On the Origins of Stormy Daniels’s $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.

tweet

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:

3/31/2016 DAMELINCOURT, MICKAEL TRAVEL EXPENSE REIMBURSEMENT: ITEMIZATION BELOW IF REQUIRED $1,819.00 DC TRAVEL
3/31/2016 CONSTANTIN, GABRIEL TRAVEL EXPENSE REIMBURSEMENT: ITEMIZATION BELOW IF REQUIRED $1,844.20 DC OTHER

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:

TRUMP VICTORY 10/13/2016 TRUMP HOTEL LAS VEGAS $37,823.09 AMEX PMT [SB17.23144]: TRAVEL: LODGING
TRUMP VICTORY 10/14/2016 TRUMP HOTEL LAS VEGAS $10,860.19 AMEX PMT [SB17.23144]: TRAVEL: LODGING
TRUMP VICTORY 10/27/2016 TRUMP HOTEL LAS VEGAS $10,670.08 AMEX PMT [SB17.23144]: FACILITY RENTAL/CATERING SERVICES
REPUBLICAN NATIONAL COMMITTEE 11/17/2016 TRUMP HOTEL LAS VEGAS $8,191.94 VENUE RENTAL AND CATERING

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]
10/28/2016 0:00 TRUMP NATIONAL DORAL MIAMI $226.84 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]
11/22/2016 0:00 TRUMP NATIONAL DORAL $11,541.20 FACILITY RENTAL AND CATERING SERVICES

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]
11/22/2016 0:00 TRUMP NATIONAL DORAL $11,541.20 FACILITY RENTAL AND CATERING SERVICES
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:

6/8/2016 0:00 TRUMP ICE LLC OFFICE SUPPLIES $428.53 NEW YORK NY
7/29/2016 0:00 TRUMP ICE LLC OFFICE SUPPLIES $428.53 NEW YORK NY
2/21/2016 0:00 THE TRUMP CORPORATION VOIDED CHECK: SERVICES NOT RENDERED -$428.53 NEW YORK NY
9/30/2016 TRUMP ICE LLC OFFICE SUPPLIES $828.26 NEW YORK NY
2/21/2017 TRUMP ICE LLC VOIDED CHECK: OVERPAYMENT -$828.26 NEW YORK NY

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

10/4/2016 0:00 RENO-SPARKS CONVENTION CENTER FACILITY RENTAL [AMEX: SB23.2859911] $27,620.00 RENO NV
10/10/2016 0:00 RENO – SPARKS CONVENTION CENTER FACILITY RENTAL $27,620.00 RENO NV
2/21/2017 0:00 RENO – SPARKS CONVENTION CENTER VOIDED CHECK: OVERPAYMENT -$27,620.00 RENO NV

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.

-Susan

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.

-Susan

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?

COMEY: Yes.

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).

-Susan

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.”

-Susan

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.

-Susan

Serial: Lies, Damned Lies, and Closing Arguments

Note: Rabia Chaudry (Split the Moon), Colin Miller (Evidence Prof Blog), and I started a podcast. It’s called Undisclosed, and it follows Adnan Syed’s case and current appeal. New episodes will be released every other week, on Mondays, and in case that is too long to wait, on the off-weeks we will be releasing short addendum episodes with updates and previews.

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Before reading the post below, I recommend at least listening to Addendum 1, as some of the new information covered there is discussed in this post. And be sure to check us out next Monday, for Episode 2


In closing arguments, the prosecution “is entitled to considerable latitude in summation to argue the evidence and any reasonable inferences that can be drawn from that evidence.” United States v. Green, 25 F.3d 206, 210 (3d Cir. 1994) (quoting United States v. Werme, 939 F.2d 108, 117 (3d Cir. 1991)). However, this latitude does not permit a prosecutor to make false and factually unsupported claims during closing arguments, as “[i]t is a fundamental tenet of the law that attorneys may not make material misstatements of fact in summation.” Davis v. Zant, 36 F.3d 1538, 1548 n. 15 (11th Cir. 1994). Accordingly, prosecutors have an “obligation [ ] to avoid making statements of fact to the jury not supported by proper evidence introduced during trial,” as “the interest of the Government in a criminal prosecution ‘is not that it shall win a case, but that justice shall be done,’ and that ‘the average jury . . . has confidence that these obligations [of fairness and accuracy] will be faithfully observed.'”  Gaither v. United States, 413 F. 2d 1061 (D.C. Cir. 1969),  (citing Berger v. United States, 295 U.S. 78, 88 (1935)).

In the case against Adnan Syed, this obligation was not respected. Prosecutors Kathleen Murphy and Kevin Urick displayed a reckless disregard for the truth in their closing arguments to the jury, both by making material misrepresentations about the physical evidence and by misstating witness testimony. For many of the misrepresentations made in closing, it is difficult to see how the prosecutors could have been unaware of the falsity of their arguments. Regardless of whether those misrepresentations were made intentionally or not, however, the prosecutors in Adnan’s case were “exceedingly reckless, and paid too short shrift to the prosecutors’ ‘obligation’ to seek a conviction only on the basis of facts in the record.” United States v. Mageno, 762 F. 3d 933 (9th Cir. 2014) (quoting Gaither, 413 F.2d at 1079).

Below, I have set forth (in blue) a selection of claims made in the State’s closing arguments, by Murphy, and rebuttal closing, by Urick, and provided an analysis of the accuracy of their representations to the jury.

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Serial: The Maryland Court of Special Appeal’s Unpublished Decision Denying Adnan’s Appeal in 2003

One of the legal aspects of Adnan’s case that Serial gave little attention to (no attention to?) was the outcome of Adnan’s initial appeal, which was rejected by an unpublished opinion in 2003. The parties’ briefs in that appeal have been available online (see here for copies of appellant’s brief and appellee’s brief), but the actual decision handed down by the court was not. As a result, although we knew that the Maryland Court of Special Appeals (CoSA) had rejected Adnan’s arguments (several of which appeared to have a strong legal basis, although might not have necessarily warranted reversing his connection), we had no way of knowing the court’s reasoning for its decision.

After jumping through a few bureaucratic hurdles, I requested a copy of the opinion from the Maryland archives, and it finally arrived last week. Unfortunately, I was also out of town for all of last week, so the opinion got a little waterlogged while it was hanging out in my mailbox. It’s still legible, albeit slightly worse for the wear:

Syed v State - MD CoSA Opinion - No. 923-00 - cover

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