the words of Justin Brown, “I have a problem when prosecutors present info in a manner that they know to be inaccurate.” Thiru is a very smart man, and I will not insult his intelligence by presuming he holds a genuine belief in such a stupid theory, but that raises a much more troubling concern. At the PCR hearing, Thiru accused another attorney of being, at best, silently complicit in a scheme to commit obstruction of justice, and at worst, an active participant in the scheme, despite the fact that Thiru knew or should have known that his supporting “evidence” for this claim was a sham.

This is not okay. This is so far from okay.

Moreover, Flohr was actually in the courtroom for most of Adnan’s five day hearing, available to testify at a moment’s notice. If Thiru believed that Adnan had solicited Flohr’s help in constructing a false alibi, then he should have called him to the stand and asked him about it, not used his imagination to conjure up a conspiracy out of a defense attorney’s routine checklist of things to discuss with his client.

As with the rest of its case at the PCR hearing, however, the State preferred to submit its own willful misinterpretations of innocuous notes in lieu of any actual evidence.

 when you see notes that your best friend is telling detectives that a girl named Asia is being asked to type up a letter,

The Ja’uan notes issue has already been addressed in detail in other places, so I will just add a couple notes to it here. First, if anyone doubts the way in which notes jotted down by the police during an interview can be misleading when read out of context, simply look at Officer Steve’s testimony for your proof. Second, for Thiru to be right about the Ja’uan notes, it would mean that Ritz and MacGillivary were such terrible detectives that a defendant’s friend told them about his scheme to falsify an alibi, and they didn’t take a damned step to follow up on it.

And then there’s one other point in response to Thiru’s claim that is critical: although Thiru says, “when you see notes that…,” implying that Adnan’s attorneys made strategic decisions based upon their interpretation of the Ja’uan notes, such a thing never could’ve happened. Why? Because those notes were not disclosed to the defense until 2010. At the time of Adnan’s trial, no one connected with the defense in any respect ever had a clue those notes existed. The defense could not have obtained this information from Ja’uan, either, because Gutierrez’s team did not make contact with him until February 20, 2000, at the very end of the second trial, and those notes reflect nothing about any possible knowledge he might have had of either Asia or Adnan’s alibi defense. In short, Thiru’s conspiracy reading of the Ja’uan notes had nothing to do with any decision, strategic or otherwise, ever made by the defense.

and then you see that letter with lots and lots of facts that come from exactly one place, which is the defendant’s own search warrant, it’s pretty clear that a seasoned attorney like CG could see those warning signs a mile away.

Thiru made this claim a half dozen times during the hearing, and questioned Asia about it on cross, aggressively and at length. But it is not true. There is exactly one fact that appears in both the search warrant affidavit and Asia’s letters: that Hae was buried in Leakin Park. That’s it. No other facts from Asia’s letters appear anywhere in the search warrant.

3-9 search warrant

Plus, the “facts that come from exactly one place” part of Thiru’s argument is even more bogus, given that not only are the “facts” from Asia’s letters self-evidently not in the search warrant affidavit, but that during the course of the PCR hearing Thiru had been shown numerous sources that did contain those facts, and that Asia would have had access to on March 2, 1999. I guess he must’ve forgotten about that by the time the press conference rolled around.

And this is what Thiru calls the State’s best evidence in opposition to Adnan’s petition for a new trial?

Damn, no wonder I feel so hopeful.

– Susan

1. We know that Adnan told his attorneys that he believed he had a conversation about Ramadan with his track coach, Coach Sye, on January 13th, because that’s what Coach Sye says the defense investigator asked him about. The same day that Davis interviewed Coach Sye (March 6th), he also went to speak to the library security guard. To the extent that any inference can be drawn from this, it is that Adnan may have also identified the library as another location he had visited after school on the day of Hae’s disappearance.

2. So, all that aside, what actually is the deal with Officer Steve? Why on earth did the State call him in the first place, and what exactly did Officer Steve think he was talking about?

Well, best I can figure, based on the exhibits and testimony from the hearing, Officer Steve was under the belief that Hae had been murdered before January 13, 1999, and that he was being questioned about whether he had seen her killer in the library after her death.

Take a look at what the detectives’ notes say from Officer Steve’s second interview:

When [Officer Steve] saw Syed’s picture, he can say for certain he was not in the library the day of Wed, Jan 13, 1999

If Syed was in the library [Officer Steve] states he would have brought it to the attention of police.

At trial, Officer Steve gave testimony that was almost identical to his previous comments to the detectives the week before:

Thiru: If you had recognized Mr. Syed [in the library on January 13th], what would you have done?

Officer Steve: Call 911.

A perfectly reasonable response — if you mistakenly believed that, as of January 13, 1999, Adnan had been a murderer that the police were trying to arrest. Officer Steve testified that he remember seeing Adnan’s picture in the news, so he knew what Adnan looked like, and — as Officer Steve reasonably testified  — if he had seen this murderer at the library where he was a security guard, he would have responded by calling 911. Therefore Officer Steve is confident he did not see Adnan Syed in the library on January 13, 1999, because if he had, he would have called the police to  alert them to the fact that he had found the murderer they were looking for.

So Officer Steve’s testimony was not ridiculous at all, although it appeared that way at first glance. His only mistake was in assuming that the detectives were asking him reasonable questions, and he responded accordingly. Because why on earth would detectives show up at a security guard’s workplace and ask him something as ridiculous as whether he could confirm whether or not a student of no particular note had been it the library on a specific (but uneventful) day 17 years ago? No detective would be useless enough to ask such a thing, surely.

A Follow-Up Post On Cellphone Borrowing, Track Practices, and Wednesdays

In yesterday’s bonus episode of Undisclosed, I mentioned that I agreed with Colin about how Jay’s borrowing of Adnan’s car and phone appeared to be directly tied to their involvement in weed dealing, and further that, based on the calling patterns from the cell records, it appeared that Jay had been regularly borrowing Adnan’s car/phone on Wednesdays during the time that Adnan should have been at track. Since I’ve gotten a few questions about it today from listeners curious about it, I figured I’d put up a quick summary of the records I’m referencing.

First off, though, I should note that any “drug dealing” at issue would be the type of “drug dealing” that necessitates the use of scare quotes — there is no suggestion that anything more serious was going on here than teenagers providing pot to other teenagers. Moreover, based on Jay’s statements in his first police interview, whatever he was involved in was clearly some small time stuff, based on the total dollar amounts involved:

Jay Int 1 - p 66 - 67

(Side note: I wish the police had actually gotten a copy of this check, but I guess they knew it looked really bad for their “Adnan blackmailed Jay into helping with a murder” story.)

So with that in mind, here’s what the phone records show:

Days on which (a) Adnan had a cellphone1; (b) Woodlawn had track practice2; and (3) Adnan was eligible to be at track practice3:

  • Jan. 13
  • Jan. 26
  • Jan. 27
  • Feb. 1
  • Feb. 2
  • Feb. 3
  • Feb. 4*
  • Feb. 5

Days on which Adnan should have been at track practice, but on which there was phone activity inconsistent with Adnan being at track practice4 from 3:30 to 5:00pm:

  • Jan. 13
  • Jan. 27
  • Feb. 1
  • Feb. 3

Days on which Adnan should have been at track practice, but between 3:30 and 5:00pm there were calls made from Adnan’s phone to Patrick, “a guy [Jay] bought marijuana from a whole lot” (2/04/00 Tr. 134):

  • Jan. 13
  • Jan. 27
  • Feb. 3

Days on which Adnan should have been at track practice, but between 3:30 and 5:00pm there were calls made to NHRN Cathy (who was Jay’s friend, and did not know who Adnan was):

  • Jan. 27
  • Feb. 3

Days on which Adnan’s phone made calls originating on either L689B (a.k.a. “the Leakin Park tower”) or L653C (tower on Edmonson Ave., south of Leakin Park):

  • Jan. 13
  • Jan. 27

Weed dealers (a) who sold weed to Jay; and (b) who, according to AT&T’s maps, Jay had to drive through L689B and L653C’s coverage areas in order to get to their houses:

  • Patrick.

Map - LP Area

Woodlawn HS depicted top left. Leakin Park is the grassy area to the center/right of image. Cell towers are marked by triangles. Blue line marks Cooks Avenue, which is mentioned repeatedly in Jay’s stories, and which both L653C and L689B could provide coverage for.

In sum, there is a correlation between (a) Wednesdays that Adnan should have been at track and (b) times when the phone activity shows calls to people only Jay would be calling. Similarly, there is also a correlation between (a) days that Adnan’s phone made calls to a weed dealer that lived near Leakin Park, and (b) days that Adnan’s phone made calls originating on L689B and L653C.

You can draw your own conclusions as to what else this pattern of activity may represent, but it does show that Jay being in possession of Adnan’s phone on a Wednesday afternoon during track practice would not have been an unusual event during this time frame.


1 Adnan got his cellphone on January 12th, and available cell records run through February 18th.

2 There were track meets — and therefore no track practices — on January 12th, 25th, and 28th, and Woodlawn High School was either on a break, had a snow day, or was on a half-day exam schedule on January 14th, 15th, 18th, 20th, 21st, 22nd, and 29th.

Additionally, I’ve only considered here the time period from January 12th – February 5th, due to the fact that Adnan does not appear to have regularly attended track practice following that date. The track meet on January 28th was the last regularly scheduled competition, and although the track season technically continued after, only the school’s top athletes would be competing in the remaining championship meets, Adnan not among them. So although Adnan continued to make sporadic appearances at practices following the last regular season meet, his attendance is reported to have significantly dropped off and it does not appear he went much or at all after the first week of February.

3 Per a track coach interviewed by the detectives, students who had missed school were not eligible to participate in athletics programs that afternoon. Adnan was out of school for a religious holiday on January 19th, and marked as absent on the 25th. He is also marked as absent on February 4th according to one record, but no absence is marked on another, so it’s not completely clear if he was eligible for track that day.

4 January 26th and February 4th also show some activity during these time periods, but not activity would be inconsistent with his attendance at track on those days, so I’ve not included them on this list. On January 26th, there was a call to check voicemail at 4pm, and on February 4th, there was a 10 second call to Adnan’s friend Peter at 4pm. Both calls were on towers that would be expected for a call made from Woodlawn High School.

What the Crime Scene Photographs Show

Previously, on both Undisclosed and our blogs, Colin, Rabia, and I have discussed the significance of the medical examiner’s findings concerning livor mortis. To recap, Dr. Korell’s autopsy report concluded that Hae’s body had fixed anterior (frontal) lividity, and that she had been buried on her right side. She testified to these same facts at trial:

CG: So that, that would tell you that the body was face down when the livor was fixed.
Dr. Korell: Right.
CG: Would it not?
Dr. Korell: Yes.
CG: Okay. Because that would mean the blood would pool on the front of the body .
Dr. Korell: Correct.
CG: And that wouldn’t happen if the body post-death were on its side.
Dr. Korell: Correct. (2/02/00 Tr. 79-80.)

Of course, there’s a problem here. If the body were buried on its right side sometime during the 7:00pm hour, this would preclude the anterior lividity described by Dr. Korell, which means that Jay’s story is dramatically and provably false with respect to the events of January 13, 1999.

Although the 7:00pm burial story would be disproven if looking solely at the autopsy report, two critical questions remained about the report’s validity.

First, was Dr. Korell correct about the anterior lividity? The autopsy photographs were in black and white, which is far from ideal, but multiple forensic pathologists were able to conclude,  after reviewing the photographs and autopsy report together, that Dr. Korell was correct in finding anterior lividity. All found that the lividity was anterior and even on both sides, meaning that the body was laid out flat, not leaned to one side or the other, at the time lividity fixed.

Second, was Dr. Korell correct that the body had been buried on its right side? The autopsy report concluded that it was, but because the State had never permitted the defense to obtain copies of the crime scene photos, we could not independently confirm this. However, there is no reason to think that this part of the report was in error. The autopsy was performed by two pathologists: Dr. Korell and Dr. Aquino.

1 - Aquino

And, although Dr. Korell had not been present at the crime scene, Dr. Aquino was:

2 - Crime Scene Report

(Progress Report, 6/10/99)

As one of the pathologists conducting the autopsy had personally observed the body at the Leakin Park crime scene, he was able to personally assess and report the positioning of the body. His conclusion that the “[t]he body was on her right side” was based on his own observations, not second-hand information from investigators. But did Dr. Aquino somehow make a huge blunder in his autopsy report, writing that Hae had been found on her right side, when really she had been laid out on her front?

In theory, this question should have been trivial to answer. In theory, there should have been crime scene photographs, body diagrams, and reports by crime scene technicians and the forensic anthropologists who performed the excavation, which would have described in detail the positioning of the body and other key facts about the crime scene. In theory, these basic facts should have been part of the record from Day One of the investigation.

In practice, however, there was nothing. No diagrams, no notes, no photos. Aside from the autopsy report, the position in which Hae’s body was found was a black hole as far as the case files for both the police and the defense were concerned. It was not until nine months after the incongruent findings in the lividity had first been noticed that the crime scene photographs were finally obtained by MSNBC, in connection with The Docket’s latest Serial special.

Before explaining what the photographs show, however, let’s review the failures that resulted in a situation in which the defense was denied access to any evidence concerning how Hae had been positioned at the burial site, and why it has taken so long to get conclusive answers to what should have been some of the most basic facts about the case.

The Investigatory Record

It is notable that not a single document in the police record describes the position in which Hae’s body was found. In fact, not one of the reports provided anything beyond the most generalized descriptions of the crime scene. The following is the entirety of available record that was produced to the defense before trial:

4 - 6-10 Report

(Progress Report, 6/10/99)

5 - 2-09 Report

(Crime Scene Narrative, 2/09/99)

(Progress Report, 2/16/99)

(Progress Report, 2/16/99)

(Police Report, 2/09/99)

(Police Report, 2/09/99)

(Surveyor's Map)

(Surveyor’s Map)

(Evidence Diagram)

(Evidence Diagram)

There’s not a single word in any of them which describes how the body was positioned in relation to the ground. Based on these reports, the only facts discernible at all as to how the body was found at the crime scene are that it was:

  1. Partially buried;
  2. Behind a 40′ log;
  3. Approximately 15′ from the west end of the log;
  4. With the head pointing towards the south, and feet pointing towards the north; and
  5. Located either 127′ or 114′ north of N. Franklintown Road (depending on which map you’re using).

Later, on August 2, 1999, the prosecution produced the following memo to the defense, which was described as the “oral report of Dr. Rodriguez,” the forensic anthropologist who disinterred the body:

Oral report of Dr. Rodriguez

Oral report of Dr. Rodriguez

This brief, triple-hearsay memo was the only report ever provided to the defense concerning the forensic findings at the crime scene. It is a prosecutor’s summary of another prosecutor’s notes of a conversation that she had with the forensic anthropologist five months previously. This document exists because in February 1999, prosecutor Vicki Wash spoke to Dr. Rodriguez, and she took notes of what he said. In July, prosecutor Kathleen Murphy wrote a summary of Wash’s notes, and then gave that to the defense.

So whatever Dr. Rodriguez found in his examination of the crime scene, his analysis was filtered through two different prosecutors before Adnan’s attorneys ever got a chance to see it. There is no way to know if Wash’s note were accurate and included everything of importance, and no way to know what Murphy’s “summary” of those notes left out. As a result, we have no idea if the oddities in this short report are truly things Dr. Rodriguez said, or if they are merely the result of a mistaken transcription by either Wash or Murphy in their various iterations of the report. Green plant material underneath — does plant material remain green if buried underground for a month? Orange fiber found on body, blue fiber found beneath body — but wait, why did the trace analysis unit conclude that there was a red fiber, a colorless fiber, and a pink-orange fiber found on the body? Is Rodriguez’s orange fiber near the shoulder Van Gelder’s red fiber near the head, or was it Van Gelder’s pink-orange fiber from a root? And what about the blue fiber, should we just assume it’s the colorless fiber that testing was done on?

Van Gelder's Trace Analysis Report

Van Gelder’s Trace Analysis Report

Prior to trial, the only other evidence of what the crime scene looked like that was handed over to the defense came from Mr. S’s police interviews. On the night of February 9, 1999, one of the detectives wrote down the following based on what Mr. S had said:

Mr. S's Police Statement

Mr. S’s Police Statement

Mr. S also provided the following sketch:

Mr. S's Sketch

Mr. S’s Sketch

And that’s it. Nothing whatsoever concerning whether the body was on its side, back, or front. Almost nothing concerning how it was buried. And inconsistent information concerning even the location of where the body was found.


From the beginning, the prosecution was playing games with what information it turned over concerning the burial site. Although initial discovery was (eventually) handed over by Urick on July 2nd, that discovery was decidedly lacking. Five days later, Gutierrez wrote to Judge Quarles outlining the numerous deficiencies in the State’s production:

  1. Any and all sketches, diagrams, and photographs of the crime scene, to include the victim as welI as any evidence collected.
  1. A legible crime scene log. The log provided was cut-off.

. . .

  1. All police reports, only incomplete reports were provided.
  1. A copy of Det. Bradshaw’s follow-up investigation report. The report in the materials provided is cut-off.

. . .

  1. A copy of any report or documents prepared by Dr. Rodriguez, the forensic scientist at the crime scene.

. . .

  1. Autopsy photographs. The photocopies provided are not legible.

. . .

16. The Medical Examiner’s log with any and all notes made by any personnel concerning the collection of the body.

In addition to the materials that were simply not produced at all, crime scene logs and reports were only partially produced, and the quality of the autopsy photos was so horrible that they showed nothing beyond a rough outline of the body.

The State’s response denied that any further records concerning the crime scene existed:

14 - Amended States Disclosure

In other words, information concerning the burial site had simply never been recorded by anyone. The prosecution’s position was that no one had, at any time, made any diagrams or took any notes of how the body was found at the burial site. Dr. Rodriguez and his team, who had been specially brought in from the Armed Forces Institute of Pathology in Washington, D.C., in order to assist the BPD with the recovery of the body, had failed to document any aspects of the crime scene.

It is worth noting that this is absolutely insane. No investigation should ever, under any circumstances, be conducted this way. There are two possibilities here: either the prosecution falsely represented to the defense (and to the court) that no such documents existed, or else Dr. Rodriguez and his team neglected the most basic aspects of a proper forensic investigation and failed to document any of their activities. See, e.g., Hutchins v. State, 339 Md. 466, 475, 663 A.2d 1281, 1286 (1995) (“The State [ ] ha[s] an obligation to disclose [ ] any written reports or statements and the substance of any oral reports and conclusions of [any ‘experts consulted by the State’] regardless of whether or not the State expected to call [those experts] to the stand to testify.”).

The only further information provided concerning Dr. Rodriguez’s (or Dr. Korell’s) findings consisted of the following disclosure on October 1st:

15 - Amended State's Disclosure

Nothing else was ever produced about the crime scene. No diagrams, no analysis, no notes, no reports. According to the prosecution, Dr. Rodriguez was brought in from Washington to conduct a forensic recovery that BPD was unequipped to handle, but failed to write down a single thing concerning his work.

Obtaining the Crime Scene Photographs

Without any documentation of the crime scene, the only remaining way to determine how the body was positioned is through the crime scene photographs. That catch was that the defense did not have any crime scene photos; Urick had refused to ever provide copies, and instead only permitted the defense to briefly view the photographs prior to trial.

Gutierrez, to her credit, relentlessly and repeatedly sought the photographs, such as in the following letters to Urick:

Defense Letter to the State, 8/5/99

Defense Letter to the State, 8/5/99

Defense Letter to the State, 9/7/99

Defense Letter to the State, 9/7/99

Defense Letter to the State, 1/6/00

Defense Letter to the State, 1/6/00

But it didn’t work. Other than the brief two-hour viewing that Urick permitted prior to trial, and during the trial itself, the defense never had access to these photos.

However, at trial, the prosecution introduced into evidence a series of eight photographs of the burial site, which Dr. Rodriguez described in his testimony. These photographs were acquired from the court last month, and, finally, we were able to definitively confirm what we have known for months: the lividity findings combined with the burial position preclude the possibility of a 7:00pm burial.

These photos were shown to Dr. Hlavaty, who was interviewed in Episode 5 of Undisclosed. After reviewing the newly obtained images, she was able to confirm that the body was positioned on its right side. Because the photos were in color, she was also able to confirm, once and for all, the presence of lividity on the anterior surface of the torso.

In addition to the lividity findings, though, it is worth noting that these findings are also highly significant in terms of what they show about the crime scene. In particular, the body was not at all concealed to the degree that I had expected, based on the trial testimony and police reports that I have been reviewing since Serial ended. The majority of the body is above the level of the forest floor, and is concealed primarily by a pile of loose soil and dead leaves that have been thrown into a pile on top of it. Much more of the body was exposed than I had expected, as well.

My reaction to the photographs was, in fact, much the same as Mr. S’s reaction was to the crime scene. The first thing you notice is that the earth has been disturbed; it is blatant and would be hard to miss. A pile of leaves and dirt have been thrown into a pile, and the forest floor surrounding the pile is bare dirt, as if someone had scooped up all the leaves in arms’ reach to add to the pile. After looking at the dirt and leaf pile, the most striking features are the glossy black hair, and below that the white of Hae’s jacket collar, as well as the completely exposed foot sticking out from the pile of leaves. Large portions of the left knee and hip are also exposed, although the color and texture of the taupe stockings allow those portions to blend in better with the surrounding brown and tan leaves.

The Pressure Marks

The photographs also provide confirmation that Hae’s body was laid out frontally after death because of what they show concerning the pressure marks. Lividity causes discoloration in the areas of the body where the blood has settled due to the effect of gravity, but in addition to the areas of discoloration this process also leaves pressure marks that appear as white patches on the skin. Pressure causes compression of the blood vessels, which results in blood being unable to settle in those areas, and therefore no discoloration occurs, even in a location that is otherwise the lowest area of the body.

In this case, the pressure marks found on Hae’s body provide further evidence that Hae had been buried after lividity had become fixed. First, there are the marks found on Hae’s shoulders: a series of three are similar-sized pressure marks, two on the right and one on the left, at roughly the same level of the body and roughly the same shape. I have made a diagram depicting theses marks’ approximate location:

The areas marked in white are pressure marks with unambiguous and distinct borders. The areas marked in beige are also pressure marks, but their shape is less clear from photos.

The areas marked in white are pressure marks with unambiguous and distinct borders. The areas marked in beige are approximate representations of the pressure marks, but their shape is less clear from photos; the beige should be interpreted to show location and general shape, rather than exact appearance.

The pressure mark on the farthest right of Hae’s shoulders was the most distinct, with clear, straight borders, and its shape is that of a distinct double-diamond pattern:

The dimensions are very precise. Based on the ruler provided for scale, the double diamond mark is:

  • 2 1/2″ inches from top to bottom
  • 1 1/8″ across at widest
  • 5/8″ across at narrowest

The two diamonds on the right shoulder are 2″ apart from point to point, and 1″ apart from the fattest part of the diamonds.

There is also a divot in the center of the rightmost diamond. Its placement makes it appear artificial, as if it were part of the construction of the item. This is especially so when combined with how symmetrical and straight the edges are; whatever it is, I do not think it’s organic.

There is no way to determine if this pressure mark was due to contact with an object in that shape, or if, for example, the object was bar-shaped and the double-diamond pattern is simply a result of greater pressure against the clavicle and shoulder and lesser pressure in-between. The other two marks (one other on the right shoulder, closer to the neck, and a third one on the far left shoulder) do appear roughly similar in shape and size, but their shape is not as distinct as is the one on the far right, as the borders are not as defined and they are not as clearly depicted in available photographs.

Dr. Hlavaty could not identify a possible source based on the marks, but she did confirm that they were pressure points that demonstrated anterior lividity. Although others have suggested that the marks may be caused by bra straps, the pressure marks do not line up with how the bra was on the body, and do not seem to be consistent with pressure marks that would have been caused by that. Whatever their source may be, there was nothing found at the Leakin Park crime scene that could account for the existence of these marks, and the body’s position did not cause these areas to be exposed to any greater pressure than the surrounding areas were subjected to.

The second significant pressure mark is the one found on the far left anterior surface of the torso, starting at a point slightly above the navel and ending at a point slightly below it. Tracing over the pressure mark gives the following zigzag shape:

19 - Pressure Mark

This pressure mark falls at the same level as the waist of Hae’s pantyhose, which had been twisted about; the pressure mark resulted from the constriction of the pantyhose where the waist had bunched due to twisting.

The location of this mark is significant in that it confirms that, when lividity fixed, the lower left side of the body’s abdomen was flat against whatever surface the body was resting on, causing blood to pool there. If lividity had fixed while the body was in the position in which it was found, no lividity could have developed in the lower left anterior of the torso.

What the Newly Obtained Crime Scene Photographs Show

For obvious reasons, we will not make copies of the photographs available to the public, and it is my very deep hope that no one else takes it upon themselves to publish them. Hae’s family doesn’t deserve that, and there is no excuse for such an action. However, the information contained in the photographs is important for Adnan’s case, and a subject of legitimate interest. In order to provide access to this information, while not making sensitive and potentially upsetting photographs available to the public, I have created a model to show the positioning of Hae’s body at the crime scene, as well as the portions of the body that were exposed when it was discovered by Mr. S.

I have taken every effort to make the model as faithful to the photographs as possible, so that when viewed from the same angle the model’s position matches the positioning shown in the photographs. A few caveats are in order, however: (1) In order to show the visible collar, the area of the neck has been obscured; (2) the positioning of the left hand is not shown in the photographs, and could either be palm up or palm down; it is depicted here as palm down; and (3) although all of the hair is depicted in the model, only the top portion of it was actually exposed as the crime scene was initially found; the lower portions were not visible until later stages of excavation. Also note that currently displayed images have been updated slightly from their original depiction when this was first posted.Model 2

Areas of the model marked in blue show the portions of the body that were exposed to the air, and which were visible in photographs prior to any recovery work had been done: the right foot, the left knee, the left hip, a portion of the right wrist and hand, the collar of Hae’s jacket, and the back of her hair.

Orange has been used to mark two of the more prominent pressure marks that would be visible based on the positioning of the model: one on the left shoulder, and one on the left lower torso. The marks on the right shoulder would have been obscured.

Model 5Model 6Model 14Model 4Model 10Model 9Model 13 Model 12 Model 11

Not all of the body was placed below ground; some portions of the body rested on soil at the same level as all of the surrounding forest floor. However, a portion of the body — primarily the torso — rested in a recessed area. In order to depict these conditions, I have used wires to hold the clay up, although in the photographs, these limbs are supported by the soil at the edges of the recessed areas, or by the forest floor itself.

According to Detective MacGillivary, there was a “natural depression” near the log, which is what the body had been placed in.  Although Dr. Rodriguez’s triple-hearsay oral report describes the area as being “dug out,” he never makes this claim in his trial testimony, and simply describes that where she was placed was “very shallow.”

This shallow depression was longer than it was wide, and only large enough to fit parts of the torso. The right knee is resting directly on the forest floor; the exposed areas, mark in blue, show where dirt and leaves had fallen off the sides of her leg, exposing all of it to air except for the lowest inch or so, which is obscured by leaf litter. The left hip is similarly exposed, with the sides uncovered by dirt and leaves due to the effects of gravity, although debris often remained directly on top of the body part. The right foot was entirely exposed and jutted at an angle into the air. The left arm was covered in leaves and not visible; although it was the highest part of the body, the leaves and soil were piled deepest over that area. The right elbow was the lowest part of the body, but is bent sharply so that the hand reaches upwards towards the surface. There was only a single rock placed on any part of the body, and that is the rock referenced in Dr. Rodriguez’s report that was placed on top of the hand. The positioning of the right hand, which indicates that it may have been in rigor at the time of the burial, makes me suspect that the rock was placed in order to hold the hand down, as otherwise rigor would have caused it to stick up well above the forest floor. With the rock on it, only a sliver of the back of the hand, where it meets the wrist, is exposed.

Additionally, it should be noted that the body was not “against” the log as it has sometimes been described. These photos show the model’s position with reference to the log and the rock:
Crime Scene - With Log - Rear View
Crime Scene - With Log - Westward View

Based on the crime scene photographs, there is no possibility that Hae was buried in Leakin Park prior to the fixation of lividity. This puts the earliest estimates of her burial at no sooner than 8-12 hours after death, and quite possibly longer. This means that, if Hae was killed shortly after leaving school, the burial could not have taken place before approximately 10pm.