The Blind Spots of CJR’s “Russiagate” [sic] Narrative

Jeff Gerth began his series on the press’ Russia investigation failures by noting that trust in the traditional media collapsed after the 2016 election (a claim based on a statistical error), with a sharp rise in concern about “fake news” and, according to Rasmussen, half of those surveyed thinking the press was the enemy of the people.

Before the 2016 election, most Americans trusted the traditional media and the trend was positive, according to the Edelman Trust Barometer. The phrase “fake news” was limited to a few reporters and a newly organized social media watchdog. The idea that the media were “enemies of the American people” was voiced only once, just before the election on an obscure podcast, and not by Trump, according to a Nexis search.

Today, the US media has the lowest credibility—26 percent—among forty-six nations, according to a 2022 study by the Reuters Institute for the Study of Journalism. In 2021, 83 percent of Americans saw “fake news” as a “problem,” and 56 percent—mostly Republicans and independents—agreed that the media were “truly the enemy of the American people,” according to Rasmussen Reports.

Gerth believes part of the problem stems from an erosion of journalistic norms, which he listed at length in an afterward, starting with the press’ unwillingness to report facts that run counter to the prevailing narrative.

My main conclusion is that journalism’s primary missions, informing the public and holding powerful interests accountable, have been undermined by the erosion of journalistic norms and the media’s own lack of transparency about its work. This combination adds to people’s distrust about the media and exacerbates frayed political and social differences.

One traditional journalistic standard that wasn’t always followed in the Trump-Russia coverage is the need to report facts that run counter to the prevailing narrative.

And in spite of his citation of WaPo’s tracking of the vast number of lies Donald Trump told during his term early in the series, Gerth put great stock in what Donald Trump told him in two interviews, adopting Trump’s attribution of the coverage of Russia for the reality TV star’s decision to start labeling the media, “fake news.”

He made clear that in the early weeks of 2017, after initially hoping to “get along” with the press, he found himself inundated by a wave of Russia-related stories. He then realized that surviving, if not combating, the media was an integral part of his job.

“I realized early on I had two jobs,” he said. “The first was to run the country, and the second was survival. I had to survive: the stories were unbelievably fake.”

This is a critical point: Gerth appears to believe Trump that called the media “fake news” not as part of an effort to manipulate the media or to damage one of the institutions of accountability that might check his power, but instead as part of a good faith response to coverage of him.

From that premise, CJR decided the way to understand the collapse in trust of the media was to focus largely on NYT and WaPo’s performance in their coverage of Russia. 

CJR editor Kyle Pope told me,

What we wanted to do with this piece was focus entirely on the media coverage, without the usual notes about Trump’s failings. Specifically, we wanted to focus largely on the New York Times and the Washington Post, as important leaders of the coverage. This was not intended as a 360-degree roundup of everything written about Trump and Russia.

There are obviously enormous problems with the conception of this project, particularly with media polarization in the US that looks like this (a source Gerth relied on to assess the problem).

Others engaged in the “Russiagate” project correctly recognize the import of cable news in the equation (though most, like Glenn Greenwald, ignore the power of the self-contained bubble around Fox, which doesn’t even attempt to hold itself to standards of truth). In 23,000 words, for example, Gerth never considers whether Fox’s scandalous Seth Rich coverage fostered distrust of the media.

In his series, Gerth spent a great deal of time questioning claims about the impact of Russia’s social media operation in 2016 (which, like many “Russiagate” analysts, he treats as the only possible means by which Russia influenced the election). But he didn’t consider the impact of social media, generally, on this decline in trust, not even in the vast reaches of America where there is no more local news, where news consumers increasingly rely on information fed by algorithms that reward the most inflammatory information, from whatever source.

So even on its own terms, it’s a project designed to fail, because it ignores centrally important parts of the equation.

Worse still, Gerth didn’t even carry out what he claimed to set out to do.

That’s actually one of the reasons I’ve spent so much time dissecting his effort: because the ways in which he claimed to limit his scope, and his deviation from that scope, is itself very telling.

Gerth shows how little WaPo and NYT chased the dossier

Start with his focus on the Steele dossier. The dossier is mentioned or discussed in paragraphs making up over 5,000 words out of Gerth’s 23,000-word series. That’s consistent with the “Russiagate” project, which often treats the dossier as stand-in for the entire Russian investigation (or, here, the coverage of it).

Even regarding the Steele dossier, Gerth’s own summary of their coverage  makes it clear that the NYT and WaPo aren’t the villains of the dossier story. The villains in his account are Michael Isikoff, David Corn, CNN, BuzzFeed, McClatchy, and Jane Mayer.

Gerth struggled to implicate NYT and WaPo in his dossier complaint. He noted that NYT mentioned it, including FBI’s efforts to reach out to its sources, in a February 14, 2017 article he spends  almost 1,000 words attacking.

In the article’s discussion of the dossier, it described Steele as having “a credible track record” and noted the FBI had recently contacted “some” of Steele’s “sources.” Actually, the FBI had recently interviewed Steele’s “primary” source, a Russian working at a Washington think tank, who told them Steele’s reporting was “misstated or exaggerated” and the Russian’s own information was based on “rumor and speculation,” according to notes of the interview released later. The day the Times piece appeared in print, Strzok emailed colleagues and reported that Steele “may not be in a position to judge the reliability” of his network of sources, according to Justice Department documents released in 2020.

But as I note below, the dossier is in no way Gerth’s primary complaint with this article and others in a series of similar reports from NYT.

Gerth also included the dossier in a critique of NYT’s reporting on the Nunes Memo.

At the Times, the coverage of the GOP memo was skeptical while a dueling memo, a few weeks later from the ranking Democrat on the committee, was portrayed more favorably.

The Times, at the start of the piece about the Republican memo, called it “politically charged”; noted, in the next sentence, how it “outraged Democrats”; and did not quote the memo’s allegation of the dossier’s “essential” role in the surveillance. The same day, in a separate piece, the Times again called the GOP memo “politically charged” and quoted the “scathing” criticism by Democrats.

Later that month, the Democrats released their own memo. It said the surveillance warrant “made only narrow use of information from Steele’s sources.” The Times story called it a “forceful rebuttal” to Trump’s complaints about the FBI’s inquiry. In the end, the allegations of abuse by Nunes were confirmed in 2019 when the Inspector General released a report that was a “scathing critique” of the FBI, as the Times told readers at the time.

In a statement to CJR, the Times said: “We stand behind the publication of this story,” referring to its reporting on the Nunes memo.

In doing so, he overstates the extent to which the DOJ IG Report on Carter Page, “confirmed” Nunes’ claims. As I noted in a claim-by-claim assessment after the release of the report, both memos got things wrong and both got things right, and Democrats were right that the dossier was not part of the predication of the Russian investigation. Mostly, though, they were just talking past each other, a problem exacerbated by the secrecy behind which both sides could hide their arguments.

Gerth found a little more to work with in the WaPo.

He made much of the fact that one journalist on a long (and accurate) piece about Trump’s ties to Russia was friends with Glenn Simpson, one of the founders of Fusion GPS, via which the Democrats paid for the Steele dossier.

The lead author of the story, Tom Hamburger, was a former Wall Street Journal reporter who had worked with Simpson; the two were friends, according to Simpson’s book. By 2022, emails between the two from the summer of 2016 surfaced in court records, showing their frequent interactions on Trump-related matters. Hamburger, who recently retired from the Post, declined to comment. The Post also declined to comment on Hamburger’s ties to Fusion.

Here was a tie, Gerth insinuated, that proved journalism collapsed in the face of Hillary’s attempts to push oppo research.

But 1,500 words later in Gerth’s series, he showed that Hamburger pushed back on Fusion tips like the Carter Page one when he couldn’t substantiate them.

[S]ome reporters, aware of the dossier’s Page allegations, had pursued them, but no one had published the details. Hamburger, of the Washington Post, told Simpson the Page allegations were found to be “bullshit” and “impossible” by the paper’s Moscow correspondent, according to court records.

That’s important background to Gerth’s coverage of WaPo’s 2017 story on Sergei Millian

The Post landed a long story about Sergei Millian, a Belarusian-American businessman, on March 29. The top of the piece identified Millian as the source behind the dossier’s most serious allegation, a “well-developed conspiracy” between the Trump campaign and the Kremlin, the same ground covered by the Wall Street Journal and ABC in January. The claim that Millian was a key informant whose information was “central to the dossier” was stated without any attribution or sourcing. In 2021 the Post retracted the parts of the story describing Millian as a dossier source after John Durham, a special counsel looking into the origins of the Trump-Russia investigations, indicted Steele’s main source for lying to the FBI. Durham alleged the fact of Millian being a source had been “fabricated.” The Post editor’s note explained that Durham’s indictment “contradicted” information in the March story, and additional reporting in 2021 further “undermined” the account. The Post also deleted parts of a few other stories that repeated the allegation that Millian was a dossier source.

WaPo retracted much of the story after the Danchenko indictment, with this editor’s note:

The original version of this article published on March 29, 2017, said that Sergei Millian was a source for parts of a dossier of unverified allegations against Donald Trump. That account has been contradicted by allegations contained in a federal indictment filed in November 2021 and undermined by further reporting by The Washington Post. As a result, portions of the story and an accompanying video have been removed and the headline has been changed.

The original account was based on two people who spoke on the condition of anonymity to provide sensitive information. One of those people now says the new information “puts in grave doubt that Millian” was a source for parts of the dossier. The other declined to comment.

WaPo’s retraction (like the CNN “reckoning” which Gerth cites approvingly) were themselves problematic, because (as I noted about the CNN piece) they took John Durham’s false statements indictment against Steele’s primary subsource, Igor Danchenko, insinuating — but falling far short of charging — a conspiracy as a source of fact. Worse still, the indictment was obviously problematic. In it, Durham relied on Millian’s claims, made on social media but not to a grand jury, for a key part of his case. After Millian refused to testify at trial, Durham admitted he had little but hearsay to prove his case. 

And as Danchenko attorney Stuart Sears noted at trial, several of Millian’s communications, in which Millian boasted about his ties to Trump, were consistent with Danchenko’s claims about the call he attributed to Millian.

It’s entirely possible it wasn’t Sergei Millian, but even if it was, the caller only said there was coordination between the campaign and Russia and that there was nothing bad about it. Agent Helson told you that. That’s not anti-Trump, and we do know from the government’s own evidence that Millian was at least telling people he was going to meet with Trump campaign people the week before the phone call, the anonymous phone call. 

Gerth cheered retractions based off an indictment alone over three months after a jury acquitted Danchenko of lying about this call, which he told the FBI he believed, but was not certain, came from Millian. 

And Gerth, who complains about transparency, buried that fact: while Gerth emphasized the WaPo and CNN retractions in Part Two of his series, he didn’t get around to informing readers that Igor Danchenko had been acquitted until Part Four, over 9,000 words and two clicks later.

Gerth elsewhere noted that Mueller’s indictments against Yevgeniy Prigozhin and the GRU hackers haven’t been tried, yet when it served his narrative, he applauded these retractions based on an indictment alone.

Meanwhile, Gerth credited WaPo with breaking the news that the Democrats had funded the dossier, which is ample proof that the WaPo wasn’t shielding the project.

Amazingly, Gerth complained that the NYT didn’t retract anything in the wake of the Danchenko indictment, even though he found so little to complain about in the NYT coverage of the dossier and even though, as he describes, WaPo’s Erik Wemple (who might consider whether his own campaign for dossier accountability went too far, in light of the Danchenko acquittal) called out NYT’s Adam Goldman as one of those who approached the dossier responsibly. Gerth even noted that the NYT acknowledged the flimsiness of the dossier’s allegations in real time.

The Times has offered no such retraction, though the paper and other news organizations were quick to highlight the lack of firsthand evidence for many of the dossier’s substantive allegations;

It’s genuinely not clear what Gerth thinks the NYT should retract, a question I posed to Pope that he declined to answer.

And Gerth makes this complaint even though his series was published four days after NYT’s bombshell report of how corrupt the Durham investigation was. Somehow CJR didn’t find time to remove or amend Gerth’s complaints about NYT’s critical reporting on the Durham investigation, including his complaint that Goldman suggested a junket Barr and Durham took to Italy might be chasing a “conspiracy theory,” when the recent NYT report has revealed it was far worse. 

There are other grave problems with Gerth’s treatment of the dossier, all consistent with the ”Russiagate” project more generally. The DOJ IG Report Gerth relies on so heavily laid out abundant reason to suspect that Russia larded the dossier with disinformation, probably with the participation of Manafort associate Oleg Deripaska.

That’s important given the fragments of truth that appear in the dossier. As Durham briefly acknowledged at trial and as I noted in an interview hosted by CJR, the reason Danchenko’s ties to Clinton ally Chuck Dolan were so significant, and led Durham to charge Danchenko for making a “literally true” statement about Dolan to the FBI, was that Dolan established ties between Olga Galkina — the source of the most problematic claims in the dossier, alleging Michael Cohen spoke directly with the Kremlin about election interference — and Dmitri Peskov. The link raises the possibility that someone who knew about Michael Cohen’s January 2016 call to the Kremlin, to Peskov’s office, a call both Cohen and Trump lied to conceal, was behind the dossier allegation that falsely claimed Cohen had other contacts with the Kremlin. Peskov knew that Cohen and Trump were lying to hide that earlier contact, which made the later false allegation more powerful.

Other records show that Russia likely used Steele for a functional role in their operation. In spring 2016, Deripaska is believed to have been the client who hired Steele for intelligence collection targeting Paul Manafort. Then Deripaska used Steele as part of a brutal double game with Manafort. Essentially, Deripaska used the former British spy’s association with the FBI to increase Manafort’s legal vulnerability while he had Kilimnik exploit Manafort’s financial vulnerability, all of which made it easier to obtain inside information on the Trump campaign at the August 2 meeting. 

And, in a story about the dossier that Gerth doesn’t mention, Manafort came back from what we now know to be a meeting with a Deripaska associate and told Reince Priebus to focus on the dossier’s inaccuracies as pushback on the Russian investigation. That is, the focus on the dossier as a substitute for Trump’s real Russian ties seems to have become part of Russia’s plan, if it wasn’t from the start. If the dossier was deliberate disinformation — and the Republican members of Congress who investigated that document insist it was — then it must be considered part of Russia’s attack on US democracy –  in which Gerth and other “Russiagate” participants are enthusiastic participants.

Polarization and trust in the media lie at the center of Gerth’s project. Yet he failed to consider how the dossier, not the coverage of it, might be a key driving factor in polarization. That makes his project part of the problem.

Gerth’s selective coverage of NYT and WaPo’s Pulitzer-winning journalism

Even while Gerth failed to significantly implicate NYT and WaPo in what he portrays as the gravest journalistic crime in Russian coverage, hyping the Steele dossier, he also ignored key parts of their coverage.

For example, he didn’t acknowledge that WaPo reported on Carter Page’s inflammatory comments in Moscow weeks before Steele did. Much of the focus on Page subsequent to WaPo’s report was based on this public source, not the dossier. It’s one of many events that the press covered for its real news value that Gerth, in his own narrative, suggests could only have happened with Hillary’s intervention.

Gerth also ignored large swaths of NYT and WaPo’s award-winning journalism on Russia, although he covered Trump’s attack on that reporting in the third installment of his series. 

NYT won a Pulitzer in 2017 for ten Russia-related articles and NYT and WaPo shared a prize for a combined 20 stories on the Russian investigation in 2018. Trump has sued the Pulitzer Board for defamation relating to the 2018 award. In his coverage, Gerth suggests that Trump’s lawsuit against the Pulitzer Board  for those awards has merit.

Best as I’ve been able to reconstruct, this page lists the newspaper coverage mentioned in Gerth’s series (in numerous ways, CJR’s decision not to link the media Gerth claimed to discuss made it very difficult to assess his claims, and I made one error in my questions to CJR as a result). The page also lists, at the end, some key stories that Gerth did not address. Those with asterisks — both in the stuff he covered and the stuff he did not — were part of the Pulitzer packages for which NYT and WaPo won prizes.

Gerth included just one of the stories for which NYT won a Pulitzer in 2017, the Manafort secret ledger story (the same story,  as Fusion GPS revealed after Barry Meier attacked them in a book, for which Fusion provided research).

But he ignored the rest. 

That had the effect of hiding the general background on Russia’s international assault on its opponents that NYT, as an institution, would have brought into its coverage of Trump’s suspected ties to the Kremlin in 2017: stories about Russia hunting down its enemies in other countries, Russia’s use of disinformation, the elite hackers Russia was recruiting, and Russia’s cultivation of the far right.

Gerth also ignored two stories that were specifically on point to his project: A September 2016 story revealing how often Julian Assange’s Wikileaks releases served Russia’s political  interests (I raised some concerns about the piece here), and a December 2016 epic that described the Russian hack-and-leak from the DNC perspective (I pointed out the DNC’s changing story about being warned by the FBI here). The DNC story should be particularly important to Gerth’s project because it explicitly made the comparison with the Watergate burglary in 1972 that Gerth complains about in his series. It also provided a great deal of information, much publicly available, backing the hack-and-leak attribution to Russia – an attribution that Gerth claims remains “far from definitive.”

I asked Pope why the Assange and the DNC hack stories weren’t included in the series. He pointed to coverage of other NYT stories as proof CJR wasn’t ignoring the (2017, not 2018) Pulitzer stories.

Do you think it fair to ignore all the stories for which WaPo and NYT did get Pulitzers, including the 2017 ones on WikiLeaks and the DNC hack?

We didn’t ignore them. From the piece: “For the Times, Trump’s mess was a pot of gold: two of the Times stories about the meeting and the emails were part of its winning Pulitzer Prize package.

And … “But before that omission, the Times exposed another piece of the FBI’s Russia puzzle. The paper landed a major story at the end of the year, in time to be included in its Pulitzer package that ultimately shared the prize for national reporting.”

But there were a bunch of Pulitzer winners Gerth left out whose omission is still more problematic, particularly given his suggestion that the entirety of the press’ early 2017 focus on Russia in Trump’s administration stemmed from the publication of the dossier.

For example, Gerth barely mentions the coverage of Mike Flynn’s lies and resignation and its central role, starting even before the publication of the dossier, in press coverage in early 2017. He slips discussion of a key David Ignatius column, the first to report on Mike Flynn’s calls with Russian ambassador to the US, Sergei Kislyak, in between his references to the dossier.

The WSJ and the Times stories were not well received by Fusion. At first, they feared for Steele’s safety. Then they felt the Times’ behavior was “improper,” because it had “unilaterally” published material “it had learned off the record,” the founders wrote in their book.

Hours after the Times story ran, the Post upped the temperature on Russia even more. Columnist David Ignatius disclosed that incoming national security adviser Michael Flynn had phoned Russia’s US ambassador “several times” at the end of the year, according to “a senior US government official.” Ignatius noted the talks had come on the day the Obama administration had expelled Russian diplomats in retaliation for the country’s hacking activities, so he questioned whether Flynn had “violated” the spirit of an “unenforced” law barring US citizens from trying to resolve “disputes.”

Ignatius went on to write that it might be a “good thing” if Trump’s team was trying to de-escalate the situation. But Ignatius didn’t know the substance of the conversations. Hours before his story went online, Ignatius appeared on MSNBC and, while not disclosing his upcoming Flynn exclusive, said “it was hard to argue” against the need to “improve relations with Russia.”

The existence of Flynn’s talks with the ambassador was known by Adam Entous, a reporter then at the Post, but he held off writing anything because the mere fact of a contact wasn’t enough to justify a story. “It could have been something innocent,” Entous, now with the Times, said in an interview, “something he would be praised for.”

On the heels of the Ignatius column, the FBI’s “investigative tempo increased,” according to FBI records, and the Senate intelligence panel announced an inquiry into Russia’s election activities. (The House Intelligence Committee announced a similar effort later that month.)

Two days after the Senate announcement, Bob Woodward, appearing on Fox News, called the dossier a “garbage document” that “never should have” been part of an intelligence briefing.

But he doesn’t reveal why the FBI’s investigative tempo increased in the wake of Ignatius’ column. 

Stories that the WaPo published that he ignored did. A Pulitzer-winning WaPo report published the same day revealed that Flynn was denying he had discussed sanctions with the Russian Ambassador, the first of many compromising lies Trump’s associates told in the early days of his Administration. Flynn’s lies (as Mueller confirmed in his congressional testimony) created the risk that he could be blackmailed, which led the FBI and DOJ to respond more aggressively than they otherwise might have. Another Pulitzer-winning WaPo story explained all that on the day Flynn resigned. 

Later in the spring, a Pulitzer-winning NYT report revealed that Trump knew Flynn was under investigation for his secret relationship with Türkiye even before the president appointed him to be National Security Adviser. Gerth’s silence about all these stories is particularly damning, given that he later gets a key detail about Flynn’s prosecution wrong, which I’ll return to.

Other award-winning stories revealed still more Russian ties that Trump and his associates were trying to hide. A March story from WaPo — yet another Pulitzer winner — revealed that Jeff Sessions had failed to disclose some interactions with Sergey Kislyak, the same ambassador  with whom Flynn was undermining Obama foreign policy during the transition. An April Pulitzer-winning story from the NYT revealed that Jared Kushner had omitted transition period meetings with Russians — not just Kislyak, but also the head of a sanctioned bank — in his security clearance paperwork.

While Gerth may have mentioned a May article for which NYT won a Pulitzer, if he did, he did so only as part of his complaint that the NYT repeatedly referred to the line from Trump’s interview with Lester Holt in which he referred to “the Russian thing” in his explanation for firing Comey.

A tweet from the show on May 11 set the narrative for the Holt interview: “Trump on firing Comey: ‘I said, you know, this Russia thing with Trump and Russia is a made-up story.’” Those few words, by suggesting Comey’s firing was aimed at getting the FBI inquiry off his back, provided fresh ammunition to anti-Trumpers.

The full interview, which was available online, presented a more nuanced story, and appeared to reflect what his advisers told him: firing Comey could prolong, not end, the investigation. Trump told Holt, soon after the controversial words, that the firing “might even lengthen out the investigation” and he expected the FBI “to continue the investigation,” to do it “properly,” and “to get to the bottom.”

The media focused on the “Russia thing” quote; the New York Times did five stories over the next week citing the “Russia thing” remarks but leaving out the fuller context.

But Gerth’s account elided the entire reason Trump’s NBC quote was used in that particular NYT article: because Trump told Kislyak and Sergey Lavrov roughly the same thing, privately, on the same day.

President Trump told Russian officials in the Oval Office this month that firing the F.B.I. director, James B. Comey, had relieved “great pressure” on him, according to a document summarizing the meeting.

“I just fired the head of the F.B.I. He was crazy, a real nut job,” Mr. Trump said, according to the document, which was read to The New York Times by an American official. “I faced great pressure because of Russia. That’s taken off.”

Mr. Trump added, “I’m not under investigation.”

Gerth doesn’t address the real concerns presented by Trump privately bragging about firing the FBI director – in charge of counterintelligence – to his Russian visitors.

Indeed, given Gerth’s focus on Trump’s use of “fake news,” he might have at least mentioned the last lines of the NYT story:

At one point, Mr. Trump jokingly asked whether there were reporters in the room.

“No,” Mr. Lavrov said. “No fake media.”

Whether you think that Trump’s adoption of the term “fake news” was merited or not, the answer to Trump’s question, “Russia, if you’re listening,” was yes, they were.

Gerth also appears to have paid no attention to a Pulitzer-winner from WaPo written in the same time frame, revealing that Trump shared highly classified Israeli intelligence with his Russian visitors in the same meeting, another cause for concern that Gerth simply makes disappear. 

Those aren’t the only damning stories Gerth ignored. As Pope emphasized to me, Gerth credited NYT for two of three Pulitzer-winning stories on the June 9 meeting that Don Jr took with a Russian lawyer in hopes of acquiring dirt on Hillary– the July 10 one revealing that Don Jr took a meeting with Russians offering dirt, and the July 11 one revealing Don Jr’s enthusiastic response. But I don’t believe he credited the WaPo for their July 31 Pulitzer-winning story revealing that Trump drafted Don Jr’s misleading statement, claiming a meeting about dirt on Hillary and sanctions relief was about adoption.

The omission is really telling given Gerth’s take on a July 19 story from the NYT (which did not win a prize). In an interview with three NYT reporters, Trump successfully got the NYT to participate in his efforts to obstruct the investigation by airing his threats to fire Jeff Sessions (he had asked Corey Lewandowski to fire Jeff Sessions on the same day). In the interview, Trump also confirmed that he and Putin spoke about the topic of his misleading statement before drafting it, meaning adoptions. But Gerth deemed that interview important primarily because Mike Schmidt asked Trump about the dossier.

A week after the Trump Tower story, the president conducted a serendipitous interview with three Times reporters, including Schmidt, who asked if Comey’s sharing of the dossier with Trump before his inauguration was “leverage.” Trump replied, “Yeah, I think so, in retrospect.”

After the Oval Office sit-down, an aide, worried about the possibility of repercussions from an impromptu interview, sought Trump’s reaction.

“I loved that,” the aide, who requested anonymity, recalled him saying. “It was better than therapy. I’ve never done therapy, but this was better.”

This is a fairly astounding view on the relative newsworthiness of the interview — I’ve pointed out the importance, to Trump’s obstructive purpose, of NYT’s decision to bury the Putin tie rather than dedicate an entire story to it. It’s also a prime example of how the unrelenting focus on the dossier by “Russiagate” adherents diverts attention from far more damning events, both creating in that unrelenting focus the narrative they claim to combat, and in the process burying the real events that “Russiagate” adherents claim could only come as part of a manufactured narrative.

I asked CJR, “Why do you believe a comment on the dossier was more important than a scoop substantiating Trump’s problematic ties to Putin?” but it was another of the questions the magazine’s editor declined to answer.

There are more Pulitzer winners that Gerth left out, including a WaPo story describing both Trump’s refusal to take steps to protect American democracy from Russian interference…

Nearly a year into his presidency, Trump continues to reject the evidence that Russia waged an assault on a pillar of American democracy and supported his run for the White House.

The result is without obvious parallel in U.S. history, a situation in which the personal insecurities of the president — and his refusal to accept what even many in his administration regard as objective reality — have impaired the government’s response to a national security threat. The repercussions radiate across the government.

Rather than search for ways to deter Kremlin attacks or safeguard U.S. elections, Trump has waged his own campaign to discredit the case that Russia poses any threat and he has resisted or attempted to roll back efforts to hold Moscow to account.

… As well as Russia’s assessment of the “staggering return”  achieved by their interference operation.

U.S. officials said that a stream of intelligence from sources inside the Russian government indicates that Putin and his lieutenants regard the 2016 “active measures” campaign — as the Russians describe such covert propaganda operations — as a resounding, if incomplete, success.

Moscow has not achieved some its most narrow and immediate goals. The annexation of Crimea from Ukraine has not been recognized. Sanctions imposed for Russian intervention in Ukraine remain in place. Additional penalties have been mandated by Congress. And a wave of diplomatic retaliation has cost Russia access to additional diplomatic facilities, including its San Francisco consulate.

But overall, U.S. officials said, the Kremlin believes it got a staggering return on an operation that by some estimates cost less than $500,000 to execute and was organized around two main objectives — destabilizing U.S. democracy and preventing Hillary Clinton, who is despised by Putin, from reaching the White House.

The bottom line for Putin, said one U.S. official briefed on the stream of post-election intelligence, is that the operation was “more than worth the effort.”

But the stories from the first half of 2017 that Gerth left out are key. They not only reveal the real reason that the FBI investigation picked up in early 2017, they also show that a great deal of important journalism provided abundant reason to be concerned about all the secrets about Russia that Trump and his aides were keeping, independent of the dossier.

The contacts with Russian spies that were later confirmed

That focus – the ties with Russia that Trump, his National Security Adviser, his Attorney General, and his son-in-law failed to disclose – makes Gerth’s chief complaint about the NYT coverage look very different.

He appears especially peeved over a series of NYT stories in this same time period that described the sheer number of contacts that investigators were discovering with various Russians described by the paper as intelligence officers.

Gerth’s critique relies heavily on a Peter Strzok annotation of the February 14 story that Strzok shared with top FBI officials (parts of which, detailing how few call records the investigation had yet obtained, explain why early reports Gerth points to to make claims about the investigation, including one from James Clapper, are meaningless). It is absolutely true that Strzok found no basis for the NYT to claim that the Russians with whom Trump and his aides were in contact were Russian spies. 

Gerth also reviews how Comey disavowed such reports in his public testimony to Congress, with support from Devin Nunes.

That section of the series, covering all four stories, is over 2,500 words long.

As Gerth described it, when NYT has been challenged on these stories, they’ve stood by them. I share Gerth’s curiosity regarding NYT’s sources for the stories, but like Gerth himself, the NYT is not about to share their sources. 

It’s worth noting, though, that Gerth seems to believe that the US-based three letter agencies (or the Congressional personnel who’ve been briefed by those agencies) referenced in Strzok’s memo are the only possible sources for these stories. We know that at least five other intelligence services — the UK, the Dutch (from whom the US got a great deal of intelligence on the operation), the Spanish, the Ukrainians, and the Israelis — would have had their own views about which foreign interlocutors with Trump aides were spies. We know of a number of witnesses, not in government at all, who told Mueller they believed one or another interlocutor was a spy. We also know of a number of overt spies (such as Emirati ones) who had a role in the international effort to influence Trump. And we know of contacts – like that between Stone and Guccifer 2.0 – that were legitimately viewed as a spy contact when they started to become known around this time.

The clearest error in the NYT series pertains to the claim that an investigation into Stone had already been opened, but that’s an error SSCI seems to have shared, because on March 16,  Senator Richard Burr told Don McGahn the FBI was investigating Paul Manafort, Roger Stone, Carter Page, and “Greek Guy.”

In the years since, however, the US government has come to believe more of the people known to have been interacting directly with Trump’s aides were Russian spies.

Konstantin Kilimnik — who along with at least two other Deripaska allies have been described as Russian agents in official US documents — is a particularly important one, given Gerth’s complaints that the NYT didn’t call Kilimnik for comment when the record shows they did (including in the March 3 one).

Gerth’s claims about the evidence that Kilimnik was a spy were nothing short of fanciful, including a perennial “Russiagate” favorite — which he credits to John Solomon’s scoop, from a period when Solomon was part of Rudy Giuliani’s outreach to people like Dmitry Firtash – that Kilimnik had been a source for the State Department.

As for Kilimnik possibly being a Russian spy, the only known official inquiry, by Ukraine in 2016, didn’t result in charges. More recent claims that he worked for the Russians, by the Senate intelligence panel in 2020 and the Treasury Department in 2021, offered no evidence. Conversely, there are FBI and State Department documents showing Kilimnik was a “sensitive source” for the latter. (The documents were disclosed a few years ago by John Solomon, founder of the Just the News website. Kilimnik, in an email to me, confirmed his ties with State.)

One primary objective of most spies, of course, is to infiltrate the agencies of other governments.

I asked CJR why Gerth claimed SSCI had no evidence against Kilimnik when their section substantiating their assessment about Kilimnik includes 16 bullet points, over half redacted, and they also included a separate 5-page, largely redacted section showing more fragmentary evidence that Kilimnik had a role in the hack-and-leak. I also asked why Gerth thought the FBI, under Trump, would have issued a $250,000 reward for Kilimnik’s arrest.

Those questions also went unanswered.

So the NYT may well have been ahead of the FBI’s assessment in spring 2017 (and their report that Stone was already part of the investigation has been shown to be wrong). But those reports really aren’t ahead of what the US intelligence community says they have since corroborated. Moreover, many of the Pulitzer stories that Gerth doesn’t mention show that Trump and his associates were aggressively lying to hide their ties to Russians or their interlocutors, and criminally so, in the case of Flynn and George Papadopoulos (and, ultimately, Michael Cohen and Roger Stone, too). That background — the lies that Flynn and Sessions and Kushner were telling about their Russian ties — is important background to these stories Gerth hates, yet he makes no mention of them.

Gerth’s main remaining gripe about the WaPo is even more remarkable. He spent six paragraphs on the WaPo’s scoop reporting the FISA order targeting Carter Page.

In early April, the Post story on Page landed, calling the surveillance “the clearest evidence so far that the FBI had reason to believe during the 2016 presidential campaign that a Trump campaign adviser was in touch with Russian agents. Such contacts are now at the center of an investigation into whether the campaign coordinated with the Russian government to swing the election in Trump’s favor.” It noted Page’s “effusive praise” for Putin and mentioned Schiff’s congressional recitation of the Page allegations in the dossier. Relying on anonymous sources, it gave a vague update on the dossier’s credibility: “some of the information in the dossier had been verified by US intelligence agencies, and some of it hasn’t.”

At the Times, the newsroom was irked about getting beaten by the Post. “Times is angry with us about the WP scoop,” Strzok texted to an FBI colleague, a few days later.

But the Post scoop was incomplete. Its anonymous sources mirrored the FBI’s suspicions but left out the bureau’s missteps and exculpatory evidence, as subsequent investigations revealed. It turns out that the secret surveillance of Page was an effort to bring in heavier artillery to an FBI inquiry that, in the fall of 2016, wasn’t finding any nefarious links, as the Times reported back then. Agents were able to review “emails between Page and members of the Donald J. Trump for President Campaign concerning campaign related matters,” according to an inquiry in 2019 by the Justice Department Inspector General. FBI documents show the surveillance of Page targeted four facilities, two email, one cell, and one Skype.

Still, even with the added surveillance capability, the investigation had not turned up evidence for any possible charges by the date of the Post piece, which came four days after the secret surveillance, called FISA, for the Foreign Intelligence Surveillance Act, was renewed for the second time. (Page was never charged.)

The IG review also found that the FISA warrant process was deeply flawed. It relied heavily on the dossier, including the fabricated Millian allegation of a conspiracy, the IG found. Furthermore, the report said the warrants contained seventeen “significant errors and omissions,” such as leaving out exculpatory information about Page, including his previous work for the CIA and comments he made to an undercover FBI informant. And by the time of the Post piece, the dossier’s credibility was collapsing; the FBI knew the CIA called it “internet rumor,” and on its own the FBI “did not find corroboration for Steele’s election reporting,” according to the IG report.

The Post spokesperson, who would only speak on background, said the article on Page was “fair and accurate” and meant to reflect “how deeply the FBI’s suspicions were about Page.” They acknowledged the story was incomplete, noting that “at that time there was a lot that was not publicly known.” [my emphasis]

This passage commits several errors. The FBI targeted Page not because they were looking for heavier artillery. They did so because Page was about to travel internationally and they wanted coverage of that trip. (The FBI consistently described the FISA targeting of Page as “productive” or “fruitful.”) And Bill Barr’s DOJ didn’t withdraw the probable cause claim for Page’s first two FISA orders. The applications against him, which were based in part on his voluntary sharing of non-public information with known Russian intelligence officers, alleged he knowingly aided and abetted foreign spies.

Over time, there would be more than those four facilities, and in fact one main reason FBI submitted the especially problematic June 2017 application was because the FBI wanted to access financial information and two encrypted messaging apps, the latter out of suspicion that Page had destroyed a phone once he discovered he was under investigation.

The FBI also had concerns about Page’s initial denial in a March 16, 2017 interview that he had sought out some Russian official to identify himself as the Male-1 in court filings for one of the Russians trying to recruit him some years earlier.

There was evidence for possible charges; there was evidence when the FBI first opened an investigation into him in April 2016. Just not enough to charge him.

Errors aside, though, Gerth here adopts a fairly remarkable stance. He complains that the WaPo story confirming the FISA targeting did not include all the problems with the FISA applications that wouldn’t be discovered until much later. I spoke with a Congressional Republican who was privy to the applications targeting Page in summer 2018, for example, and even at that point, the person believed there was abundant other evidence against Page, even without any information from Steele. Crazier still, in April 2017 when the WaPo published that scoop, the worst abuse of all identified in the Page applications – the alteration of an email – hadn’t happened yet.

The WaPo would have needed a time machine to meet Gerth’s strictures.

Gerth’s claims that the NYT and WaPo’s reporting was particularly problematic are, with a few exceptions, extraordinarily weak, and that’s before you consider all the Pulitzer articles he simply ignored. But he also ignores some of the more problematic NYT stories, like the NYT decision to bury Trump’s discussion of adoptions with Putin immediately before he wrote a misleading note claiming the June 9 meeting addressed adoptions. Similarly, Gerth had no problem that the NYT not only parroted Bill Barr’s misleading March 24, 2019 letter about the Mueller Report, but ran entire blocks of his letter on the front page. I asked CJR if they had any problem with this article, which misrepresented court filings in the Manafort case to suggest that his sharing of polling data with Konstantin Kilimnik happened in the spring, not during the general election, and involved only Ukrainian oligarchs, not Deripaska; to this day, the article feeds misunderstanding about that allegation. 

That was another question to which I got no answer.

Gerth has plenty of complaints about the NYT — just not about the stories where they erred on the side of downplaying the discoveries of the Russian investigation.

But as I’ll show in my next post, Gerth’s poor framing of his complaints about the NYT coverage doesn’t end there.

Links

CJR’s Error at Word 18

The Blind Spots of CJR’s “Russiagate” [sic] Narrative

Jeff Gerth’s Undisclosed Dissemination of Russian Intelligence Product

Jeff Gerth Declares No There, Where He Never Checked

“Wink:” Where Jeff Gerth’s “No There, There” in the Russian Investigation Went

My own disclosure statement

An attempted reconstruction of the articles Gerth includes in his inquiry

A list of the questions I sent to CJR

CJR’s Error at Word 18

It took just 18 words into a 23,000-word series complaining about journalistic mistakes in the coverage of the investigation into Trump’s ties with Russia before Jeff Gerth made his first error.

And I’m spotting him the use of “collusion” at word 12.

Columbia Journalism Review published the series, in four parts, last week.

Gerth claimed that, “The end of the long inquiry into whether Donald Trump was colluding with Russia came in July 2019,” when Mueller testified to Congress.

There are multiple ways you might measure the end of the inquiry — on March 22, 2019 when Mueller delivered his report to Bill Barr; on May 29, 2019 when Mueller closed up shop the moment his team secured Andrew Miller’s grand jury testimony; on November 15, 2019, when a jury convicted Roger Stone; or the still undisclosed date when an ongoing investigation into whether Stone conspired to hack with Russia ended (a September 2018 warrant to Twitter seeking evidence of conspiracy, hacking, and Foreign Agent crimes, which was originally sealed in its entirety to hide from Stone the full scope of the investigation into him, was still largely sealed in April 2020).

None of those events happened in July 2019.

Gerth appears not to know about the ongoing investigation into Stone. He doesn’t mention it. He barely mentions Stone at all, just 205 words out of 23,000, or less than 1% of the entire series.

Trump also commuted the sentence of Roger Stone, a Trump associate, who was convicted on false-statement and obstruction charges related to his efforts in 2016 to serve as an intermediary between the campaign and WikiLeaks. Mueller “failed to resolve” the question of whether Stone had “directly communicated” with Julian Assange, the site’s founder, before the election, according to the Times.

In 2020, the 966-page report by the Senate intelligence panel went a little further. It said that WikiLeaks “very likely knew it was assisting a Russian intelligence influence effort” when it acquired and made public in 2016 emails from the DNC. A few months after the report was released, new information surfaced showing why the special counsel, with greater investigative powers than the Senate panel, couldn’t bring a case. The newly unredacted documents were obtained by BuzzFeed, via a Freedom of Information Act request. The Mueller team, the documents show, determined that while Russian hacking efforts were underway at the time of the releases by WikiLeaks in July 2016, “the Office did not develop sufficient admissible evidence that WikiLeaks knew of—or even was willfully blind to—that fact.” The Senate report also suggests Stone had greater involvement with the dissemination of hacked material released by WikiLeaks.

And those 205 words include mention of the WikiLeaks disclosure that came out in the same FOIA release that disclosed the referral of a conspiracy investigation involving Stone, so unlike other journalists who don’t know about the once-ongoing investigation into Stone (which is virtually all of them), Gerth should know about the Stone detail. He explicitly cites the FOIA release that first confirmed it.

On the one hand, this is an obscure detail, one few besides me have reported. On the other hand, the fact that DOJ was continuing to investigate Roger Stone for conspiring with Russia at such time as Barr was loudly and inaccurately making claims about the Mueller investigation is not only a critical detail for someone assessing the press coverage of the investigation, but it also undermines the entire premise of Gerth’s series.

Gerth seems to think that the fact that Mueller didn’t charge conspiracy has some bearing on the merit of reporting on Trump’s ties to Russia. Mueller did prove, via three guilty pleas, a judge’s order, and a jury verdict, that Trump’s foreign policy advisor, his National Security Adviser, his personal lawyer, his campaign manager, and his rat-fucker were lying to hide their ties to the Russian operation, which Gerth only mentions serially over the course of the piece. But because Mueller developed evidence of, but did not charge, a conspiracy, Gerth treats the abundant inappropriate ties between Trump’s team and the Russian operation as a conspiracy theory invented by Hillary Clinton.

And for that reason, along with the suffocating number of other errors and misrepresentations, this series is more a symptom of what Gerth claims to combat, the degree to which coverage of the Russian investigation has been swamped by tribalist takes that only serve to increase polarization, rather than the cure he fancifully imagines he is offering. Indeed, I made the effort to wade through Gerth’s interminable series in significant part because it is such a delightful exemplar of everything “Russiagate,” that frenzy of screen-cap driven claims about a complex investigation chased by self-imagined contrarians who weren’t actually engaged in journalism. It replicates so many of the claims, and in some cases, the legal and factual errors that “Russiagate” propagandists have, that my list of questions for CJR might serve as a source document for others to understand what’s in the actual record.

CJR, when asked about the error at word 18, claimed it is not one. “On what basis did you say the inquiry into Trump and Russia ended in July 2019?” I asked.

CJR editor Kyle Pope responded with word games, then a claim that the piece had fairly represented Mueller’s testimony.

The story did not say that. It reads, “The end of the long inquiry into whether Donald Trump was colluding with Russia came in July 2019, when Robert Mueller III, the special counsel, took seven, sometimes painful, hours to essentially say no.”

It didn’t say the inquiry into “Trump and Russia ended,” it said the inquiry “into whether Donald Trump was colluding with Russia.” It also said Mueller “essentially” said “no” to that line of inquiry. That’s a fair characterization of his testimony.

Never mind that’s not a “fair characterization of his testimony.” Mueller did agree with Ken Buck that there was insufficient evidence to charge Trump with conspiracy.

BUCK: OK. You recommended declining prosecution of President Trump and anyone associated with his campaign because there was insufficient evidence to convict for a charge of conspiracy with Russian interference in the 2016 election. Is that fair?

MUELLER:That’s fair.

He also stated that not charging a conspiracy doesn’t mean the investigation didn’t find evidence of one (elsewhere, Gerth conflates not charging someone, like Carter Page, with not “turn[ing] up evidence for any possible charges”).

[Peter] WELCH: But making that decision does not mean your investigation failed to turn up evidence of conspiracy.

MUELLER: Absolutely correct.

But Mueller spent a great deal of time explaining that “collusion” is not a crime, that conspiracy and “collusion” weren’t even the same in a colloquial sense.

[Doug] COLLINS:In the colloquial context, known public context, collusion — collusion and conspiracy are essentially synonymous terms, correct?

MUELLER: No.

See? I was being generous for spotting Gerth with his error at word 12!

Mueller specifically stated Trump could be charged with obstruction after he left office.

BUCK: You believe that he committed — you could charge the president of the United States with obstruction of justice after he left office.

MUELLER:Yes.

BUCK:Ethically, under the ethical standards.

MUELLER: Well I am — I’m not certain because I haven’t looked at the ethical standards, but the OLC opinion says that the prosecutor while he cannot bring a charge against a sitting president, nonetheless continue the investigation to see if there are any other person to might be drawn into the conspiracy. [Note, other outlets transcribed this response differently, cleaning it up somewhat.]

Mueller likewise made clear that Christopher Steele was beyond his purview (unbeknownst to the public, Barr had already appointed John Durham to conduct the investigation that resulted in the embarrassing acquittal of Igor Danchenko forty months later).

MUELLER: Let me back up a second if I could and say as I’ve said earlier, with regard to Steele, that’s beyond my purview.

In one of his few deviations from short answers, Mueller affirmatively offered up that the counterintelligence investigation necessitated by Mike Flynn’s lies was continuing.

[Raja] KRISHNAMOORTHI: For example, you successfully charged former National Security Advisor Michael Flynn of lying to federal agents about this conversations with Russian officials, correct?

MUELLER: Correct.

KRISHNAMOORTHI: Since it was outside the purview of your investigation your report did not address how Flynn’s false statements could pose a national security risk because the Russians knew the falsity of those statements, right?

MUELLER: I cannot get in to that, mainly because there are many elements of the FBI that are looking at different aspects of that issue.

KRISHNAMOORTHI: Currently?

MUELLER: Currently.

Mueller also agreed that his report did not address whether Trump’s lies about the Trump Tower deal (something Gerth downplays in his own series) created a counterintelligence risk.

KRISHNAMOORTHI: Thank you. As you noted in Volume Two of your report, Donald Trump repeated five times in one press conference, Mr. Mueller in 2016 “I have nothing to do with Russia.”

Of course Michael Cohen said Donald Trump was not being truthful, because at this time Trump was attempting to build Trump Tower Moscow. Your report does not address whether Donald Trump was compromised in any way because of any potential false statements that he made about Trump Tower Moscow, correct?

MUELLER: I think that’s right — I think that’s right.

Not only was Gerth’s claim about “collusion” a totally inaccurate representation of Mueller’s testimony, but the date of the testimony did not mark, in any way, one of several known milestones of the legal investigation. Mueller’s testimony only marks the end if you’re treating a legal investigation, with those obvious legal milestones, as instead some kind of figure of speech. A narrative.

When I pointed all this out, Pope still stood by his word games about the claim.

I’ll let my earlier note stand.

This is more than just a quibble about word choice. Gerth and Pope have adopted a key rhetorical move of the “Russiagate” project they claim to be assessing.

In an editor’s note explaining CJR’s unapologetic adoption of the term,“Russiagate,” Kyle Pope described it as if it is a specific, well-recognized narrative.

No narrative did more to shape Trump’s relations with the press than Russiagate. The story, which included the Steele dossier and the Mueller report among other totemic moments, resulted in Pulitzer Prizes as well as embarrassing retractions and damaged careers. [my emphasis]

Somehow, a great number of “totemic moments,” such as the Seth Rich fiasco or the VIPs claims about the exfiltration of DNC documents, never get included in the “Russiagate” project. And that’s important, because by defining “Russiagate” as a narrative, Gerth and Pope walk into the project assuming not that reporting arose from actual facts, but instead was manufactured. In fact, Gerth even blames Hillary for unrelated reporting about things Donald Trump did. This is an attempt to prove Hillary wrong, not an attempt to assess the reporting on a serious criminal investigation.

Perhaps because of that, Gerth suggests – like many “Russiagate” proponents – that the press may only assert a role in political accountability with regards to Trump’s actions on Russia if the inquiry in question first meets a narrow legal measure, the charging of one crime, conspiracy. 

That totally upends the way accountability must work in a democracy, in which a lot of behavior must be subject to critique by the media but may not be a prosecutable crime. 

This series made me think seriously about a more generalized collapse, as the pace of politicized criminal investigations has accelerated since the days Gerth was hyping Whitewater, of those distinctions: an awareness on the part of the press which stories were about political accountability and which were legally accurate journalism covering a criminal investigation. The coverage of the three separate investigations of classified documents at Trump, Biden, and Mike Pence’s homes are being covered by journalists from different beats, which drives at least some of the uneven and at times inaccurate coverage.

But the linguistic games adopted by “Russiagate” advocates – and by Trump, as a defense plan – which treated “collusion” as “conspiracy” and dismissed everything Trump did that was not charged as conspiracy, disserved the public. Those word games conflate political accountability with legal accountability. Indeed, it flipped those things, suggesting that short of a crime, the public and the press had no business to demand political accountability for really scandalous behavior from Trump.  

These word games are a perfectly fine hobby for angry men posting screen caps on Twitter and they worked spectacularly well to distract from Trump’s own actions. But they deliberately serve to obfuscate, an approach that should have no place in journalism and media criticism. As we’ll see, that sloppiness carried over, on Gerth’s part, to virtually all aspects of his project.

That’s why I’ve spent far too long unpacking it: the failures of his project show the failures of “Russiagate” – the blind spots it adopts, the ethical lapses, and even the factual mistakes. In addition to a post on each of these topics, I’ve included three related documents as well:

Links

CJR’s Error at Word 18

The Blind Spots of CJR’s “Russiagate” [sic] Narrative

Jeff Gerth’s Undisclosed Dissemination of Russian Intelligence Product

Jeff Gerth Declares No There, Where He Never Checked

“Wink:” Where Jeff Gerth’s “No There, There” in the Russian Investigation Went

My own disclosure statement

An attempted reconstruction of the articles Gerth includes in his inquiry

A list of the questions I sent to CJR

A Close Rudy Giuliani Associate Alerted FBI’s Assistant Director to Charles McGonigal’s Alleged Albanian Graft

I know of two journalists who had reported on parts of the charges against former FBI Special Agent in Charge Charles McGonigal before he was indicted: In December 2021, Scott Stedman (with an assist from Wendy Siegelman) reported on the relationship between McGonigal, Oleg Deripaska, Sergey Shestakov, and Yevgenyi Fokin that was disclosed in a November 29, 2021 FARA filing.

And in September 2022, Mattathias Schwartz reported on a subpoena that (this was made more clear later) had been served ten months earlier, in November 2021. In the story, Schwartz claimed the documents he had in hand showed that McGonigal was under investigation for his Deripaska ties, which he only substantiated with a link to the FARA filing. The story itself pertained entirely to the Albanian side of the investigation, based off that subpoena, part of which he published.

Schwartz published that story a month after he won a lot of attention for getting Paul Manafort to confirm on the record the cover story someone had fed a NYT team including Maggie Haberman and Ken Vogel in February 2019: that Manafort had shared (just) campaign data with Konstantin Kilimnik. When first published in 2019, that cover story successfully distracted attention from outlines of a more substantive exchange pitched by Deripaska associate Kilimnik at an August 2, 2016 cigar bar meeting (and, indeed, from Deripaska’s involvement generally).

Manafort’s calendar showed that before he went to that meeting on August 2, 2016, he met with Trump and Rudy Giuliani. And while Manafort was serving his abbreviated prison term, Rudy reportedly consulted with him about his efforts to dig up dirt helpful to Trump.

In the wake of McGonigal’s indictments, Schwartz wrote a story about the person that he all but confirms was the one who received the subpoena: Allison Guerriero, who had a year-plus long affair with McGonigal that started sometime before October 2017 and lasted until late 2018, past the time McGonigal retired from the FBI in September 2018. According to the story, their relationship covered the most important period of the corruption described in the two indictments against McGonigal (meetings with Albania in the the DC indictment start in August 2017 and end in August 2018; favors for a Deripaska agent described in the SDNY indictment start in spring 2018; the favors continued through 2021, at which point the investigation into Deripaska had become overt).

In fact, Schwartz suggests that Guerriero may have tipped off FBI’s Assistant Director William Sweeney to McGonigal’s corruption in a drunken act of revenge after the affair ended.

In late 2018, McGonigal and Guerriero broke up. She remembers receiving an anonymous and hostile note in the mail. Soon after, McGonigal told her he was still married and had no plans to divorce his wife. “I was shocked,” she said. “I was very much in love with him, and I was so hurt.” She started drinking heavily to cope. A few months later, Guerriero, after a bout of drinking, dashed off an angry email to William Sweeney, who was in charge of the FBI’s New York City bureau, and who, she recalls, had first introduced her to McGonigal. She remembers telling Sweeney in the email that he should look into their extramarital affair, and also McGonigal’s dealings in Albania. McGonigal had already befriended Albania’s prime minister and traveled to the country extensively, dealings that would appear later in one of his indictments. Guerriero told Insider that she had deleted the email.

As Schwartz describes it, Guerriero told Sweeney he should look at not just McGonigal’s ties to Albania but also their affair, which is a nutty thing to say to an FBI official.

It’s a weird claim, because elsewhere, the story implies that Guerriero believed McGonigal’s stories about why he had bags of cash lying around, including a bag of cash that (Schwartz convincingly argues) is likely the one McGonigal is accused of receiving in a parked car on October 5, 2017.

That day in October wasn’t the only time that Guerriero remembers McGonigal carrying large amounts of cash. After he brushed her curiosity aside, she tempered her suspicions. She told herself it was probably “buy money” for a sting operation, or a payoff for one of McGonigal’s informants.

The story never describes that Guerriero learned of McGonigal’s ties to Albania, much less how or when she learned about them. And yet one takeaway from the story is that she might be the source of the entire investigation into her former boyfriend.

If she did send that email, it’s virtually certain an Assistant Director of the FBI would not delete it.

Schwartz describes Guerriero as,

a former substitute kindergarten teacher who volunteered for law-enforcement causes and was working as a contractor for a security company while living at home with her father.

The Facebook page for the charity for which she works shows the kind of NY law enforcement people she networks with.

Which partly explains the really remarkable detail about Guerriero. She’s close enough with Rudy Giuliani — who was himself being cultivated by Russian assets during the same period that McGonigal was — that the by-then discredited mayor put her up in his guest room after she suffered a burn injury in 2021.

Guerriero’s troubles worsened in early 2021, when she was badly burned during a fire at her father’s house. She asked friends for help through a GoFundMe. Former Mayor Rudy Giuliani of New York City, whom she knew from law-enforcement circles, let her stay in a guest bedroom. Since then, Guerriero has been a frequent on-air caller for Giuliani’s radio shows. She maintains that the 2020 election was marred by widespread voter fraud, a belief pushed by Giuliani that has been repeatedly debunked. “Whatever Giuliani says about the 2020 election is what I believe,” she said.

What a small world, that the woman who may have triggered the investigation into McGonigal was staying with Rudy as the investigation developed? Presumably, for example, some of Guerriero’s communications with Rudy would have been found on his phones after they were seized in April 2021 (though the investigation into McGonigal was already very advanced by the time the FBI actually started getting any communications from Rudy’s phones in November 2021, and emails with Guerriero would be out of scope of any known or suspected warrant targeting Rudy).

Schwartz doesn’t pursue the fact that McGonigal has such close ties to Rudy, though the connection would be even more interesting if McGonigal’s role in the Trump Russian investigation were as central as Schwartz presented it (he’s not alone in overstating McGonigal’s known role).

But there are two additional reasons the detail is particularly interesting.

First, as noted, Schwartz published part of the subpoena that, this second story clarifies, Guerriero received in November 2021.

Regardless, by November 2021, the FBI was looking into McGonigal. Two agents showed up at Guerriero’s door, she says, showed her a picture of McGonigal with the Albanian prime minister, and interviewed her about their interactions. She also received a grand-jury subpoena requesting all of her communications with McGonigal as well as information about any “payments or gifts” he may have given her.

It tracks the DC indictment closely (and was sent by the LA-based team investigating it). Four bullets ask for information about the Albanians that are the central focus of the indictment. Bullet f references McGonigal’s ties to Kosovo, which show up in ¶28 of the indictment. Bullet h and i ask for information on the Bosnians who appear in ¶¶45, 46 and 48 of the indictment; bullet j asks for information about the alleged access peddling to the UN described in ¶¶50-52 of the indictment.

But the subpoena — bullet g — asks about another country, Montenegro, where much of Deripaska and Manafort’s long history began and where Deripaska was still allegedly interfering as late as 2016. If Montenegro shows up in the indictment at all, it’s only as one of the other locations in Europe to which McGonigal was traveling with his Albanian contact (for example, a spring 2018 trip described in ¶44). That may simply reflect Montenegro’s relative import in McGonigal’s paid travel, the quality of evidence, or maybe DOJ didn’t want to include it for some other reason. But if Montenegro were a key part of McGonigal’s Balkans travels — on which, ¶22 of the indictment makes clear, he worked to persuade Albania not to sign oil contracts with Russian front companies — it would put him in a country where Deripaska likely still has a rich network of sources.

In any case, the only other thing that doesn’t map directly from the subpoena to the indictment are any payments or gifts McGonigal gave to Guerriero. The DC indictment never explained why, “no later than August 2017,” McGonigal allegedly asked his Albanian contact if he could provide him money, but Schwartz’ story reveals that the indicted former SAC was giving Guerriero gifts of cash and taking her to high-end restaurants during their affair, which started at least by October 2017 (her subpoena asked for records going back to April 2017). The indictment never mentions her, but the affair with her may explain part of McGonigal’s urgent need for cash in September 2017, something that would make McGonigal ripe to compromise by anyone who learned of it.

As I noted earlier, there’s one more remarkable player in this little network that includes Rudy Giuliani: Seth DuCharme, who spent much of the last year of the Trump Administration implementing Bill Barr’s bureaucratic efforts to ensure that Rudy Giuliani would not be prosecuted for his efforts to obtain benefit for Trump — including, but not limited to, dirt on Hunter Biden — from people that included several suspected Russian agents. DuCharme, who works at Rudy’s former firm, Bracewell, is part of the team representing McGonigal.

And to the extent that Guerriero is one of the witnesses from whom DOJ learned the specifics about how much cash McGonigal received in bags in parked cars (though, again, Schwartz’ story is inconsistent about whether she knew none of that or whether she knew enough to tip off William Sweeney) it would be part of DuCharme’s job to discredit Rudy’s former houseguest as a witness. He would do so, presumably, by pointing to all the things Guerriero told Schwartz she regrets, including harassment of McGonigal’s family that was serious enough to merit restraining orders in two states.

By her own account, Guerriero contacted one of McGonigal’s children despite being prohibited from doing so by a court order, an incident that led to her spending the night in a New Jersey jail. The court order stemmed from a 2019 police report, obtained by Insider, that McGonigal’s wife, Pamela, filed with the Montgomery County Police Department in Maryland. The report states that McGonigal and Guerriero “had a relationship” and that Guerriero had repeatedly harassed her with unwelcome emails and phone calls — including 20 calls in one day — despite her asking Guerriero to stop.

Guerriero confirmed that her contact with the McGonigal family led to a separate restraining order issued in New Jersey. “I am ashamed and embarrassed and sorry for my actions during the time that I was drinking,” she said.

In Schwartz’ story, Guerriero doesn’t say she regrets that email to Sweeney, which could well have sparked this entire investigation. She regrets the harassment of McGonigal’s family, which might come out if she were called as a witness.

All of which may provide insight into why the DC case against McGongial is charged as it is. Among the overt acts of which McGonigal is accused in DC are:

  • Networking with representatives of the government of Albania in late 2017 and early 2018 during the period when he used information from them to launch an investigation against the US citizen lobbyist for their rival.
  • Proposing that his prime Albanian contact be paid $500,000 (which may have been meant as repayment of money the Albanian gave McGonigal in 2017) to set up a high level UN meeting for some Bosnians.

Both of these overt acts could be charged under FARA and the Albanian tie, at least, could well have been charged under 18 USC 951. But McGonigal would likely offer the same kind of defense that Tom Barrack did in his EDNY trial: when McGonigal counseled the Albanian Prime Minister not to sign oil contracts with Russian on September 9, 2017, he could easily argue, he did so because he was genuinely opposed to Russian influence and not because he was seeking a benefit for his key Albanian contact.

Instead, DOJ charged him with inadequate disclosure to the FBI on forms FD-772b and OGE-278, with each inadequate disclosure charged as a false statement under either 18 USC 1001 or 1519 (though I don’t understand why McGonigal would not immediately challenge the three of the charges tied to filings submitted more than five years ago, especially if FBI had notice of all this in 2018). The 1001 charges would normally only get a few months sentence, though with a sentencing enhancement for abusing his official position, and by treating each inadequate disclosure as a separate crime, potential exposure could easily add up to years, or, with a plea deal, it could be pitched as “process crimes” meriting just months of prison time.

Charging it that way not only gives DC USAO more flexibility in plea discussions.

It would also make it a “paper case,” something that depends largely on documentation rather than the credibility of a witness like McGonigal’s primary Albanian contact (who seems to have told FBI that the cash payments were loans, not payments) or Guerriero. For each false form McGonigal submitted, DOJ will only have to show where he traveled, how his travel was paid, and that he didn’t properly disclose it. It would rely on travel records and bank statements and not the testimony of a witness who harassed McGonigal’s family out of jealousy.

I don’t want to make too much of Schwartz’ revelation that a key witness against McGonigal was staying in Rudy’s guest room as the investigation developed. Drunken jealousy is all the motive you need to explain her actions (though not, perhaps, inconsistencies about how much of the Albanian graft she knew about).

But once you throw Rudy and Montenegro into the mix, the trajectory on which McGonigal traveled, from arguing against Russian oil contracts in September 2017 to thinking he could manage ties to Deripaska in spring of 2018, gets a lot more interesting.

About Your Pence Special Counsel Complaint: On the Missing Coverage of Section 600.2(b)

I’m seeing people ask why Merrick Garland hasn’t appointed a Special Counsel yet to investigate Mike Pence when (the claim is) he did for President Biden.

The answer is … that’s not what happened.

DOJ learned about the documents at Pence’s house no earlier than January 18 (probably on January 19), so seven or eight business days ago.

At this stage of the Biden review (seven days after DOJ learned about the documents from the Archives), Garland hadn’t appointed US Attorney for Chicago John Lausch yet. As Attorney General Garland explained when he announced the appointment of Robert Hur, ten days after DOJ learned about the documents at Biden’s office, he asked Lausch to investigate:

  • November 4: DOJ learns of the Biden documents
  • November 9: FBI starts an assessment
  • November 14: Garland appoints John Lausch

More importantly, Lausch wasn’t appointed as a full Special Counsel under 28 CFR 600.4, which is what Jack Smith was appointed under. Rather, Garland appointed Lausch under 600.2(b).

On November 14, pursuant to Section 600.2(b) of the Special Counsel regulations, I assigned U.S. Attorney Lausch to conduct an initial investigation to inform my decision whether to appoint a Special Counsel.

Section 600.2(b) permits the Attorney General to appoint someone to conduct an “initial investigation” to better inform the decision whether to appoint a full-blown Special Counsel.

Importantly, Garland didn’t reveal that he had appointed Lausch until the day he appointed Hur, this time under 600.4.

So Garland could well have appointed someone — could be Lausch, could be Hur, could be someone who wasn’t appointed under the Trump-Pence Administration, as both Lausch and Hur were — to conduct an initial assessment regarding Pence’s documents without telling the public, just as he did with Biden. If he followed the same approach he did with Biden, he might not reveal that step unless and until he appointed a full Special Counsel.

Check back on March 17 to see where DOJ is with a Pence review, which would be the same almost two months out as it took to appoint a Special Counsel with Biden.

Maybe by then someone will have been appointed to review the classified holdings of all former Presidents and Vice Presidents.

To anticipate one more complaint, about why Garland waited nine months after the discovery of classified documents in boxes that had been at Mar-a-Lago before appointing Jack Smith: DOJ started using a grand jury no later than May 11 in Trump’s case, which is when they sent a subpoena for all documents with classification markings (I believe the subpoena reflects a grand jury seated on April 27). The subpoena came just over two months after FBI received the NARA referral on February 9. The timing of the Special Counsel appointment pivoted on the fact that Trump announced his his run for President, not the intensity of the investigation.

In fact, Garland might not appoint a Special Counsel if Pence doesn’t formally announce (if even there’s cause to do so).

It’s not at all clear that these investigations should follow a parallel track. But even if they should, Pence has not yet been treated differently than Biden.

“Why Did Mike Pence Wait So Long to Reveal His Stash of Classified Documents?”

At a press availability yesterday, Merrick Garland repeated a line he often uses, that DOJ applies the law the same for everyone.

“We do not have different rules for Democrats or Republicans, different rules for the powerful or the powerless, different rules for the rich and for the poor, we apply the facts, and the law in each case in a neutral, non-partisan manner,” Garland told reporters during a press availability at Justice Department headquarters. “That is what we always do.”

Many of the reporters covering it treated it as a comment about DOJ’s handling of the Trump and Biden classified document inquiries. Maybe it was.

Little did anyone know, though, that Garland might well have had the FBI’s collection of about a dozen documents with classified markings from Mike Pence’s home in mind.

Greg Jacob first told the Archives about the documents on January 18, six days ago and two days after the search. The next day, the FBI arrived in Indiana to collect the documents, which Jacob complained was against standard protocol. Yesterday Pence’s staff delivered several boxes to the Archives to check for adherence to the Presidential Records Act.

I don’t much care that Pence didn’t immediately run to the press to announce the documents, but it is the kind of thing that journalists who are good at horse race coverage, unaware of many of the thus-far distinguishing details about the Trump documents, and ill-equipped to cover classified documents stories latched onto with Biden.

So in an effort to provide some structure for the kids-chasing-a-soccer-ball-like coverage we’re already seeing, here’s a table that summarizes what we know and don’t know about all three cases.

Until we have answers about some of the details that currently distinguish Biden and Pence from Trump — like whether they knew of the documents (both claim they did not), whether they ever accessed the documents after leaving office, whether we have reason to believe they’re harboring more — this should not be a story.

And the key difference, one that should be included in every story that tries to make such a comparison, is that Trump refused to give documents back, whereas Biden and Pence freely offered them up.

The reason that’s important, aside from the both sides drama of it, is that it is an element of the offense that would be most likely to be used if DOJ took the unprecedented step of charging a former Original Classification Authority with harboring classified documents.

As we can now see, it happens that men who have aides pack them up at the end of their tenure go home with documents they didn’t know they had. It happens. (By the time Kamala Harris leaves, there’s likely to be a new protocol in place, so Harris can set a perfect record as the first woman being packed up.) What matters — what distinguishes a mistake from a potential crime — is what you do with the documents when you become aware you have them.

It’s possible we’ll learn details that suggest Biden knowingly stashed classified documents. But thus far, we don’t have any such details. And that should — but thus far has often not — show up in any competent coverage.

No, Charles McGonigal Likely Isn’t Responsible for that Part of the Russian Investigation You Hate

Everyone — whether from a left, right, or frothy perspective — has seized on the arrest of former FBI Special Agent in Charge Charles McGonigal to assume he was responsible for something they don’t like about the Russian investigation: the leaks (attributed to but not exclusively from SDNY) about the Clinton Foundation investigation; the problems on the Carter Page applications and vetting of the Steele dossier; the tanking of the Alfa Bank allegations; some later sabotage of the Mueller investigation.

There’s no reason to believe he was primarily responsible for most of that, and good reason to believe he was not. But he was in a place where he could have tampered in other really serious cases. So I want to lay out what his timeline is, with some comment on how it intersects with key investigations.

Here’s an excerpt from the bio sent out with the October 4, 2016 announcement of his promotion to SAC in NY Field Office.

FBI Director James B. Comey has named Charles McGonigal as the special agent in charge of the Counterintelligence Division for the New York Field Office. Mr. McGonigal most recently served as the section chief of the Cyber-Counterintelligence Coordination Section at FBI Headquarters.

[snip]

In 2014, Mr. McGonigal was promoted to assistant special agent in charge of the Baltimore Field Office’s cyber, counterintelligence, counterespionage, and counterproliferation programs.

[snip]

McGonigal will assume this new role at the end of October.

This 2016 promotion would have put him in New York too late to be a key 2016 leaker; the damage to Hillary had already been done by the time he would have arrived in New York.

He should have had a role in the Alfa Bank investigation, which included both a cyber and a counterintelligence component, though the latter was in Chicago. But his name did not show up (in unredacted form, anyway) in the Michael Sussmann files. Plus, we know what bolloxed that investigation: two cyber agents, Nate Batty and Scott Hellman, who decided the anomaly was nothing even before they had looked at all the data, then kept telling the counterintelligence investigators that too.

McGonigal was in the loop on the Crossfire Hurricane investigation. He had a hand in forwarding the tip from the Australians to DC headquarters. And he was in the vicinity of the Carter Page investigation after it got moved back to New York in January 2017 (in which context he shows up in communications with Jennifer Boone). But at least per the Horowitz Report, he wasn’t a key player.

Because McGonigal was tangential to the above matters — including the successful effort, aided by Sussmann and Rodney Joffe — to kill the early NYT story on the Alfa Bank allegations, he’s probably not the most important player in the October 2016 NYT story every Democrat hates (though his expertise could have made him a source for several of the journalists involved).

He likely was involved in coordination in the early parts of the investigation into the DNC hack (which was investigated in Pittsburgh and San Francisco), including a decision not to open an investigation on Roger Stone, and there were steps not taken in those early days that probably should have been. Perhaps McGonigal is to blame for the fact that, when Jeannie Rhee asked for a briefing on the investigation into the hack-and-leak in 2017, nothing had been done. Ultimately, it did get done though. He was no longer in a position to interfere with the investigation during the key part of it in 2018 (though he likely knew important details about it).

One thing that’s absolutely certain, though: He was in a position to sabotage investigations into Oleg Deripaska, and with him, Paul Manafort. And he would have greatly facilitated Deripaska’s campaign to undermine the Russian investigation with disinformation, which continued beyond 2018. Just as one measure of timing, Deripaska’s column in the Daily Caller was at the beginning of the time when Shestkov was reaching out to McGonigal.

The materials on the SDNY indictment pertaining to Deripaska make it clear that he had accessed sanctions packages pertaining to Deripaska before he left the FBI in 2018.

As SAC, McGonigal supervised and participated in investigations of Russian oligarchs, including Deripaska. Among other things, in 2018, McGONIGAL, while acting as SAC, received and reviewed a then-classified list of Russian oligarchs with close ties to the Kremlin who would be considered for sanctions to be imposed as a result of Russia’s 2014 conflict with Ukraine.

He appears to have leaked that information with the daughter of Agent 1 (believed to be Yevgenyi Fokin).

An NYPD Sergeant assigned to brief Agent-1’s daughter subsequently reported the event to the NYPD and FBI, because, among other reasons, Agent-1’s daughter claimed to have an unusually close relationship to “an FBI agent” who had given her access to confidential FBI files, and it was unusual for a college student to receive such special treatment from the NYPD and FBI.

It seems likely, then, Manafort got visibility onto what the FBI knew about him. And he got it around the same time Konstantin Kilimnik was included in a conspiracy indictment with Paul Manafort in June 2018. He almost certainly got it before the Mueller investigation was over, which hypothetically could have influenced or facilitated Manafort’s effort to thwart DOJ’s investigation.

I have reason to suspect that people associated with McGonigal, if not he himself, have seeded disinformation about Deripaska-related investigations.

McGonigal’s tie to Deripaska and the trajectory of his career would have put him in a position to tamper in other investigations. As noted above, he moved from Baltimore (overseeing matters involving the NSA during years when the materials that would be leaked as part of the Shadow Brokers operation were stolen), to a cyber/CI role in DC, to NYC. The overt acts described in his two indictments (SDNY, DC) only start in 2017, which would suggest he may not have sold out until then.

Except there’s a problem with that: The first overt act in the DC indictment is him asking for money. So it’s not clear when he got started.

August 2017: McGonigal first asks Albanian for money.

September 7, 2017: McGonigal travels to Albania.

October 5, 2017: McGonigal receives $80,000 in a parked car from the Albanian.

November 18, 2017: McGonigal conducts an interview in Vienna with the Albanian acting as translator; the FBI has no record of the interview. Then McGonigal flies to Albania and discusses business with the same witness.

November 25, 2017: McGonigal predicates an investigation into the lobbyist for a rival Albanian politician.

February 28, 2018: McGonigal formally opens investigation into rival Albanian relying on witnesses whose expenses were paid by his source.

March 4, 2018: McGonigal dines with Prime Minister of Albania.

April 27, 2018: McGonigal pitched by two people in Germany to get involved in Bosnian affairs, facilitates an introduction to US Ambassador to UN.

June to August 2018: McGonigal sets up arrangement whereby Bosnian-tied pharma company would pay Albanian $500K to broker UN ties.

Spring-Summer 2018: At Sergey Shestakov’s request, McGonigal sets up Deripaska’s agent’s daughter with an NYPD internship.

September 2018: McGonigal retires from the FBI.

There are a number of key investigations, including some in which Deripaska had tangential interest, on which McGonigal would have had complete visibility. Their compromise would present a grave threat to the country.

They’re not the ones left, right, and frothers are most concerned about though.

Given how DOJ has charged these two indictments (and given the charges they have yet to file), I suspect they will try to get McGonigal to plead to one side and cooperate in the other — in part to unpack everything he did before and after he left the FBI. But even if they do, they’re not going to tell us what he was up to.

Former FBI SAC Charles McGonigal Indicted for Crimes Spanning from 2017 to 2021

When I said on Saturday that, “I wouldn’t be surprised if there were a few stray indictments [relating to Oleg Deripaska] we haven’t seen yet,” I wasn’t specifically thinking of former Special Agent in Charge of FBI’s New York Counterintelligence Office, Charles McGonigal, who was arrested that same day in SDNY for conspiring to hide that he was working for Deripaska.

Though I had noted Scott Stedman’s report, which itself piggybacked on a Wendy Siegelman catch of a FARA filing from McGonigal’s alleged co-conspirator, Sergey Shestakov, which laid out the relationship.

In fact, DOJ seems to be treating this case — and a DC indictment given less prominence in DOJ’s releases today — as a public integrity prosecution first, and only after that the kind of national security case that the other Deripaska cases have been. That is, this is about how Deripaska and his associates used McGonigal’s alleged corruption to harm national security, and not the way McGonigal made a corrupt decision to work with Deripaska.

DC US Attorney Matthew Graves even suggested that’s the trajectory by which McGonigal came to be working for one of the Russians he should have been hunting. “Covering up your contacts with foreign nationals and hiding your personal financial relationships is a gateway to corruption.”

The DC charges pertain to $225,000 in payments McGonigal took from a former Albanian security official while he was still at the FBI. After taking the payments, McGonigal initiated an investigation into someone lobbying for competing Albanian interests.

According to the nine-count indictment, unsealed today, from August 2017, and continuing through and beyond his retirement from the FBI in September 2018, McGonigal concealed from the FBI the nature of his relationship with a former foreign security officer and businessperson who had ongoing business interests in foreign countries and before foreign governments.  Specifically, McGonigal requested and received at least $225,000 in cash from the individual and traveled abroad with the individual and met with foreign nationals.  The individual later served as an FBI source in a criminal investigation involving foreign political lobbying over which McGonigal had official supervisory responsibility.  McGonigal is accused of engaging in other conduct in his official capacity as an FBI Special Agent in Charge that he believed would benefit the businessperson financially.

Effectively, a top CI official was on the take from someone who then used that influence to take out a rival.

The charges in DC include a bunch of false statements and obstruction counts (though the obstruction could amount to twenty years in prison).

The NY charges accuse McGonigal and Shestakov of working with someone else in an attempt to get Oleg Deripaska’s sanctions lifted.

Even before McGonigal left the FBI, he was doing favors for someone listed as Deripaska’s agent (I’ll come back to him, but I believe his identity, too, is public). Then starting in 2018, McGonigal and Shestakov started working with a law firm, which earlier reporting identified as Kobre & Kim, in an attempt to help Deripaska get his sanctions lifted. Then after K&K stopped pursuing that effort in 2020, McGonigal and Shestakov continued to work for Deripaska, laundering the funds through a Friend (who may be the Albanian, in which case that may be where they discovered the tie to him).

Because of the money laundering in the SDNY indictment, it may in practice include a stiffer sentence than the DC one.

As I said above, on paper (based, in part, on the prosecutors assigned) this is being treated as a public integrity problem that led to a huge counterintelligence one. There’s not even any mention of the KleptoCapture initiative started in response to the Russian war.

But like the Deripaska investigations, I expect this one will continue for a while.

Update: I want to talk a bit about what I mean that these are Public Integrity indictments with a CI twist.

The DC prosecution team consists of two DC USAO attorneys, with the assistance of a senior NSD executive.

The case is being prosecuted by Assistant United States Attorneys Elizabeth Aloi and Michael Friedman of the U.S. Attorney’s Office for the District of Columbia, with assistance from Acting Deputy Chief Evan Turgeon of the DOJ’s National Security Division Counterintelligence and Export Control Section, and the Criminal Division’s Office of International Affairs.

In addition to a bunch of January 6 cases in the last two years, Aloi is on the Navarro team and the case against two guys who pretended to be DHS agents to get close to some FBI agents. Most if not all of her January 6 cases included cooperation agreements. Michael Friedman’s January 6 cases included two involving threats, and two involving movement right wingers, including Zeeker Bozell, the scion of the family.

The DC team seems like one you’d use to try to get McGonigal to cooperate to unwind whatever other fuckery he did at the FBI.

The SDNY prosecution team consists of three public integrity prosecutors and an NSD one.

The case is being prosecuted by the Office’s Public Corruption Unit.  Assistant U.S. Attorneys Hagan Scotten, Rebecca T. Dell, and Derek Wikstrom are in charge of the prosecution with assistance from Trial Attorney Scott A. Claffee of the National Security Division’s Counterintelligence and Export Control Section.

All the SDNY prosecutors have been involved with very large multi-defendant conspiracies. Hagan Scotten was involved in the Rudy Giuliani and Parnas Fruman investigation. Derek Wikstrom was on the Build the Wall (Steve Bannon) team.

Scott Claffee has been involved in some of the highest profile Chinese counterintelligence prosecutions. But he’s also involved in at least one of the other Deripaska-related cases, the one involving dual use sourcing.

But by far the most interesting lawyer involved in this case is McGonigal’s defense attorney: Seth DuCharme, a top Billy Barr aide who was at the center of numerous Barr efforts to protect Trump associates.

Including Rudy.

Especially Rudy.

Finally, a word about timing.

The SDNY indictment came first. That indictment is dated January 12.

That press release hails the Border Patrol, and given that the arrest happened at JFK, that may be why SDNY went first.

DC got its indictment on January 18. That same day there was a sealed document placed in the SDNY docket, perhaps related to the other case

Update: Here’s his bio from when he was promoted to the NY position.

Charles McGonigal Named Special Agent in Charge of the Counterintelligence Division for the New York Field Office

FBI Director James B. Comey has named Charles McGonigal as the special agent in charge of the Counterintelligence Division for the New York Field Office. Mr. McGonigal most recently served as the section chief of the Cyber-Counterintelligence Coordination Section at FBI Headquarters.

Mr. McGonigal entered on duty with the FBI in 1996. He was first assigned to the New York Field Office, where he worked Russian foreign counterintelligence and organized crime matters. During his tenure in New York, Mr. McGonigal worked on the TWA Flight 800 investigation, was assigned to the task force investigating Wen Ho Lee, investigated the 1998 terrorist bombings of the U.S. Embassies in Tanzania and Kenya, and investigated the September 11, 2001 terror attacks.

Following the terrorist attacks on September 11, 2001, Mr. McGonigal was assigned to an investigative response squad, which focused on pending international terrorist threats in the New York City area.

Mr. McGonigal was assigned to the Cleveland Division where he investigated white-collar and violent crime matters. In 2002, Mr. McGonigal was promoted to a supervisory special agent in the Counter-Espionage Section at FBI Headquarters, where he handled several high-profile espionage investigations. In April 2004, Mr. McGonigal was promoted to chief of the Asia-Near East Counterintelligence Unit.

In 2006, Mr. McGonigal was promoted to field supervisor of a counter-espionage squad at the Washington Field Office. In this capacity, Mr. McGonigal was in charge of many high-profile espionage, economic espionage and media leak investigations resulting in criminal prosecution. In 2014, Mr. McGonigal was promoted to assistant special agent in charge of the Baltimore Field Office’s cyber, counterintelligence, counterespionage, and counterproliferation programs. Mr. McGonigal earned a Bachelor of Business Administration degree in 1990 and completed a master’s degree from Johns Hopkins University.

Mr. McGonigal will assume this new role at the end of October.

For those trying to assess whether he was a part of the Russian investigation, he largely missed it. I think he would have been in the loop after he moved to NY, but he didn’t show up in the Sussmann trial.

“Several Work and Storage Areas:” Why DOJ Likely Doesn’t Trust Biden’s Personal Attorneys

Charlie Savage has a story that — while he doesn’t say it — likely explains why DOJ doesn’t entirely trust Biden’s attorneys on the classified documents and so appointed a Special Counsel.

The currently operative story, as told by Savage, is the following:

  • Biden’s lawyers found the Penn Biden documents and interviewed the people who packed the documents
  • Based on those interviews, they told DOJ other documents would only be at Penn Biden
  • Without telling DOJ (though after they learned that DOJ had started to investigate), “and not because of any new information,” they decided to check that premise by looking at the boxes in Biden’s garage
  • On December 20, they told DOJ about the documents marked classified in the garage
  • They then decided to search other office areas, this time telling DOJ they were doing so
  • When, on January 11, they found a page with classification marks inside one of those office areas, they stopped their searches; FBI would find 5 more pages when they came to secure that single page

But look at this timeline with other dates added:

  • Biden’s lawyers found the Penn Biden documents and interviewed the people who packed the documents
  • November 4: NARA told DOJ about the classified documents
  • November 9: FBI started its assessment
  • November 14: Garland appointed John Lausch
  • Based on Biden’s lawyers’ interviews of those who packed Biden’s boxes, they told DOJ other documents would only be at Penn Biden
  • Lausch interviewed some of the people who packed the boxes
  • Without telling DOJ, “and not because of any new information,” Biden’s lawyers decided to check that premise by looking at the boxes in the garage
  • On December 20, they told DOJ about the documents marked classified in the garage
  • On January 5, Lausch recommended Garland appoint a Special Counsel
  • At some point not IDed in Savage’s story, Biden’s lawyers decided to search other office areas, this time telling DOJ they were doing so
  • On January 11, they told DOJ about another classified page, possibly inside an office, then stopped their searches
  • On January 21, FBI did a thorough search of Biden’s Wilmington home and found 6 additional documents

Biden’s lawyers probably didn’t decide to do further searches until after Lausch started interviewing people. Already, if I were DOJ, I would want to know whether Biden consulted with the people being interviewed, and based on that, realized they needed to do further searches.

But we still don’t know two other things. Savage describes the second space in Biden’s home, which heretofore had been described as the room adjacent to the garage, as “several work and storage areas inside the living area of the house.” Which is to say, we still don’t know whether the January 11 document was found inside a storage space or an office, where documents would be used rather than just stored. Or rather, John Lausch knows that, Savage’s sources know that, but we don’t.

We also don’t know if Biden found out that Garland was going to appoint a full Special Counsel and only then decided to search the interior of the home.

Something led Biden’s lawyers to take more seriously the possibility that documents weren’t just stored at Biden’s home, but used there. And while this all still could be lawyers stepping on their own toes as they try to be helpful, even just based on what we know, from DOJ’s perspective, that toe-stepping would be indistinguishable from Biden’s lawyers responding to learning things they should have been told from the start, which is different from — but not that different from — Trump moving boxes to prevent Evan Corcoran from finding classified documents.

One more detail that is actually fairly damning. Savage describes that the documents at Penn Biden were copies; the originals are stored at the Archives.

One set was believed to be material that might be useful to Mr. Biden for his post-vice-presidential career in public life or teaching, like his speeches and unclassified policy memos about topics he was interested in. Those materials were initially shipped to two transition offices and then on to his office at the Penn Biden Center when it opened in 2018. (The National Archives and Records Administration would keep original copies of the official records.)

If Biden’s office sent originals of the classified documents found at Penn Biden to NARA, it makes their inclusion in documents sent to the policy office far less attributable to a mistake.

Biden’s lawyers have been feeding the press a story about how cooperative they’ve been. But so did Trump’s lawyers. Trump’s story was far more obviously bullshit — in part for the way they spun a claim that by adding a lock to Trump’s storage room, they had made it secure.

Though this line about the Biden search — offered up as proof of extreme cooperation — gets close to lock-on-door levels of spinning.

[T]he Biden legal team invited the F.B.I. to also search every room in the residence — including bathrooms, bedrooms and the utility room, the people said.

There are still key parts of Biden’s story that aren’t being explained, most importantly whether the documents discovered this month inside Biden’s house were discovered in storage or in an actively-used office. If DOJ knows that the difference between the two would be critical information for the public to know, then this story would only further degrade confidence in Biden’s lawyer on the part of DOJ.

This is not about the reliability of lawyers like Bauer. Rather, it’s about whether Biden’s lawyers got information at the start they needed. But if they did not, it means that DOJ can’t just trust, but must verify, everything Biden’s lawyers tell them.

Why Trump’s Lawyer, Evan Corcoran, Says Joe Biden Couldn’t Violate 18 USC 1924

My Twitter feed continues to be inundated by a bunch of experts on the latest talking point telling me why Joe Biden violated the law.

He may have. We don’t know the circumstances surrounding the documents found at his home. Based on what we know, it’s far less likely that Biden broke the law than Trump. But we don’t know.

Virtually all those parroting the latest talking point are misunderstanding the likely law in question — 18 USC 793e, the same law in question with Trump — and how classification works with a former President or Vice President.

Maybe I’ll get into that at more length in days ahead, but for now, I wanted to lay out what Trump, in the voice of his lawyer Evan Corcoran, says about whether Biden could be charged.

Corcoran addressed many of the questions my Twitter experts have shared in a letter sent to Jay Bratt, DOJ’s head of counterintelligence, last May.

First, Trump — in the voice of Corcoran — says if a former President (a Vice President is also a Constitutional Officer) has voluntarily returned documents to the Archives, there should be no leaks about it.

There have been public reports about an investigation by DOJ into Presidential Records purportedly marked as classified among materials that were once in the White House and unknowingly included among the boxes brought to Mar-a-Lago by the movers. It is important to emphasize that when a request was made for the documents by the National Archives and Records Administration (NARA), President Trump readily and voluntarily agreed to their transfer to NARA. The communications regarding the transfer of boxes to NARA were friendly, open, and straightforward. President Trump voluntarily ordered that the boxes be provided to NARA. No legal objection was asserted about the transfer. No concerns were raised about the contents of the boxes. It was a voluntary and open process. Unfortunately, the good faith demonstrated by President Trump was not matched once the boxes arrived at NARA. Leaks followed. And, once DOJ got involved, the leaks continued. Leaks about any investigation are concerning. Leaks about an investigation that involve the residence of a former President who is still active on the national political scene are particularly troubling.

So Trump, in the voice of Corcoran, should be outraged that CBS broke this story before the White House or Attorney General revealed it.

Corcoran says that those vested with constitutionally-based authority to classify and declassify documents have unfettered authority to declassify documents, an argument that Trump still pretends he hasn’t waived both before at least three courts, SDFL, the 11th Circuit, and SCOTUS.

(1) A President Has Absolute Authority To Declassify Documents.

Under the U.S. Constitution, the President is vested with the highest level of authority when it comes to the classification and declassification of documents. See U.S. Const., Art. II, § 2 (“The President [is] Commander in Chief of the Army and Navy of the United States[.]”). His constitutionally-based authority regarding the classification and declassification of documents is unfettered. See Navy v. Egan, 484 U.S. 518, 527 (1988) (“[The President’s] authority to classify and control access to information bearing on national security … flows primarily from this constitutional investment of power in the President and exists quite apart from any explicit congressional grant.”).

Now, in reality, the authority of the President is not entirely unfettered. As we discussed last fall, nuclear documents require additional people to declassify.

But here’s the thing: There’s good reason to believe that the Vice President has the same authority to declassify documents that the President does.

To the extent that classification is constitutionally tied to Article II authority, it is governed by Executive Order. The Executive Order that governed classification for the entirety of the Trump Administration, and still governs classification, treats the Vice President on par with the President. The EO that governs classified information gives the Vice President the same original classification authority it gives the President, which is where the authority to declassify comes from.

(a) The authority to classify information originally may be exercised only by:

(1) the President and the Vice President;

The language on post-tenure access (which Trump later invoked in arguments before the 11th Circuit) also applies to the Vice President in the same way as the President.

(a) The requirement in section 4.1(a)(3) of this order that access to classified information may be granted only to individuals who have a need-to-know the information may be waived for persons who:

[snip]

(3) served as President or Vice President.

(b) Waivers under this section may be granted only if the agency head or senior agency official of the originating agency:

(1) determines in writing that access is consistent with the interest of the national security;
(2) takes appropriate steps to protect classified information from unauthorized disclosure or compromise, and ensures that the information is safeguarded in a manner consistent with this order; and
(3) limits the access granted to former Presidential appointees or designees and Vice Presidential appointees or designees to items that the person originated, reviewed, signed, or received while serving as a Presidential or Vice Presidential appointee or designee.

Biden could access stuff from when he was Vice President, but he’d have to do so at the Archives and get a waiver first (a waiver that Biden had after his term but Trump, because of a decision by Biden, did not).

Now, to be clear, none of this has been tested. Much of this language is a legacy of changes in a prior EO that Dick Cheney oversaw in March 2003, which were key in the Valerie Plame investigation.

Some of that is covered in this post I did in 2017, in which I asserted that Mike Pence had declassification authority.

But the fact of the matter is that Joe Biden could say, if he were ever charged, that his understanding is that his authority to classify and declassify as Vice President was the same as the President’s, and over the entire four years of the Trump Administration, Trump did nothing with his unfettered authority to change that (nor has Biden since).

In reality, Trump didn’t declassify these documents, nor did Biden. Trump has now waived his opportunity to claim he declassified these documents legally repeatedly. (Biden could have legally declassified them when he found them; instead he returned them to the Archives.)

But there’s good reason to believe that Corcoran’s arguments about Trump — for the little they’re worth — would apply equally to Biden as to Trump, thanks, in part, to Dick Cheney.

How about them apples, huh?

By far the most interesting argument Corcoran makes, though, is that the statute that most Twitter experts think is at issue, 18 USC 1924, cannot apply to the President, because the President — like the Vice President — is not an “officer” appointed by the President.

(2) Presidential Actions Involving Classified Documents Are Not Subject To Criminal Sanction.

Any attempt to impose criminal liability on a President or former President that involves his actions with respect to documents marked classified would implicate grave constitutional separation-of-powers issues. Beyond that, the primary criminal statute that governs the unauthorized removal and retention of classified documents or material does not apply to the President. That statute provides, in pertinent part, as follows:

Whoever, being an officer, employee, contractor, or consultant of the United States, and, by virtue of his office, employment, position, or contract, becomes possessed of documents or materials containing classified information of the United States, knowingly removes such documents or materials without authority and with the intent to retain such documents or materials at an unauthorized location shall be fined under this title or imprisoned for not more than five years, or both. 18 U.S.C. § 1924(a).

An element of this offense, which the government must prove beyond a reasonable doubt, is that the accused is “an officer, employee, contractor, or consultant of the United States.” The President is none of these. See Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 497-98 (2010) (citing U.S. Const., Art. II,§ 2, cl. 2) (“The people do not vote for the ‘Officers of the United States.”‘); see also Melcher v. Fed. Open Mkt. Comm., 644 F. Supp. 510, 518-19 (D.D.C. 1986), aff’d, 836 F.2d 561 (D.C. Cir. 1987) (“[a]n officer of the United States can only be appointed by the President, by and with the advice and consent of the Senate, or by a court of law, or the head of a department. A person who does not derive his position from one of these sources is not an officer of the United States in the sense of the Constitution.”). Thus, the statute does not apply to acts by a President. [my emphasis]

Corcoran made what could be a grave error with this legal analysis, which I’ll get to, but it’s not necessarily in his read about Constitutional officers.

In fact, DOJ seems to agree with Corcoran that Trump’s actions — taking classified documents home at the end of his term and keeping them — are not covered by this law. It was not among the crimes for which they had demonstrated probable cause on Trump’s search warrant affidavit.

It may be DOJ believes that because they agree with Corcoran, that Constitutional Officers who are elected directly by voters are not subject to this law.

It may also be that they believe that because it is routine for Presidents and Vice Presidents, when leaving office, to remove their papers from their official residences and offices and then sort through the stuff they have to send to the Archives. A CNN report describes that Biden, like Trump, didn’t wrap up his office until the last minute (though for different reasons — Trump didn’t because he was still trying to cling to power, whereas Biden didn’t because he was still working). The result was the same, though: the process was rushed and disorderly.

That is, it is possible that the removal of documents at the end of an Administration is not, per se, considered criminal because of how White Houses transition.

Whatever it is, there is nothing about the known fact set about Biden that would make this law apply to Biden if it did not with Trump. Both are believed to have retained stuff they took with them when they left their offices in a hurry.

If 18 USC 1924 cannot apply to Trump, like Evan Corcoran said, then it cannot apply to Biden.

I said, above, that Corcoran may have made a grave error in his analysis. That’s because he didn’t consider whether 18 USC 793, the law we know is under investigation, could apply to a former President (or Vice President). And that appears to have led him to give Trump really bad advice, allowing him to refuse to give back classified documents when asked.

That is a crime.

Taking classified documents unknowingly is probably not a crime, especially for a President or Vice President. Refusing to give them back may well be. That’s the question before Jack Smith, as well as the obstruction question. That’s probably the question before Robert Hur.

How about them apples, huh?

There’s one more interesting thing Corcoran said in his letter. He demanded that DOJ adhere to the White House contact policies that were routinely violated under the Trump Administration.

(3) DOJ Must Be Insulated From Political Influence. According to the Inspector General of DOJ, one of the top challenges facing the Department is the public perception that DOJ is influenced by politics. The report found that “[o]ne important strategy that can build public trust in the Department is to ensure adherence to policies and procedures designed to protect DOJ from accusations of political influence or partial application of the law.” See https://oig.justice.gov/reports/top-management-and-performance-challengesfacing-depatiment-justice-2021 (last visited May 25, 2022). We request that DOJ adhere to longstanding policies and procedures regarding communications between DOJ and the White House regarding pending investigative matters which are designed to prevent political influence in DOJ decision-making.

He’s not wrong that those contact policies should be upheld. And whatever else you think about Merrick Garland’s decision to appoint for John Lausch and then Robert Hur to investigate this, the necessity to uphold contact policies, to which Garland has (as far as is public) adhered to rigorously, is a really good reason to appoint a Special Counsel (and, for that matter, for the White House to be very reserved about its public comments). Trump’s favorite way of violating the contact policy was to Tweet something that would, fairly routinely, be followed almost immediately by DOJ taking action, including on criminal cases (most notably with Roger Stone’s).

Indeed, Biden’s people have said that one reason they have not issued more public comments was in an attempt to avoid even appearing to influence the process.

They should revert to that stance, in my opinion, and point to Evan Corcoran’s letter as authority to do so.

Evan Corcoran said a lot of things. He’s not a national security expert though, so if I were Biden, I wouldn’t rely on it.

But we should be able to rely on his argument that Trump doesn’t think that Biden should be charged, at least not with 18 USC 1924.

Kash Patel Wants the Insurrection Protection Committee to Investigate Why Robert Hur Tried to Protect Past Ongoing Investigations

Matt Taibbi (aka MattyDickPics) and Kash Patel are whining about the Nunes Memo again.

As you’ll recall, in the first year of the Trump Administration, Patel wrote a misleading memo for Devin Nunes purporting that the entire Russian investigation stemmed from the Steele dossier.  When the Carter Page IG Report and FISA applications were released, it became clear how Patel spun the facts. In this post I cataloged what both Nunes and Adam Schiff, in his counterpart to the Nunes memo, got wrong.

But it’s not the Nunes Memo itself that Taibbi and Patel are whining about. They’re complaining about the circumstances of its release five years ago.

Taibbi made it the subject of his latest Twitter Files propaganda thread and related Substack — the latter of which, astoundingly, says the public has to rely on the attributions of cloud companies, something Taibbi has always refused to do when discussing the GRU attribution of the 2016 hacks targeting Democratic targets. “It’s over, you nitwits. It’s time to stow the Mueller votive candles, cop to the coverage pileup created by years of errors, and start the reconciliation process,” Taibbi says, in appealing to precisely the kind of evidence he himself has refused to credit for more than six years. I dealt with both in this thread, but the important takeaway is that Taibbi doesn’t even manage to get facts that both the Daily Beast and I were able to cover in real time, including the fact that Republicans, too, were making unsupported claims based on the Dashboard’s reporting and Russian trolls were part of — just not the biggest part — of the campaign.

[A] knowledgeable source says that Twitter’s internal analysis has thus far found that authentic American accounts, and not Russian imposters or automated bots, are driving #ReleaseTheMemo. There are no preliminary indications that the Twitter activity either driving the hashtag or engaging with it is either predominantly Russian.

In short, according to this source, who would not speak to The Daily Beast for attribution, the retweets are coming from inside the country.

The source pointed to influential American users on the right, including Donald Trump Jr., with his 2.49 million followers, pushing the hashtag forward. It’s become a favorite of far-right Republican congressmen, including Steve King, who claimed the still-secret memo shows the FBI was behaving “worse than Watergate” in one viral tweet. Mark Meadows called it an “absolutely shocking” display of “FISA abuses,” referring to a counterintelligence process.

Rules of Engagement

There are reasons for skepticism about both the source’s claim and Alliance for Securing Democracy’s contrary findings.

Russian influence accounts did, in fact, send an outsize number of tweets about #ReleaseTheMemo—simply not enough for those accounts to reach the top of Twitter’s internal analysis.

Meanwhile, Kash Patel is outraged that Merrick Garland picked Robert Hur as Special Counsel to investigate Biden’s mishandling of classified documents because, when and after serving as a top aide to Rod Rosenstein in the early days of the Russian investigation, he opposed release of the memo.

This guy Hur needs to be the first one subpoenaed by the new Special Select Committee under Jim Jordan’s authority on the weaponization of government and do you want to know why? Because Hur — we have the receipts, Steve, and we’re going to release them later — was sending communications to the Justice Department and Rod Rosenstein’s crew arguing against the release of the Nunes memo. Saying that it would bastardize and destroy the United States national security apparatus. This guy is a swamp monster of the Tier One level, he’s a government gangster, he’s now in charge of the continued crime scene cover-up, which is why the first congressional subpoena that has to go out for the weaponization of government subcommittee is against Hur.

Remember, this committee was modified during the period when key insurrectionists were refusing to vote for Kevin McCarthy to include language authorizing the committee to investigate why the Executive Branch is permitted to conduct criminal investigations of US citizens.

the expansive role of article II authority vested in the executive branch to collect information on or otherwise investigate citizens of the United States, including ongoing criminal investigations;

It may be the intent to interfere in ongoing investigations into people like Scott Perry and Paul Gosar (who changed their votes on McCarthy later in the week, as these changes were being made) and Jordan (who will have great leeway to direct the direction of this committee). But Jordan may be surprised when he discovers that Merrick Garland will enforce the long-standing DOJ policies about providing Congress access to ongoing investigations that Jeff Sessions and Matt Whitaker and Bill Barr did not. Indeed, some precedents from the Russia investigation legally prohibit the sharing of this information with Congress.

But Kash’s complaint (back atcha with the rap gangsta alliteration, Kash!) is a bellybutton moment in which he attempts to villainize Hur’s past commitment to those long-standing DOJ (and intelligence community, including the NSA that conduct much FISA surveillance) policies. Consider the things the memo revealed, many of which had never before been released publicly.

  • Details about the dates and approvals for four FISA orders
  • Financial details involving private individuals, including US citizens
  • Contents of the FISA memo (but not their true context)
  • A reference to a Mike Isikoff article that appeared in the Carter Page applications; Kash was outraged when his own public article was included in the warrant affidavit targeting Trump
  • Details from a Confidential Human Source file
  • Misrepresentations about both Bruce Ohr and his spouse, the latter of whom was a private citizen whose work was shared with the FBI as part of the effort to vet the dossier
  • Direct communications with the President-elect the likes of which Trump claimed were covered by Executive Privilege in the Mueller investigation
  • False claims about the texts between Peter Strzok and Lisa Page that are currently the subject of two Privacy Act lawsuits; even aside from the privacy implications, at the time it was virtually unprecedented for texts between FBI officials to be released, even in criminal discovery (and many of these released, including some misrepresented in the memo, pertained to work matters unrelated to the Russian investigation)

In other words, Kash Patel wants to investigate Hur’s comments, made either at the time he was the key overseer of the Mueller investigation or during a transition period as he awaited confirmation to be US Attorney, advocating that DOJ protect informants, FISA materials, details about private citizens, and work texts between FBI officials.

The very first thing Kash wants the Insurrection Protection Committee to investigate is why, five years ago, a senior DOJ official advocated following long-standing DOJ policy.