2016 Presidential Election Archives - Page 18 of 184

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

January 23, 2023/35 Comments/in 2016 Presidential Election, 2020 Presidential Election, January 6 Insurrection /by emptywheel

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.

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

January 15, 2023/32 Comments/in 2016 Presidential Election, 2020 Presidential Election, Leak Investigations /by emptywheel

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.

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

January 13, 2023/28 Comments/in 2016 Presidential Election, 2020 Presidential Election, Informants, January 6 Insurrection, Mueller Probe /by emptywheel

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.

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House January 6 Committee: Introductory Material to the Final Report

December 19, 2022/170 Comments/in 2016 Presidential Election, January 6 Insurrection, Trump Administration /by Rayne

[NB: check the byline, thanks. /~Rayne]

This is a working post and thread dedicated to the introductory material of the final report prepared by the House Select Committee to Investigate the January 6th Attack on the United States Capitol.

Under the terms of its authorization, the House January 6 committee’s 18-month investigation into the attack on the U.S. Capitol must culminate in a report, specifically:

… issue a final report to the House containing such findings, conclusions, and recommendations for corrective measures described in subsection (c) as it may deem necessary. …

The report is not yet complete; after it has been submitted the committee will disband within 30 days.

Matty Taibbi’s Dick Pics

December 3, 2022/104 Comments/in 2016 Presidential Election, 2020 Presidential Election, emptywheel, Mueller Probe /by emptywheel

Apparently, Elon Musk decided that the best person to disclose what he promised would show, “what really happened with the Hunter Biden story suppression by Twitter” was Matt Taibbi, someone who — by his own admission (an admission on which he has apparently flip-flopped) — apologized for Russia’s invasion of Ukraine because he was, “so fixated on Western misbehavior that I didn’t bother to take [the] possibility [of Russian invasion] seriously enough.”

Reverse chauvinism, Taibbi called it.

Taibbi’s own apologies for Russia didn’t just start with the Russian imperialism and war crimes, however.

He was long a critic of what he called “RussiaGate” based on the tried and true tactic of treating the Steele dossier and Alfa Bank allegations — and not the legal verdicts that confirmed Trump’s National Security Advisor, campaign manager, Coffee Boy, personal lawyer, and rat-fucker all lied to hide the true nature of their Russian ties — as the primary substance of the case. Taibbi scolded others about shoddy reporting even while he adhered to the Single Server fallacy that not only assumed all the hacked material came from just one server, but ignored the hack of Amazon Web Services content and abundant other evidence attributing the hacks to Russia from other cloud companies. Then there was the time Taibbi tried to smack down on claims that Maria Butina used sex to entice targets, in which he made error after error, all without allowing his false claims to be disrupted by consulting the actual primary sources.

That’s the guy Elmo decided would be a credible voice to tell us what happened with the “Hunter Biden” “laptop” story.

That matters because, as Andy Stepanian explained last night, Twitter had advance warning of a Russian information operation targeting Hunter Biden during the summer of 2020, months before the release of the “Hunter Biden” “laptop.”

Matt Taibbi is either woefully misinformed about this or cynically lying. How do I know? Because I attended two meetings with Twitter representatives in July and August 2020 wherein the Hunter Biden story was discussed within the larger framework of election integrity.

Matt Taibbi’s analysis has myriad problems but the biggest problem is his failure to underscore what initially prompted twitter staff to designate the content in the Post story as “stolen” or “hacked” material. This came from conversations with law enforcement in summer of 2020.

During the election integrity meetings I was present for little was known about how the material would eventually be published. I recall one spokesperson suggesting the Hunter Biden content may publish via “something like wordpress” or “wikileaks-styled” website.

This is the contact with FBI that Twitter and Facebook had about Hunter Biden in 2020, not any immediate response to the Post story. It’s almost certainly what Mark Zuckerberg was referring to in a Joe Rogan interview that has been misrepresented in the aftermath.

Taibbi, the self-described reverse chauvinist, describes any Hunter Biden-specific warnings as general — mentioning neither Hunter Biden nor Russia — and omits the timing.

Perhaps Elmo didn’t give Taibbi this important earlier context. Perhaps it’s Elmo’s fault that his hand-picked Russian apologist left out the specific details of the warning — that they included Hunter Biden and preceded the NYPost story by months — that are necessary context to the stupid decisions Twitter made. But the silence about those details is anything but “what really happened.”

And note Taibbi’s conclusion: There was no government involvement in the laptop story.

Assuming Taibbi were a credible reporter, that should end it. Game over.

Stupid moderation decisions, but not stupid moderation decisions done as a result of pressure from the government.

Taibbi has debunked the conspiracy theory the frothy right has been chasing for months.

Curiously, Taibbi concludes there was no government interference in the story even while he showed proof of a government surrogate pressuring Twitter about its (stupid) moderation decisions on the laptop story.

Taibbi was so deep in his conspiracy theories he didn’t realize that that — a surrogate of the sitting President demanding that Twitter give his campaign advance notice of their content moderation decisions — is closer to a First Amendment violation than suppressing the Post story, no matter how stupid Twitter’s decision was. To be clear: it’s not a First Amendment violation, but kudos to Taibbi for getting closer than all the frothy Republicans have to finding proof of inappropriate pressure.

It came from Trump.

In fact, Taibbi admits that Twitter was honoring requests from the White House, as well as the private entity of the Joe Biden campaign, for takedowns using the content moderation tools.

Taibbi claims that he’s concerned about First Amendment implications of the government pressuring Twitter about content. And then … he ignores the evidence he presents about (what is probably shorthand for) the Trump White House pressuring Twitter about content. Let’s see those specifics, Matty!

Or rather he excuses it, using the old charade of campaign donations which show what a small portion of Twitter employees spend.

And Taibbi’s other claims of bias are just as problematic. In one Tweet, Tweet 30, Taibbi claims that Ro Khanna was the only Democratic official he could find that expressed concern about the Post takedown.

Three Tweets later, Tweet 33, Taibbi describes an emailed report from a research firm polling the response of congressional offices, including Democrat Judy Chu’s, describing that both Democrats, plural, and Republicans “were angry,” which sure seems like Taibbi missed at least one Democrat besides Khanna expressing concern.

Ro Khanna, incidentally, was the leading recipient of donations from Twitter employees in 2022, almost 10% of the total, so to the extent Twitter employees disproportionately donate to Democrats, they’re funding Taibbi’s chosen voice of the First Amendment problems with Twitter’s decision.

The most telling part of Taibbi’s screed, however, is his complaint that when private entity “the Biden team” asked for some take-downs, Twitter obliged.

What Taibbi is complaining about is the way in which Twitter, the entity, always proved most responsive to high level requests.

He seems to think that damns pre-Elmo Twitter, when if anything, Elmo’s moderation decisions have far more dramatically reflected the whims of those with personal access, starting with Andy Ngo, who has personally gotten a bunch of anti-fascists banned from Twitter. If you have a problem with arbitrary, personalized moderation decisions, Elmo is the last guy you should be fronting for.

But there’s an even bigger problem with Taibbi’s smoking gun, the primary evidence he presents that the Biden crowd got special treatment of any kind.

As numerous people have laid out — most notably Free Beacon reporter Andrew Kerr — a number of these takedown requests were of dick pics and other personal porn, a celebrity kind of revenge porn. Others were of Hunter Biden smoking crack — at least a violation of law. But none so far identified pertain to allegations of influence peddling.

Tabbi’s smoking gun amounts to takedown requests of stolen dick pics, precisely the kind of thing that content moderation should be responsive to.

“Handled,” Elmo responded with glee about proof that his predecessors had seen fit to remove leaked porn and dick pics.

That Matty Taibbi, of all people!, would shift subjects, after debunking the conspiracy theory of government pressure that started all this, to dick pics is fairly stunning. That’s because Taibbi is famously thin-skinned when people on Twitter talk about his own — unlike the Hunter Biden pictures, voluntarily exposed — dick exploits from when he lived in Russia. Every time someone on Twitter discusses what a misogynist slime Taibbi was in his Moscow days, he, suspected sock-puppets, and a few persistent Taibbi defenders show up to complain that people on Twitter are talking about what Taibbi did with his dick while under the influence overseas (or to claim it was all, even the misogynistic language, make-believe).

Taibbi was always a poor choice for an exposé based on primary sources.

But Taibbi is a particularly bad surrogate for Elmo to pick to complain about the takedowns of stolen dick pics.

Yet that, in episode one of what Elmo and Taibbi promise will be a series, is the best they’ve got.

“Handled.”

Update: Matty Dick Pics wouldn’t tell his subscribers what conditions he had to agree to to peddle Elmo’s complaints about dick pics.

What I can say is that in exchange for the opportunity to cover a unique and explosive story, I had to agree to certain conditions.

Update: Tim Miller shreds the whole fiasco.

While normal humans who denied Republicans their red wave were enjoying an epic sports weekend, an insular community of MAGA activists and online contrarians led by the world’s richest man (for now) were getting riled up about a cache of leaked emails revealing that the former actor James Woods and Chinese troll accounts were not allowed to post ill-gotten photos of Hunter Biden’s hog on a private company’s microblogging platform 25 months ago.

Now if you are one of the normals—someone who would never think about posting another person’s penis on your social media account; has no desire to see politicians’ kids’ penises when scrolling social media; doesn’t understand why there are other people out there who care one way or another about the moderation policies surrounding stolen penis photos; or can’t even figure out what it is that I’m talking about—then this might seem like a gratuitous matter for an article. Sadly, it is not.

Because among Republican members of Congress, leading conservative media commentators, contrarian substackers, conservative tech bros, and friends of Donald Trump, the ability to post Hunter Biden’s cock shots on Twitter is the number-one issue in America this weekend. They believe that if they are not allowed to post porno, our constitutional republic may be in jeopardy.

I truly, truly wish I were joking.

[snip]

Right-wing commentator Buck Sexton (real name), said this was a “bright red line violation” and that Biden should be IMPEACHED for it. Rep. James Comer (R-TN) was on Fox promising that everyone at Twitter involved with this would be brought before the House Oversight committee. Rep. Billy Long retweeted several MAGA influencers praising Elon for, among other things, “exposing corruption at the highest levels of society” (Projection Alert). Meanwhile Kari Lake hype man Pizzagate Jack Posobiec declared this the “biggest story in modern presidential election history,” claimed that “we can never go back to the country we were before this moment,” and donned this “a digital insurrection.”

In reality, all they really had was a digital erection.

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On the Shoddy Journalistic Defense of “WikLeaks”

November 30, 2022/23 Comments/in 2016 Presidential Election, emptywheel, Press and Media, WikiLeaks /by emptywheel

When it was first published, a letter that the NYT, Guardian, Le Monde, Der Spiegel, and El País signed, calling on the US government to drop the Espionage Act charges against Julian Assange, got the date of Assange’s arrest wrong — it was April 11, not April 12, 2019. The outlets have since corrected the error, though without crediting me for alerting them to it.

A correction was made on Nov. 29, 2022: An earlier version of this letter misstated the date of Julian Assange’s 2019 arrest. It was April 11^th, not April 12^th.

An email was sent by me and then a correction was made. No bill was sent for the free fact checking.

As it currently exists, even after correcting that error, the Guardian version of the letter misspells WikiLeaks: “WikLeaks.”

For Julian Assange, publisher of WikLeaks, the publication of “Cablegate” and several other related leaks had the most severe consequences. On [April 11th] 2019, Assange was arrested in London on a US arrest warrant, and has now been held for three and a half years in a high-security British prison usually used for terrorists and members of organised crime groups. He faces extradition to the US and a sentence of up to 175 years in an American maximum-security prison. [my emphasis]

The slovenly standards with which five major newspapers released this letter suggest the other inaccuracies in the letter may be the result of sloppiness or — in some cases — outright ignorance about the case on which they claim to comment.

Take the claim Assange could serve his sentence in “an American maximum-security prison.” The assurances on which British judges relied before approving the extradition included a commitment that the US would agree to transfer Assange to serve any sentence, were he convicted, in Australia.

Ground 5: The USA has now provided the United Kingdom with a package of assurances which are responsive to the judge’s specific findings in this case. In particular, the US has provided assurances that Mr Assange will not be subject to SAMs or imprisoned at ADX (unless he were to do something subsequent to the offering of these assurances that meets the tests for the imposition of SAMs or designation to ADX). The USA has also provided an assurance that they will consent to Mr Assange being transferred to Australia to serve any custodial sentence imposed on him if he is convicted.

While the assurances that Assange wouldn’t be subject to Special Administrative Measures (basically contact limits that amount to isolation) aren’t worth the paper they were written on — partly because Assange did so much at the Ecuadorian Embassy that, if done in a US jail, would get him subject to SAMs, and partly because the process of designation under SAMs is so arbitrary — reneging on the agreement to transfer Assange to Australia would create a significant diplomatic row. A sentence in an American maximum-security prison is explicitly excluded from the terms of the extradition before Attorney General Garland, unless Assange ultimately chose to stay in the US over Australia (or Australia refused to take him).

The claim that he could be sentenced to 175 years, when the reality is that sentencing guidelines and concurrent sentences would almost certainly result in a fraction of that, is misleading, albeit absolutely within the norm for shoddy journalism about the US legal system. It’s also needlessly misleading, since any sentence he would face would be plenty draconian by European standards. Repeating a favorite Assange line, one that is legally true but practically misleading, does little to recommend the letter.

In the next paragraph, these five media outlets seem to suggest that the Computer Fraud and Abuse Act conspiracy alleged in “the indictment” is limited to Assange’s effort to crack a password.

This group of editors and publishers, all of whom had worked with Assange, felt the need to publicly criticise his conduct in 2011 when unredacted copies of the cables were released, and some of us are concerned about the allegations in the indictment that he attempted to aid in computer intrusion of a classified database. But we come together now to express our grave concerns about the continued prosecution of Julian Assange for obtaining and publishing classified materials.

It is — in the 2017 to 2019 charging documents. But not the one on which Assange is being extradited.

The hacking conspiracy, as currently charged, is a 5-year conspiracy that alleges far more than — and starts before — the password cracking seemingly described in the paragraph. It includes Assange’s use of Siggi’s credentials to access a police database to monitor any investigation into himself, a request to hack a former WikiLeaks associate, the recruitment of Anonymous hackers to target US-based companies (arguably also an attempt to aid in the computer intrusion of classified databases, albeit not US government ones), and the exploitation of WikiLeaks’ role in helping Edward Snowden flee to recruit more hacks including, explicitly, a sysadmin hack of the CIA’s classified databases like the one for which Joshua Schulte has now been convicted. (The existing indictment ends at 2015, before the start of Schulte’s actions, though I would be unsurprised to see a superseding indictment incorporating that hack, leak, and exposure of sensitive identities.)

Are these media outlets upset that DOJ has charged Assange for a conspiracy in which at least six others have been prosecuted, including in the UK? Are they saying that’s what their own journalists do, recruit teenaged fraudsters who in turn recruit hackers for them? Or are these outlets simply unaware of the 2020 indictment, as many Assange boosters are?

Whichever it is, it exhibits little awareness of the import that Judge Vanessa Baraitser accorded the hacking conspiracy to distinguish Assange’s actions from actual journalism.

At the same time as these communications, it is alleged, he was encouraging others to hack into computers to obtain information. This activity does not form part of the “Manning” allegations but it took place at exactly the same time and supports the case that Mr. Assange was engaged in a wider scheme, to work with computer hackers and whistle blowers to obtain information for Wikileaks. Ms. Manning was aware of his work with these hacking groups as Mr. Assange messaged her several times about it. For example, it is alleged that, on 5 March 2010 Mr. Assange told Ms. Manning that he had received stolen banking documents from a source (Teenager); on 10 March 2010, Mr. Assange told Ms. Manning that he had given an “intel source” a “list of things we wanted and the source had provided four months of recordings of all phones in the Parliament of the government of NATO country-1; and, on 17 March 2010, Mr. Assange told Ms. Manning that he used the unauthorised access given to him by a source, to access a government website of NATO country-1 used to track police vehicles. His agreement with Ms. Manning, to decipher the alphanumeric code she gave him, took place on 8 March 2010, in the midst of his efforts to obtain, and to recruit others to obtain, information through computer hacking

[snip]

In relation to Ms. Manning, it is alleged that Mr. Assange was engaged in these same activities. During their contact over many months, he encouraged her to obtain information when she had told him she had no more to give him, he identified for her particular information he would like to have from the government database for her to provide to him, and, in the most obvious example of his using his computer hacking skills to further his objective, he tried to decipher an alphanumeric code she sent to him. If the allegations are proved, then his agreement with Ms. Manning and his agreements with these groups of computer hackers took him outside any role of investigative journalism. He was acting to further the overall objective of WikiLeaks to obtain protected information, by hacking if necessary. Notwithstanding the vital role played by the press in a democratic society, journalists have the same duty as everyone else to obey the ordinary criminal law. In this case Mr. Assange’s alleged acts were unlawful and he does not become immune from criminal liability merely because he claims he was acting as a journalist.

Whether editors and publishers at the five media outlets know that Assange was superseded in 2020 or not or just used vague language that could be read, given the actual allegations in the indictment, to suggest that some of them think Assange shouldn’t be prosecuted for conspiring to hack private companies, the language they included about the CFAA charge has led other outlets, picking up on this misleading language (along with the original error about the arrest date), to write at length about an indictment, with a more limited CFAA charge, that is not before Attorney General Merrick Garland. So maybe the NYT, Guardian, Le Monde, Der Spiegel, and El País know about the true extent of the CFAA charge, but by their vagueness, these five leading newspapers have contributed to overtly false claims by others about it.

Finally, the letter repeats WikiLeaks’ narrative about the changing DOJ views on Assange, presenting it as a binary between the “Obama-Biden” and Donald Trump Administrations.

The Obama-Biden administration, in office during the WikiLeaks publication in 2010, refrained from indicting Assange, explaining that they would have had to indict journalists from major news outlets too. Their position placed a premium on press freedom, despite its uncomfortable consequences. Under Donald Trump however, the position changed. The DoJ relied on an old law, the Espionage Act of 1917 (designed to prosecute potential spies during world war one), which has never been used to prosecute a publisher or broadcaster.

This is a story WikiLeaks likes to tell even while incessantly publicizing a a story that debunks it. It is based on a public quote — made in November 2013 by former DOJ spox, Matt Miller, who left DOJ in 2011, about why DOJ wouldn’t charge Assange. But a Yahoo story last year included former Counterintelligence head Bill Evanina’s description of how the US approach to WikiLeaks began to change in 2013, after Miller left DOJ but still during the Obama Administration, based on WikiLeaks’ role in helping Snowden flee.

That began to change in 2013, when Edward Snowden, a National Security Agency contractor, fled to Hong Kong with a massive trove of classified materials, some of which revealed that the U.S. government was illegally spying on Americans. WikiLeaks helped arrange Snowden’s escape to Russia from Hong Kong. A WikiLeaks editor also accompanied Snowden to Russia, staying with him during his 39-day enforced stay at a Moscow airport and living with him for three months after Russia granted Snowden asylum.

In the wake of the Snowden revelations, the Obama administration allowed the intelligence community to prioritize collection on WikiLeaks, according to Evanina, now the CEO of the Evanina Group.

Years earlier, CNN reported the same thing: that the US understanding of WikiLeaks began to change based on its role in helping Snowden to flee.

It should be unsurprising that the government’s approach to WikiLeaks changed after the outlet helped a former intelligence officer travel safely out of Hong Kong, because at least one media outlet made similar judgments about how that distinguishes WikiLeaks from journalism. Bart Gellman’s book described how lawyers for WaPo believed the journalists should not publish Snowden’s key to help him authenticate himself with foreign governments — basically, something else that would have helped him flee. Once Gellman understood what Snowden wanted, he realized it would make WaPo, “a knowing instrument of his flight from American law.” By his description, the lawyers implied Gellman and Laura Poitras might risk aid and abetting charges unless they refused a “direct attempt to enlist [them] in assisting him with his plans to approach foreign governments.” Like the US government, the WaPo judged in 2013 that helping Snowden obtain protection from other, potentially hostile, governments would legally go beyond journalism.

This is one reason clearly conveying the scope of the CFAA allegations is central to any credible commentary on the Assange case: because Assange’s exploitation of the Snowden assistance is an overt act charged in it. But five media outlets skip both the import of that act and its inclusion in the charges against Assange in a bid to influence the Biden Administration.

This WikiLeaks narrative also obscures one more step in the evolution of the understanding of Assange during the Obama administration, one that is more problematic for this letter, given that it would hope to persuade Attorney General Merrick Garland. Per the Yahoo article that WikiLeaks never tires of publicizing, the US government’s understanding of WikiLeaks changed still more when the outlet partnered with Russian intelligence on its 2016 hack-and-leak campaign.

Assange’s communication with the suspected operatives settled the matter for some U.S. officials. The events of 2016 “really crystallized” U.S. intelligence officials’ belief that the WikiLeaks founder “was acting in collusion with people who were using him to hurt the interests of the United States,” said [National Intelligence General Counsel Bob] Litt.

That’s important because, while the parts pertaining to WikiLeaks are almost entirely redacted, the SSCI Report on responses to the 2016 hack-and-leak makes it clear how central a role then-Homeland Security Advisor and current Deputy Attorney General Lisa Monaco played in the process. You’re writing a letter about which Garland would undoubtedly consult with Monaco. She knows that the gradual reassessment of WikiLeaks was no lightswitch that flipped with the inauguration of Donald Trump. Treating it as one provides one more basis on which DOJ could dismiss this letter. What changed wasn’t the administration: it was a series of WikiLeaks actions that increasingly overcame the “New York Times problem,” leading to expanded collection on Assange himself, leading to a different understanding of his actions.

Here’s why I find the sloppiness of this letter so frustrating.

I absolutely agree that, as charged, the Espionage Act charges against Assange are a dangerous precedent. That’s an argument that should be made soberly and credibly, particularly if made by leaders of the journalistic establishment.

I agree with the letter’s point that, “Obtaining and disclosing sensitive information when necessary in the public interest is a core part of the daily work of journalists,” (though these same publishers decided that disclosing the names of US and coalition sources was not in the public interest, and Assange’s privacy breach in doing so was the other basis by which Baraitser distinguished what Assange does from journalism).

But so is fact-checking. So is speaking accurately and with nuance.

If you’re going to write a letter that will be persuasive to the Attorney General, it would be useful to address the indictment and extradition request as it actually exists, not as it existed in 2019 or 2020 or 2021.

And if you’re going to speak with the moral authority of five leading newspapers defending the institution of journalism, you would do well to model the principles of journalism you claim to be defending.

As noted, these outlets corrected the date error after I inquired about the process by which this letter was drafted. I have gotten no on-the-record comments about the drafting of this letter in response.

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What that Report Purportedly Authenticating the “Hunter Biden” “Laptop” Really Said

November 18, 2022/52 Comments/in 2016 Presidential Election, 2022 Mid-Term Election /by emptywheel

I’ve reported on the WaPo story on the security review of the disk drive commonly referred to as the “Hunter Biden” “laptop” a bunch of times.

But in advance of ripping apart this James Comer fan-fiction about Hunter Biden and before the Twitter thread I did disappears into the Elmo dumpster fire, I wanted to repeat it here. The WaPo asked security experts Matt Green (who worked with his Johns Hopkins students) and Jake Williams to review the drive to see what they could authenticate.

They discovered that people had kept adding content to the “laptop,” making it impossible to say what was on the “laptop” when it was provided to the blind computer repairman.

In their examinations, Green and Williams found evidence that people other than Hunter Biden had accessed the drive and written files to it, both before and after the initial stories in the New York Post and long after the laptop itself had been turned over to the FBI.

Maxey had alerted The Washington Post to this issue in advance, saying that others had accessed the data to examine its contents and make copies of files. But the lack of what experts call a “clean chain of custody” undermined Green’s and Williams’s ability to determine the authenticity of most of the drive’s contents.

“The drive is a mess,” Green said.

He compared the portable drive he received from The Post to a crime scene in which detectives arrive to find Big Mac wrappers carelessly left behind by police officers who were there before them, contaminating the evidence.

That assessment was echoed by Williams.

“From a forensics standpoint, it’s a disaster,” Williams said.

Still more important: some of the forensic data that would be necessary to authenticate the drive itself had been deleted.

Analysis was made significantly more difficult, both experts said, because the data had been handled repeatedly in a manner that deleted logs and other files that forensic experts use to establish a file’s authenticity.

“No evidence of tampering was discovered, but as noted throughout, several key pieces of evidence useful in discovering tampering were not available,” Williams’ reports concluded.

Williams was able to authenticate fewer than 10% of the files on the drive, though that included some emails involving CEFC China Energy.

The portable drive provided to The Post contains 286,000 individual user files, including documents, photos, videos and chat logs. Of those, Green and Williams concluded that nearly 22,000 emails among those files carried cryptographic signatures that could be verified using technology that would be difficult for even the most sophisticated hackers to fake.

[snip]

In particular, there are verified emails illuminating a deal Hunter Biden developed with a fast-growing Chinese energy conglomerate, CEFC China Energy, for which he was paid nearly $5 million, and other business relationships. Those business dealings are the subject of a separate Washington Post story published at the same time as this one on the forensic examinations of the drive.

The “Big Guy” email could not be authenticated.

Some other emails on the drive that have been the foundation for previous news reports could not be verified because the messages lacked verifiable cryptographic signatures. One such email was widely described as referring to Joe Biden as “the big guy” and suggesting the elder Biden would receive a cut of a business deal.

There were authenticated emails from Burisma, but if Burisma was hacked (as a security company, Area 1 Security, said it was before the laptop was disclosed), hackers could have faked cryptographic signatures, including on those from Burisma advisor Vadym Pozharskyi that have been the focus of a lot of attention.

The drive also includes some verified emails from Hunter Biden’s work with Burisma, the Ukrainian energy company for which he was a board member. President Donald Trump’s efforts to tie Joe Biden to the removal of a Ukrainian prosecutor investigating Burisma led to Trump’s first impeachment trial, which ended in acquittal in February 2020.

The Post’s review of these emails found that most were routine communications that provided little new insight into Hunter Biden’s work for the company.

[snip]

Both Green and Williams said the Burisma emails they verified cryptographically were likely to be authentic, but they cautioned that if the company was hacked, it would be possible to fake cryptographic signatures — something much less likely to happen with Google.

Note, as I understand the timing, these emails could have been altered only if the laptop reaccessed the Burisma server after the hack.

In any case, the “laptop” is a completely unreliable shitshow precisely because Rudy Giuliani and Steve Bannon were in such a rush to make it a political scandal.

And yet the new Republican majority in Congress is sure it is “real.”

James Comer has kicked off his tenure as Oversight Chair by proclaiming that the forensic mess left behind by frothy conspiracy-mongers is, instead, “REAL.”

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Judge Sanctions Alina Habba for Misrepresenting Igor Danchenko Indictment

November 11, 2022/55 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

There are a number of reasons why Judge Donald Middlebrook sanctioned Alina Habba and Peter Ticktin for the frivolous claims they made against Chuck Dolan in the omnibus lawsuit against Hillary Clinton and a bunch of other people.

In reverse order, Middlebrook found that the lawsuit was filed for improper purpose: to advance a political grievance.

Every claim was frivolous, most barred by settled, well-established existing law. These were political grievances masquerading as legal claims. This cannot be attributed to incompetent lawyering. It was a deliberate use of the judicial system to pursue a political agenda.

[snip]

The rule of law is undermined by the toxic combination of political fundraising with legal fees paid by political action committees, reckless and factually untrue statements by lawyers at rallies and in the media, and efforts to advance a political narrative through lawsuits without factual basis or any cognizable legal theory.

He ruled that it’s not RICO, it’s never RICO (or any of the other conspiracies Habba alleged, either).

In the RICO count of the Amended Complaint, Plaintiff realleged the previous 619 paragraphs, and it was a mystery who he intended to sue. In the caption to Count II, he named 22 defendants but in the prayer for relief for that count 28 were named. Added were HF ACC, Inc., the DNC Services Corporations, James Comey, Peter Strzok, Lisa Page, and Andrew McCabe. (Am. Compl. ¶ 633). Whoever he intended to sue, Plaintiff alleged that each of them “knew about and agreed to facilitate the Enterprise’s scheme to harm the Plaintiff’s political career, tarnish his electability, and undermine his ability to effectively govern as the President of the United States . . . . ” (Am. Compl. ¶ 627).

The RICO conspiracy claims were entirely conclusory. Moreover, there is no standing to bring a RICO conspiracy claim unless injury resulted from violation of a substantive provision of RICO.

Of greatest interest to me, however, to substantiate a finding that the lawsuit’s allegations against Chuck Dolan lacked any reasonable factual basis, Judge Middlebrook laid out how Habba misrepresented the Igor Danchenko indictment to include Dolan in her conspiracy theories. Middlebrook focused closely on Habba’s claims that the pee tape allegation in the Steele dossier “was derived from Dolan.” He rejected Habba’s defense of the allegations against Dolan by pointing to stuff she left out.

Mr. Trump’s lawyers claim “nearly all” of the allegations against Mr. Dolan were sourced directly from the Indictment brought against Igor Danchenko by special counsel John Durham. (DE 270-2 at 6). But this is simply not so. As was the practice throughout the Amended Complaint, Plaintiff cherry-picked portions which supported his narrative while ignoring those that undermined or contradicted it.1 Mr. Trump’s lawyers persisted in this misrepresentation after being warned by the sanctions motion, and they doubled down on this falsehood in their response to the motion.

[snip]

Even more telling are the portions of the Indictment ignored by Plaintiff. The Indictment alleges that Mr. Dolan and others were planning a business conference to be held in Moscow on behalf of businessmen seeking to explore investments in Russia. (DE 270-2 ¶ 21). Mr. Danchenko was introduced to Mr. Dolan in connection with business activities. (Id. ¶ 18).

Significantly the Indictment alleges two other facts relevant to and, if true, fatal to Plaintiff’s claim of conspiracy.

According to [Mr. Dolan], individuals affiliated with the Clinton Campaign did not direct, and were not aware of, the aforementioned meetings and activities with Danchenko and other Russian nationals.

***

According to [Mr. Dolan], he [Mr. Dolan] was not aware at the time of the specifics of Danchenko’s ‘project against Trump,’ or that Danchenko’s reporting would be provided to the FBI.

And with regard to the allegation about sexual activity, the Indictment alleges that Mr. Dolan and another individual were given a tour of a Moscow hotel in June 2016, told that Mr. Trump had previously stayed in the Presidential suite, and according to both Mr. Dolan and the other individual, the staff member who gave the tour did not mention any sexual or salacious activity. (Id. ¶¶ 60-61). The Indictment does not allege that the information concerning sexual activity was provided by Mr. Dolan.

The May 31, 2022 warning letter told the Trump lawyers that Mr. Dolan had been questioned by the FBI on multiple occasions, that the Danchenko Indictment detailed his contacts with Mr. Danchenko but did not indicate he “discussed any sexual rumors with Mr. Danchenko — because he did not.” (DE 268-1 at 2). The Indictment confirms that Mr. Dolan spoke to the FBI, and not only was he not charged with any falsehood, but his statements are included within the Indictment. The Indictment contradicts rather than supports Plaintiff’s allegations against Mr. Dolan. Far from being “sourced directly” and cited “word-for-word,” (DE 270 at 5), Plaintiff’s use of the Indictment is nothing short of a deliberate disregard of the truth or falsity of their claims. This is a textbook example of sanctionable conduct under Rule 11.

Rather than express any regret, Plaintiff doubled down on his claims: “Plaintiff’s allegation that Defendant was the source of the salacious sexual activity rumor has a legitimate factual basis and is based upon a well-reasoned theory that may well be proven correct during the [Office of Special Counsel’s] upcoming trial of Danchenko.” (DE 270 at 10).

It was never to be. In the Danchenko trial, Mr. Dolan was called as a witness by the government about matters unrelated to the Ritz Carlton rumors. The government never alleged that Mr. Dolan was a source for the Ritz Carlton story. See Order, United States v. Igor Y. Danchenko, Case No. 21-cr-00245-AJT at 5 (Oct. 4, 2022). And Mr. Danchenko was ultimately acquitted by the jury.

1 The “sourced directly” claim is untrue. For example, the Indictment says: “In or about April 2016, Danchenko and [Mr. Dolan] engaged in discussions regarding potential business collaboration between PR Firm-1 and UK Investigative Firm-1 on issues related to Russia.” (DE 270-2 ¶ 23). The Amended Complaint, however, states: “In late April 2016 Danchenko began having discussions with Dolan about a potential business collaboration between Orbis Ltd. and Kglobal to create a ‘dossier’ to smear Donald J. Trump and to disseminate the false accusations to the media.” (Am. Compl. ¶ 96(c)).

The order as a whole generated a lot of attention on the failed birdsite. But there was no self-awareness that the exercise that Habba engaged in with respect to Dolan and the Danchenko prosecution was similar to what a number of journalists (and a great number of right wingers and other frothers) themselves did, when the Danchenko indictment was rolled out last year.

For example, here’s what the WaPo claimed in a still-uncorrected report last year:

Durham says Danchenko [1] made up a conversation [2] he claimed was the source of one of the dossier’s most salacious claims, that Trump paid prostitutes at a Moscow hotel room to urinate on a bed in which President Barack Obama had once slept. The dossier also suggested Russian intelligence agencies had secretly recorded that event as potential blackmail material. Trump has denied any such encounter.

The indictment [3] suggests that story came from Dolan, who in June 2016 toured a suite at a hotel in Moscow that was once occupied by Trump. According to the indictment, Danchenko [4] falsely told Steele and the FBI that the information came from the president of the U.S. Russian-American Chamber of Commerce at the time.

All four of the above claims are not supported by the indictment, much less Danchenko’s published interviews with the FBI, which attributed the pee tape claim to someone else — though it is definitely the case that Durham encouraged such unsupported inferences.

Jonathan Swan condensed the same kinds of claims that Habba just got sanctioned for in one tweet.

Just one “rumor” was attributed to Dolan in the Danchenko indictment, the most provably true one (because it came from media coverage), and one about which — as the trial established — the FBI never once asked Danchenko, in significant part because it had nothing to do with Russia.

And while Middlebrook notes that Danchenko was acquitted, he doesn’t note that Judge Anthony Trenga dismissed the single Dolan count because the allegedly false statement Danchenko made about Dolan was “literally true.” That should not have been a surprising judgment. I noted problems with that charge exactly a year ago, when I catalogued all the sloppy reporting on the Danchenko indictment.

Middlebrook’s order makes for great reading. It’s fun to laugh at Habba getting called out.

But it should bring some reflection from the journalists who made the same kind of logical jumps that Habba did, but who cannot be sanctioned for professional failures.

Middlebrook may not be done. The other defendants have asked for sanctions, as well (though without doing the same preparation in advance to ask for Rule 11 sanctions). So Donald Trump’s lawyers may yet have the privilege of paying Peter Strzok and Hillary Clinton for the privilege of having sued them.

Update: Corrected Middlebrook’s name.

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The Roger Stone Convergence at the Winter Palace

November 2, 2022/60 Comments/in 2016 Presidential Election, 2018 Mid-Term Election, 2020 Presidential Election, January 6 Insurrection /by emptywheel

There was a status hearing in the Owen Shroyer case last week that was so short it was over by the time I had entered the dial-in code. Shroyer, you’ll recall, is the Alex Jones sidekick who was charged for violating his specific prohibition on being an asshole at the Capitol. His lawyer, Norm Pattis, happens to be the lawyer who sent a large swath of Alex Jones’ data to the Texas Sandy Hook plaintiffs, and then presided over the $1 billion judgement in the Connecticut Sandy Hook lawsuit. On June 14, Pattis noticed his appearance on Joe Biggs’ legal team, effectively giving him visibility on how badly the discovery in the Proud Boy case implicates Shroyer and Jones and Ali Alexander. Shroyer appears to be stalling on his decision about whether he wants to enter a plea agreement — one that would presumably require some cooperation — or whether he wants to stick around and be charged in a superseding indictment along with everyone else.

Shroyer has until November 29 to make that decision, around which time I expect a Roger Stone convergence to become more clear.

The Roger Stone convergence has been coming for some time (I’ve been pointing to it for at 14 months). Yesterday, NYT reported that one means by which it is coming is in the dissemination of the We the People document laying out plans to occupy buildings — under the code “Winter Palace” — which the FBI found on the Enrique Tarrio phone it took over a year to exploit.

As I laid out here, the document is important because it shows Tarrio’s motive on January 6 in his assertion that “every waking moment consists of” planning for revolution.

41. Between December 30 and December 31, 2020, TARRIO communicated multiple times with an individual whose identity is known to the grand jury. On December 30, 2020, this individual sent TARRIO a nine-page document tiled, “1776 Returns.” The document set forth a plan to occupy a few “crucial buildings” in Washington, D.C., on January 6, including House and Senate office buildings around the Capitol, with as “many people as possible” to “show our politicians We the People are in charge.” After sending the document, the individual stated, “The revolution is important than anything.” TARRIO responded, “That’s what every waking moment consists of… I’m not playing games.”

And an exchange he had with now-cooperating witness Jeremy Bertino that they had succeeded in implementing the Winter Palace plan shows that Tarrio recognized that occupying buildings was part of his plan.

107. At 7:39 pm, PERSON-1 sent two text messages to TARRIO that read, “Brother. ‘You know we made this happen,” and “I’m so proud of my country today.” TARRIO responded, “I know” At 7:44 pm. the conversation continued, with PERSON-1 texting, “1776 motherfuckers.” TARRIO responded, “The Winter Palace.” PERSON-1 texted, “Dude. Did we just influence history?” TARRIO responded, “Let’s first see how this plays out.” PERSON-1 stated, “They HAVE to certify today! Or it’s invalid.” These messages were exchanged before the Senate returned to its chamber at approximately 8:00 p.m. to resume certifying the Electoral College vote.

The NYT story reveals that Eryka Gemma is the person who sent the document to Tarrio, but she was not its author.

As a part of the investigation, prosecutors are seeking to understand whether Mr. Engels has ties to a little-known Miami-based cryptocurrency promoter who may have played a role in the Capitol attack.

A week before the building was stormed, the promoter, Eryka Gemma, gave Mr. Tarrio a document titled “1776 Returns,” according to several people familiar with the matter. The document laid out a detailed plan to surveil and storm government buildings around the Capitol on Jan. 6 in a pressure campaign to demand a new election.

[snip]

The federal indictment of Mr. Tarrio says that the person who provided him with “1776 Returns” told him, shortly after it was sent, “The revolution is more important than anything.” That person was Ms. Gemma, according to several people familiar with the matter.

But Ms. Gemma was not the author of “1776 Returns,” which was written by others, first as a shared document on Google, the people said.

It remains unclear who the original authors were.

It may be unclear or detrimental to the sources for this story who originally wrote the document; it’s probably not to investigators who can simply send a warrant to Google.

And whether because investigators know who wrote the document or for some other reason (such as that they have just a few more weeks of pre-sentencing cooperation with Joel Greenberg), they’re trying to understand whether this document, laying out a plan to occupy buildings, had an analogue in the Florida-based riots that key Roger Stone associate, Jacob Engels, staged in 2018 in an attempt to thwart any delays in certification for Rick Scott (and Ron DeSantis, who gets a positive shout out by name in the Winter Palace document).

On Nov. 9, [2018] a group of about 100 angry protesters, including members of the Proud Boys, descended on the Broward County elections office, carrying pro-Scott and pro-Trump signs and protesting the recount.

The event drew support from several far-right activists in Florida linked to Mr. Stone — among them, Ali Alexander, who later organized Stop the Steal events around the 2020 election, and Joseph Biggs, a leader of the Proud Boys who has since been charged alongside Mr. Tarrio in the Jan. 6 seditious conspiracy case.

The NYT describes this line of inquiry as happening via two different sets of prosecutors, which is a sign of either convergence or simply the networked structure that DOJ’s approach, using parallel and (through Stone) intersecting, conspiracy indictments clearly facilitated (Shroyer’s prosecution team, incidentally, features an Oath Keeper prosecutor and a key assault prosecutor).

In recent months, prosecutors overseeing the seditious conspiracy case of five members of the Proud Boys have expanded their investigation to examine the role that Jacob Engels — a Florida Proud Boy who accompanied Mr. Stone to Washington for Jan. 6 — played in the 2018 protests, according to a person briefed on the matter.

The prosecutors want to know whether Mr. Engels received any payments or drew up any plans for the Florida demonstration, and whether he has ties to other people connected to the Proud Boys’ activities in the run-up to the storming of the Capitol.

Different prosecutors connected to the Jan. 6 investigation have also been asking questions about efforts by Mr. Stone — a longtime adviser to Mr. Trump — to stave off a recount in the 2018 Senate race in Florida, according to other people familiar with the matter.

While the NYT describes (breaking news!) that Engels was one of the people who in 2019, along with Tarrio, crafted an attack on the judge presiding over Roger Stone’s case, Amy Berman Jackson, it does not note that the Stop the Steal effort dates back two years earlier than the 2018 riot, to voter intimidation efforts that Stone pursued that look similar to the current drop box intimidation effort being disseminated via Trump’s shitty social media website (NYT does mention the Brooks Brothers riots in 2000 and notes the participants “apparently work[ed] with Mr. Stone” — more breaking news).

Nor does it describe the backstory to how Biggs showed up in Florida in 2018, fresh off his ouster from InfoWars after playing a key role in both the PizzaGate and Seth Rich hoaxes, both part of a Russian info-op that Stone played a key role in. But it’s part of the prehistory of the Proud Boys that prosecutors are now tracing.

I have no idea whether the very clear 2016 precedent is part of this. DOJ wouldn’t need to do (much) fresh investigation of it because Mueller and DC USAO did quite a bit of investigation before Bill Barr torched the investigation all to hell and then Trump pardoned Stone to avoid being implicated himself. But if it was part of this, no one who would share those details with NYT would know about it unless and until it was indicted. That’s even true of the 2019 incident; DOJ did at least some investigative work into the funding of that, the same questions being asked now about how Engels organized the 2018 riot.

But whether this investigative prong extends no further back than 2018 or whether it includes the Stone Stop the Steal activity that demonstrably paralleled a Russian effort, it does seem that DOJ is investigating how the prior history of the Proud Boys parallels these efforts to undermine democracy and did so in the place — Miami — where the Proud Boys, schooled by the master rat-fucker, are increasingly taking on an official role.

That may not be an investigation about Engels’ actions, directly (though he has long been in the thick of things). Rather, it may be an investigation into resources that were consistent throughout these developments.

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Bill Barr Complains that His Special Counsel Was Unable to Match Robert Mueller’s Record of Success

October 21, 2022/64 Comments/in 2016 Presidential Election, 2020 Presidential Election, emptywheel, Mueller Probe /by emptywheel

Even before the Igor Danchenko trial, Billy Barr declared victory in defeat — arguing that if John Durham could just “fill in a lot of the blanks as to what was really happening,” the inevitable acquittal would still give Durham an opportunity to spin fairy tales about what Durham imagines happened.

“What these cases show is that these are difficult cases to win,” Barr said. “There’s a reason it takes so long, and you have to build up the evidence because at the end of the day, you’re going before these juries that aren’t going to be disposed to side with the people they view as supporting Trump.”

Danchenko is slated to go on trial next month on charges of lying to the FBI about the Steele dossier, for which he was the main source. The dossier claimed that Trump and members of his campaign and company had established extensive ties to the Russian government and had colluded during the 2016 election.

The trial is widely expected to be the final criminal prosecution from Durham’s investigation before he submits a report of his findings to Attorney General Merrick Garland.

But despite Durham’s limited success in the courtroom, Barr defended the investigation he ordered, saying the courtroom was allowing Durham to establish a record of what had occurred with the so-called Russiagate investigation.

“I think Durham got out a lot of important facts that fill in a lot of the blanks as to what was really happening,” Barr said. “My expectation is … the Danchenko trial will also allow for a lot of this story to be told, whether or not he’s ultimately convicted. I hope he’s convicted, but if he isn’t, I still think it provides an avenue to tell the story of what happened.”

Like an obedient puppy, Durham did use the trial as an opportunity to get extraneous details into the public record. On top of the $1 million dollar offer that Brian Auten said, vaguely, Christopher Steele might have gotten if he had corroborated the dosser — which has been treated like an FBI attempt to bribe a source for dirt on Trump and as the most exonerating possible detail, rather than an effort to investigate a real threat to the country — Durham went out of his way to give the full names of people at various meetings so Carter Page and Donald Trump can add them to lawsuits.

Mind you, along the way, the trial also revealed the FBI’s own assessment of Danchenko’s cooperation, which contributed to 25 investigations and which Barr burned to a crisp by exposing him, with Lindsey Graham’s help, as a source in 2020.

Q. And you were concerned, in July of 2020, when you became aware that Attorney General Barr was going to release a redacted version of Mr. Danchenko’s interview in January of 2017?

A. Yes.

Q. You were upset about that?

A. I was.

Q. You found out about that during a telephone conference, right?

A. I did.

Q. And you disagreed with that decision?

A. I did.

Q. The OIG had already completed a report on that investigation, correct?

A. Yes.

Q. And you thought that the release of that document was dangerous?

A. Yes.

Q. You even wrote up a memo of that phone call you were on in July of 2020 where you learned that they were going to publish a redacted version of his interview, correct?

A. I did.

[snip]

Q. And within an hour of Mr. Danchenko’s January interview being released to the senate judiciary committee, the senate judiciary committee, I won’t say who, released it to the public?

A. They did.

[snip]

Q. So, Agent Helson, you wrote in October of 2020 that from 2017 until present day, Mr. Danchenko had provided information on at least 25 FBI investigations assigned to at least six field offices?

A. Correct.

Q. In addition, he aided the United States Government by introducing the United States Government to a sub-source who had provided additional information separate to his report, correct?

A. Correct.

[snip]

Q. And it’s noted that he — his reporting contributed to at least 25 active FBI investigations.

[snip]

Q. In July of 2020 his identity became public after the release of the redacted version of his interview in January of 2017. Since that public disclosure, he has received threatening messages via social media and email. It’s resulted in significant damage to his reputation from false and baseless claims aimed to undermine his credibility. Those are your words, correct?

A. Correct.

Q. The Washington Field Office had assessed that this will have negative ramifications with respect to his ability to provide for his family via personal income for the foreseeable future, correct?

A. Correct.

Q. And while the FBI cannot promise complete anonymity to anyone who provides information, his identity became public only after the decision was made to release the redacted version of his interview, correct?

A. Correct.

Q. As a result of that act, his ability to continue to provide information viable to the FBI is diminished as is his ability to provide financial support to his family.

After the trial, Barr has been spending time on Fox News declaring — as much of the frothy right has — that this record, of how he deliberately harmed national security for revenge, exposed the corruption of what Barr calls “Russiagate,” the moniker frothers use to distract from the real substance of the Russian investigation.

I was disappointed, obviously. I think they did a good job prosecuting the case. Their ability to put evidence on, in a very difficult case, was limited by some rulings, and they weren’t able to get access to some witnesses overseas. So it was a tough — it was a tough case, so this should show people that it’s hard to win these cases, and sometimes it takes time to … to achieve justice. But as people say — I think Andy McCarthy said — the real public interest being served here was exposing the full extent of the corruption that was involved in Russiagate [sic] and the abuse by the FBI in that whole episode. And I think Durham is going to get a report out that’s gonna lay out all the facts.

Barr and everyone else are pointing to the exposures they and Durham made to justify their actions because they didn’t have evidence to support their claims.

Barr is whining that getting false statements convictions is hard. But Robert Mueller was able to prove that:

Alex Van der Zwaan lied to cover up his efforts, in conjunction with Konstantin Kilimnik and Rick Gates, to cover up Manafort’s effort to spin Ukraine’s politicized Yulia Tymoshenko prosecution during the 2016 election
George Papadopoulos lied to cover up his advance knowledge of the Russian effort to help Trump
Mike Flynn lied to cover up his back channel calls with Sergei Kislyak to undermine Obama Administration policy (and also that he was a paid agent of Turkey during the campaign)
Michael Cohen lied to hide the secret negotiations he had directly with the Kremlin about an impossibly lucrative real estate deal
Paul Manafort conspired to cover up a front organization he set up with Konstantin Kilimnik and (at a preponderance of the evidence standard) lied to cover up his August 2016 meeting with Kilimnik
Roger Stone lied and intimidated Randy Credico to cover up his real back channel to the Russian operation

I mean, Robert Mueller had no problem getting convictions, whether from guilty pleas, jury verdicts, or (in the case of Manafort’s lies about the August 2, 2016 meeting) a judge’s ruling.

One reason he had no problem was that these defendants were generally guilty of a lot more than just lying. It’s a lot easier to get Flynn to admit he lied about his back channel discussions with the Russian Ambassador, after all, when he was also on the hook for secretly being an agent of Turkey. It’s lot easier to get Papadopoulos to admit he lied about his advance warning of the Russian operation when he’s trying to stave off foreign agent charges tied to Israel. It’s a lot easier to get a jury verdict against Stone when he spent months plotting out his lies with multiple people on emails.

Mueller wasn’t able to get false statement verdicts from everyone, mind you. For example, because Steve Bannon and Erik Prince deleted their texts from early January 2017, Mueller did not charge them for false statements made to cover up meetings to set up a back channel with UAE and Russia. That’s one lesson that Durham should have taken to heart: Absent the mobile app records from Sergei Millian and Igor Danchenko, he had no way of knowing whether Millian called Danchenko on July 26, 2016.

That’s not the only evidentiary complaint Barr makes here. He’s complaining that Durham was unable to get hearsay admitted against Danchenko. He’s angry that Durham was not permitted to introduce Millian’s wild Twitter boasts as evidence without requiring Millian to show up and make those claims under oath. And he’s complaining that Durham wasn’t able to introduce his pee tape conspiracies without charging it.

But the most alarming of the former Attorney General’s statements — before and after the trial — embrace the notion that it is a proper goal of failed prosecutions to expose information that does not rise to the level of criminality.

As I’ll show in a follow-up, the Durham fiasco is part of a piece of Barr’s larger actions, both his other failed prosecutions — most notably, that of Greg Craig — but also his efforts to undo the convictions for which there was no reasonable doubt of guilt.

It’s not enough to talk about Durham’s unprecedented failure … it’s not enough to note that Durham and his prosecutors repeatedly failed to take basic investigative steps before embracing and charging conspiracy theories that juries didn’t buy … it’s not enough to note how, in an attempt to prove those conspiracy theories, Durham and his prosecutors and abused the prosecutorial system.

Durham’s entire project is a continuation of Barr’s unprecedented politicization of DOJ, one that not only places Republicans attempting to secretly work for hostile nations above the law, but that has made the country far less safe in many other ways.

It’s not just Durham prosecuted two men without any real hope of winning conviction, all to expose things that aren’t crimes. It’s that Billy Barr hired him to do just that.

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

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Interesting links

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