The Access Hollywood Search Doesn’t Mean Trump Coordinated with Assange

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As I noted, yesterday several outlets reported that among the things included in the FBI warrant for Michael Cohen’s premises was communications between Trump, Cohen, and others (whom I suspect to include Steve Bannon and Marc Kasowitz) “regarding the infamous ‘Access Hollywood'” video.

FBI agents who raided the home, office and hotel of Donald Trump’s personal lawyer sought communications that Trump had with attorney Michael Cohen and others regarding the infamous “Access Hollywood” tape that captured Trump making lewd remarks about women a month before the election, according to sources familiar with the matter.

[snip]

The search warrant also sought communications between then-candidate Trump and his associates regarding efforts to prevent disclosure of the tape, according to one of the sources. In addition, investigators wanted records and communications concerning other potential negative information about the candidate that the campaign would have wanted to contain ahead of the election. The source said the warrant was not specific about what this additional information would be.

From that, people on both the right and the left have assumed, without presenting hard evidence, that this means there must be a tie to Russia. Most often, people assume this must mean Trump somehow managed the events of October 7, when the Intelligence Committee report blaming Russia for the DNC hack, the Access Hollywood video, and the first Podesta emails all came out in quick succession.

That’s certainly possible, but thus far there’s no reason to believe that’s the case.

Mueller and Rosenstein referred this

That’s true, first of all, because after consulting with Rod Rosenstein, Robert Mueller referred this to the Southern District of New York for execution and prosecution, rather than dealing with it himself. He did that surely knowing what a sieve for leaks SDNY is, and therefore knowing that doing so would undercut his remarkably silent teamwork thus far.

In spite of a lot of reporting on this raid this week, we don’t yet have a clear understanding of why the two chose to refer it (or, tangentially, why interim SDNY US Attorney Geoffrey Berman recused himself from this matter).

There are two options. The first is that Rosenstein believed hush payments and taxi medallion money laundering sufficiently attenuated to the Russian investigation that it should properly be referred. In which case, the fact that it was referred is itself reason to believe that Mueller — even while he had abundant evidence supporting the search warrant — has no reason to believe those releases were orchestrated with Wikileaks, and therefore have no direct interest to his investigation (though they may cough up one to three witnesses who will be more willing to cooperate when faced with their own fraud indictments). In which case, the Access Hollywood video would be just another example, like the Stormy Daniels and the Karen McDougal payoffs, of Trump’s efforts to bury embarrassing news, using whatever means necessary.

The other option is that Mueller does have evidence that Trump in some way managed the October 7 events, which would be one of the most inflammatory pieces of evidence we would have heard of so far, but that there was some other reason to refer the matter.

Michael Cohen wasn’t serving as an attorney for much of the reported documents

The really good reason to refer the warrant would be so that SDNY would serve as a natural clean team, sorting through seized items for privileged communications, only to hand them back to Mueller’s team in DC once they’ve sorted through them. It’s an idea Preet Bharara and Matt Miller, among others, have floated.

Before we conclude that SDNY is only serving as a clean team for Mueller’s team here, consider that coverage has vastly overstated the degree to which the items being searched will fall under attorney-client privilege.

The search also sought information on Cohen’s taxi medallions, a business in which he has had really corrupt partners, some Russian, with their own legal problems, and one that has reportedly left Cohen with some debt problems that make his purported personal payment to Stormy Daniels all the more sketchy.

In addition, as soon as Trump claimed to know nothing of the hush payment to Daniels last Friday, the government could credibly claim that either Cohen was not representing Trump when paying off Daniels, or involved in fraud.

The NYT has reported that the raid also sought all communications between Cohen and National Enquirer’s top brass, communications that would in no way be privileged.

Even the reported communications about the Access Hollywood video may not be privileged. If they involved four people, then the only way they’d be covered by privilege is if they counted as campaign emails and Marc Kasowitz, not Cohen, was the attorney providing privileged advice in question. In that case, Cohen would have been playing the press contact role he often did during the campaign.

Still, just because Cohen was not playing the role of an attorney during most of the activities the FBI is interested in doesn’t mean the FBI won’t be really careful to make sure they don’t violate privilege, and I’m sure they’ll still use a taint team.

Mueller has already dealt with (at least) two sensitive attorney-client relationships in his investigation

Even on top of the eight members of the White House Counsel’s office who have spoken with the Special Counsel, Mueller’s team has dealt with (at least) two other sensitive attorney-client relationships.

The first was Melissa Laurenza, a lawyer for Paul Manafort whom he had write false declarations for FARA registry. Judge Amy Berman Jackson permitted Mueller’s team to ask her seven of eight proposed question after proving Manafort had used her services to engage in fraud.

More recently, we’ve gotten hints — but only hints — of what must be extensive cooperation from Skadden Arps and its partner Greg Craig, describing how Manafort and Gates laundered money to pay the firm loads of money to write a report they hoped would exonerate Ukraine’s persecution of Yulia Tymoshenko. While the cooperation of Skadden itself was probably effusive in its voluntary nature (the firm seems determined to avoid the taint that Tony Podesta’s firm has acquired in this process), Mueller did subpoena Alex Van der Zwaan and it’s unclear what methods the FBI used to obtain some of the materials he tried to hide from prosecutors.

Neither of those exchanges involves a search warrant. But they do show that Mueller is willing to take on the tricky issue of attorney testimony first-hand. Using SDNY as a clean team still may be the easiest option in the Cohen case, but Mueller clearly isn’t shying away from managing all such issues in-house in other cases.

The other possible explanations for the Access Hollywood search and the October 7 timing

Which brings us finally to the other possibilities behind the Access Hollywood search.

It’s certainly possible that the coincidental release of all these things was coordination, entirely orchestrated by the Trump campaign. But there are a number of reasons — on top of the fact that Mueller isn’t keeping this search far tighter under his own control — I think that’s not the most likely explanation.

Consider this story, arguing that the real story of Access Hollywood isn’t that it leaked on October 7 — the piece notes that David Farenthold had only received it that day — but that it didn’t leak earlier in the process, when it might have led Trump to lose the primary.

t is just impossible to believe that the tape not coming out at the start of Trump’s campaign, when logic dictates that it would have blown Trump instantly out of the water (before he was in a position where Republicans had no choice other than to keep backing him against the evil Hillary Clinton), was anything but a highly unethical political decision by someone at NBC. The fact that no one has ever even gotten an answer from NBC about how this could have happened is equally unfathomable and yet, given the news media’s overall incompetence, kind of expected.

[snip]

It has always struck me as EXTREMELY odd that it was the Washington Post, not NBC, who first released the tape on Friday Oct. 7, 2016, barely beating NBC which, it should be noted, was clearly ready to go with it immediately after the Post did. I presumed that perhaps NBC wanted this to be the case because it might take some of the focus off why they had not released it during the primaries (and thus chose not to prematurely kill off the media’s Golden Goose which was Trump’s ratings-friendly campaign).

However, there is another aspect of the Post being the outlet which got the big scoop that has always struck me as potentially very significant. The Post’s reporter, David Fahrenthold, has said that he was only made aware of the tape, via an unnamed source, THAT day — which is a clear indication that whomever was trying to get the Post to release it had decided to do so in tremendous haste. After all, if the source had planned it sooner they would have made contact with Fahrenthold well before then because he might have been out of pocket that day.

[snip]

For instance, what if it was actually someone from the TRUMP team who leaked the tape. At first glance, this seems ludicrous because no one thought that Trump would be anything but greatly harmed by the tape (though he clearly was not). But what if someone in Trump World got wind that the tape was about to be released and decided that stepping all over the Russia news (which would normally have dominated the narrative for the remainder of the campaign) would at least create the least bad outcome for them?

I don’t agree that the release was released when it was to distract from the Russia announcement that day. As I’ve long noted, in reality, the Access Hollywood distracted from the Podesta emails, effectively burying the most damning release in the bunch, the excerpts of Hillary’s speeches that even Democrats had been demanding she release since the primary. And while the Trump team might claim they didn’t control the release of the Podesta emails directly — and Roger Stone’s predictions that Wikileaks would release Clinton Foundation rather than Podesta emails were dead wrong — the Trump team at least knew something was coming (indeed, Wikileaks had made that clear themselves). So there’s little reason they would stomp on what they had long welcomed with the Access Hollywood tape. As this post alludes, I also think the Trump team and Russians or Wikileaks may have been squabbling over whether Wikileaks would release possibly faked Clinton Foundation emails that week, only to scramble when Wikileaks refused to release whatever the Peter Smith effort had gotten dealt to them.

Like the Mediate piece, I’m interested in the way that Steve Bannon had Clinton accusers all lined up to go that weekend (indeed, I noted how quickly Stone moved to that after having raised expectations for a Clinton Foundation release). But I also think there are some reasons to believe that attack was in the works for other reasons (though I agree it might reflect advance knowledge that the video might come out, or even that Stormy Daniels might come forward).  Finally, I don’t think the release came from Trump because of all the reports of Republicans trying to convince Trump to step down (though it’s possible the GOP dropped the video in one last bid to get him to do so).

One alternative narrative, then, is that the real story about the Access Hollywood suppression goes back months or years earlier, as one of the things Trump managed to suppress throughout the campaign, but something happened internally to breach that agreement. And, separately, that either Assange by himself, with Russian help, or with Trump assistance, timed the Podesta emails to come out as the Russian attribution was coming out. That is, it could be that the real story remains that whoever orchestrated the Wikileaks release did so in an attempt to bury the Russian attribution, but that the coincidental release of the Access Hollywood video in turn buried the Podesta emails.

Finally, it’s possible that Democrats got ahold of the Access Hollywood video and they released it to (successfully) drown out the Podesta emails, which they (and the intelligence community) also would have known were coming, but by doing so, they also drowned out the all-important Russian attribution in the process.

The point is, we don’t know. And nothing we know thus far about the process leading to this warrant or about the suppression and release of either the video or the women’s stories suggest it all took place that week of October. Trump’s usual m.o. is about suppression, not timing.

That said, I’m curious if this raid will reveal details about one other item Trump probably tried to suppress: the nude Melania photos that NYPost released on July 31, 2016, just as campaign season got going in earnest.

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Manafort Wants DOJ to Return Some of the Information Seized in His [Condo*] Search

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Paul Manafort has submitted two motions to suppress information collected pursuant to two warrants. The first, to suppress the fruits of a May 27, 2017 search of a storage facility in Alexandria, was submitted in timely fashion on April 6. The second, to suppress the fruits of the widely publicized no-knock search of his Alexandria condo on July 27, 2017 [note, Mueller filings make clear it was not a no-knock search], was submitted late, though Judge Amy Jackson Berman let him do so even though he only asked permission to do so hours before the deadline.

While I don’t think these motions, particularly as submitted, will succeed, I think they’re interesting because in addition to seeking to suppress evidence in the ConFraudUs prosecution he has already been charged with, appears to seek to suppress any evidence obtained relating to the election tampering conspiracy.

The storage unit search feeds the base but misrepresents the facts

For reasons I don’t understand, Manafort has argued these two motions in nested fashion. He argues the storage unit search was improper and collected data outside the scope of the warrant, meaning any fruit of that search should also be suppressed (though that may aim to suppress other searches not at issue here).

The storage unit search is one that online conspirators have talked a lot about, suggesting the search was done pursuant to FISA order, or in other ways done improperly. So by seeking to suppress this search, Manafort is doing what is expected of him by Trump’s frothy base.

That said, the motion itself makes a number of claims that the exhibits submitted to support the motion don’t support. The motion argues that:

  • The person who voluntarily let the FBI into the storage unit, Alexander Trusko, was a former employee (and may not have been acting voluntarily), and so no longer entitled entry to the storage unit
  • That person was otherwise not authorized to have access to the storage unit
  • The FBI took virtually everything in the storage unit

That’s not backed by the exhibits. For example, the affidavit notes that, while Trusko showed the FBI the storage facility was a former employee of Davis Manafort (the allegation in the motion), he was still an employee of Paul Manafort, just another company Manafort ran.

On May 26, 2017, your Affiant met with [redacted], a former employee of Davis Manafort Partners, and a current employee of Steam Mountain, LLC, which is a business currently operated by Paul Manafort. [redacted] advised that he is a salaried employee of Manafort’s company, and that he performs a variety of functions for Manafort and his companies as directed by Manafort.

The storage facility lease clearly shows Trusko to be the occupant, with Rick Gates listed as an alternate contact and Manafort just as an Authorized Access Person.

Manafort’s going to have a tough time arguing that the person on the lease is not a person with the authority to enter the facility.

Finally, the FBI agent who did the search counted “approximately 21 bankers’ boxes that could contain documents, as well as a five-drawer metal filing cabinet.” But the return of the search warrant appears to show just nine boxes of documents, meaning the FBI took just a fraction of what was in the storage unit.

While this application asks for records on the Podesta Group (but not, curiously, Vin Weber or his Mercury group, the other lobbying company Manafort got to work for the Party of Regions), it doesn’t ask for anything specifically related to the election conspiracy.

Even before you consider the fact that FBI got this warrant without hiding any of the details that Manafort claims makes the search suspect, those claims seem misleading at best. This motion is almost certainly going nowhere, except to feed the frothing conspiracists.

The condo search focuses on the Ukraine crimes but asks for June 9 meeting materials

I’m more interested in the motion to suppress the condo search and its fruits.

As a threshold matter, between May and July 2017, the scope of crimes being investigated mushroomed, to include both the fraudulent loans obtained during the election and afterwards, as well as foreign national contributions to an election, with a broad conspiracy charge built in.

Compare the list of crimes in the storage unit affidavit:

  • 31 USC 5314, 5322 (failure to file a report of foreign bank and financial amounts)
  • 22 USC 618 (Violation of FARA)
  • 26 USC 7206(a) (filing a false tax return)

With the list in the residence affidavit:

  • 31 USC 5314, 5322
  • 22 USC 611 et seq (a broader invocation of FARA)
  • 26 USC 7206
  • 18 USC 1014 (fraud in connection with the extension of credit)
  • 18 USC 1341, 1343, 1349 (mail fraud and conspiracy to commit mail fraud)
  • 18 USC 1956 and 1957 (money laundering)
  • 52 USC 30121 (foreign national contributions to an election)
  • 18 USC 371 and 372 (conspiracy to defraud the US, aiding and abetting, and attempt to commit such offenses)

So this motion to suppress would suppress both evidence used to prosecute Manafort in the EDVA case, as well as the eventual hack-and-leak conspiracy.

And in addition to records on Manafort, Gates’, and (another addition from the storage unit warrant), the warrant permits the seizure of records tied to the June 9 meeting and Manafort’s state of mind during all the enumerated crimes (but that bullet appears right after the June 9 meeting one).

It also includes an authorization to take anything relating to Manafort’s work for the foreign governments, including but not limited to the Ukrainians that have already been charged, which would seem to be a catchall that would cover any broader conspiracies with Russia.

This makes sense. The June 9 story broke in July 2017 based off documents that Jared Kushner and Manafort had provided to Congress in June — though I do wonder whether there were any records relating to the meeting in the storage unit.

To be fair, this motion is not much stronger than the first one. Manafort doesn’t even present as much reason to throw out this search as he did for the storage unit. He basically just argues the warrant is overbroad, agents exceeded the scope of it, and DOJ improperly has held on to things not covered by the scope of the warrant. He does claim the warrant doesn’t incorporate the affidavit that lays out what can be searched, which I don’t understand because the application does say to refer to the affidavit. Curiously, while in the aftermath of the search, stories reported that the search had improperly seized privileged materials, he doesn’t complain about that in this motion (the docketed materials make it clear that FBI separated out any potentially privileged materials).

That said, I think some of the claim that the warrant was overbroad will need a careful response.

Three specific complaints may suggest what Manafort’s really worried about

Amid the larger argument about overbroad search, Manafort says several things that I find of particular interest. For example, the motion complains that by asking for Manafort’s “state of mind” (either specifically as it relates to the June 9 meeting more broadly).

a warrant directing agents to seize all evidence of the subject’s “state of mind” does not restrict the agent’s discretion at all. Indeed, the warrant may just as well have told agents to search for and seize any evidence that the subject committed the subject offenses – all of which require knowledge and intent.

It seems DOJ may have more specific concerns about Manafort’s state of mind when dealing with Russians, because it goes to his many mixed motivations tying to the election.

Then, Manafort argues, curiously, that the FBI took devices that could not conceivably include evidence like some iPods.

For example, the search warrant inventory of electronic devices seized or imaged includes things such as an Apple iPod music device and some Apple iPod Touch music and video devices.

Except that’s not right: you can use Signal on iPods, so these might have stored communication. Which would be precisely the kind of thing that would be of most interest: devices that could be used for encrypted comms that would not show up on cell records.

Finally, Manafort complains, at length, that DOJ hasn’t given any of this back.

To date, the government has not represented that the materials seized were subject to any process or procedure to insure the government only retained materials within the scope of the search warrant. The government has only represented that the materials have been subject to a privilege review. The government is required to review seized materials and “identify and return those materials not covered by the warrant.”

They do so citing longer periods of review, so it’s unlikely this complaint will go anywhere.

But as I’ve said, Manafort has a great incentive, in his likely futile suppression motions, to try to force DOJ to cough up more information about the case in chief. And by demanding that DOJ start giving stuff back, he may force them to show what they consider valuable or at least still can’t make sense of.

Ultimately, this suppression motion may be more about trying to prevent the government from keeping stuff supporting even more charges while it pursues the two classes of charged crimes and the soon to be charged crimes named in the affidavit.

bmaz was proved fucking right

Finally, just to prove that bmaz was right all along, I’ll note that this search warrant permits the FBI to take things relating to Manafort’s wife Kathleen.

bmaz has long been wondering why DOJ didn’t also charge her, which might provide more leverage to get Manafort to flip than charging Gates would. References in the affidavit to them reorganizing their lives suggests Kathleen might not have been as persuasive as she once would have been.

*Update: In Mueller’s response to this, they make it clear this was not a no-knock warrant, and I’ve corrected the title accordingly.

The warrant application had not sought permission to enter without knocking. In issuing the warrant, the magistrate judge authorized the government to execute the warrant any day through August 8, 2017, and to conduct the search “in the daytime [from] 6:00 a.m. to 10:00 p.m.” Doc. 264-1 at 1. The government complied fully with those date and time conditions, and Manafort does not contend otherwise.

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Why Are Republicans Still Squealing about FISA Applications If HPSCI Report Cedes Carter Page Concerns?

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Republicans in Congress continue to make fairly breath-taking demands on Rod Rosenstein and Christopher Wray in what seems to be an attempt to create a bogus claim of non-responsiveness that Trump can use to fire one or both of them.

First there was the demand that the House Intelligence Committee get all of FBI’s non-grand jury records on the Mueller investigation, a demand Paul Ryan backed. Then there was the push to publish the Nunes memo over DOJ’s objections. More recently, after Wray’s doubling the number of FBI staffers (to 54) in an attempt to meet a Bob Goodlatte document deadline for FISA, Hillary investigation, and McCabe firing materials proved insufficient, Jeff Sessions has put Chicago’s US Attorney, John Lausch, in charge of the response. As with Sessions’ selection of Utah US Attorney John Huber to review other GOP demands, Sessions seems to be giving himself and his deputies cover from fairly ridiculous GOP demands.

Nevertheless, such concessions have not entirely sheltered Trump’s main targets from the kinds of complaints that might expose Robert Mueller’s investigation below them. Mark Meadows, one of the lead attack dogs in this congressional obstruction effort, even suggested Congress might impeach Rosenstein for failing to meet a 2-week deadline on a Bob Goodlatte subpoena.

Through it all, the complaints that FBI used the Steele dossier as one piece of evidence in Carter Page’s FISA application, persist. This, in spite of the fact that Page had been under FISA surveillance years before, and in spite of the fact that all sides agree that the counterintelligence investigation into Trump’s aides started in response to the George Papadopoulos tip from Australia.

This, in spite of the passage from the Schiff memo (including one redacted sentence) that seems to assert that FBI considered Page an on-going counterintelligence concern.

DOJ cited multiple sources to support the case for surveillance Page — but made only narrow use of information from Steele’s sources about Page’s specific activities in 2016, chiefly his suspected July 2016 meetings in Moscow with Russian officials. [entire short sentence redacted] In fact, the FBI interviewed Page in March 2016 about his contact with Russian intelligence, the very month candidate Donald Trump named hi a foreign policy advisor.

And the Schiff memo is consistent with what Sheldon Whitehouse (among the few other people who had read the application at the time) said.

Whitehouse: I’ve got to be careful because some of this is still classified. But the conclusion that I’ve reached is that there was abundant evidence outside of the Steele dossier that would have provoked any responsible FBI with a counterintelligence concern to look at whether Carter Page was an undisclosed foreign agent. And to this day the FBI continues to assert that he was a undisclosed Russian foreign agent.

Importantly, however, it’s no longer just former prosecutors in the Democratic party who seem to confirm that Page was a real counterintelligence concern, and therefore legitimately a FISA target. At least, that’s what these two passages from the GOP House Intelligence Report suggest.

If you’re complaining that the Intelligence Community didn’t inform Trump about that members of his campaign team were “assessed to be potential counterintelligence concerns,” (and this likely includes Paul Manafort, as well as Page), then you can’t very well complain if FBI obtained a FISA warrant once those counterintelligence concerns left the campaign team. Hell, you’re practically inviting the FBI to obtain such a warrant while the counterintelligence concern is on the campaign, to help warn the candidate.

I know this is a bit to ask, but the GOP should not be able to have it both ways, to try to discredit the Trump investigation by pointing to the use of the Steele dossier in targeting Page, even while demanding FBI should have shared what it knew about Page because he posed a risk to Trump.

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There Are Almost Certainly Other DAG Rosenstein Memos

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As I noted in this post, Robert Mueller’s team of “Attorneys for the United States of America” responded to Paul Manafort’s claim that Rod Rosenstein’s grant of authority to the Special Counsel did not extend to the money laundering he is currently being prosecuted for by revealing an August 2, 2017 memo from Rosenstein authorizing Mueller to investigate, along with a bunch of redacted stuff,

Allegations that Paul Manafort:

  • Committed a crime or crimes by colluding with Russian government officials with respect to the Russian government’s efforts to interfere with the 2016 election for President of the United States, in violation of United States law;
  • Committed a crime or crimes arising out of payments he received from the Ukrainian government before and during the tenure of President Viktor Yanukovych.

As the filing notes, this memo has not been revealed before, neither to us nor to Manafort.

That’s all very interesting (and has the DC press corps running around claiming this is a big scoop, when it is instead predictable). More interesting, however, is the date, which strongly suggests that there are more of these memos out there.

Mueller is unlikely to have waited two and a half months to memorialize his scope

I say that, first of all, because Rosenstein wrote the August 2 memo two and a half months after he appointed Mueller. Given Trump’s raging attacks on the investigation, it’d be imprudent not to get memorialization of the scope of the investigation at each step. Indeed, as I’ve noted, in the filing Mueller points to the Libby precedent, arguing that this memo “has the same legal significance” as the two memos Jim Comey used to (publicly) memorialize the scope of Patrick Fitzgerald’s investigation.

The August 2 Scope Memorandum is precisely the type of material that has previously been considered in evaluating a Special Counsel’s jurisdiction. United States v. Libby, 429 F. Supp. 2d 27 (D.D.C. 2006), involved a statutory and constitutional challenge to the authority of a Special Counsel who was appointed outside the framework of 28 C.F.R. Part 600. In rejecting that challenge, Judge Walton considered similar materials that defined the scope of the Special Counsel’s authority. See id. at 28-29, 31-32, 39 (considering the Acting Attorney General’s letter of appointment and clarification of jurisdiction as “concrete evidence * * * that delineates the Special Counsel’s authority,” and “conclud[ing] that the Special Counsel’s delegated authority is described within the four corners of the December 30, 2003 and February 6, 2004 letters”). The August 2 Scope Memorandum has the same legal significance as the original Appointment Order on the question of scope.

The first of those Comey letters, dated December 30, 2003, authorized Fitz to investigate the leak of Valerie Plame’s identity. The second of those, dated February 6, 2004, memorialized that Fitz could also investigate,

federal crimes committed in the course of, and with intent to interfere with, your investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses; to conduct appeals arising out of the matter being investigated and/or prosecuted; and to pursue administrative remedies and civil sanctions (such as civil contempt) that are within the Attorney General’s authority to impose or pursue.

It’s the second memo that memorialized Fitz’ authority to prosecute Scooter Libby for protecting Dick Cheney’s role in outing Valerie Plame.

Mueller, then the acting FBI Director, would presumably have been in the loop of the Fitz investigation (as Christopher Wray is in Mueller’s) and would have known how these two letters proceeded. So it would stand to reason he’d ask for a memo from the start, particularly given that the investigation already included multiple known targets and that Trump is even more hostile to this investigation than George Bush and Dick Cheney were to Fitz’s.

Admittedly, unlike the Comey memo, which was designed for public release, there’s no obvious, unredacted reference to a prior memo. Though something that might imply a prior memo is redacted at the top of the released memo (though this is probably a classification marking).

And, given that this memo was designed to be secret, Rosenstein may have written the memo to obscure whether there are prior ones and if so how many.

The memo closely follows two key dates

That said, the date of the memo, August 2, is mighty curious. It is six days after the July 27 Papadopoulos arrest at Dulles airport. And seven days after the July 26 no knock search of Paul Manafort’s Alexandria home.

That timing might suggest any of several things. It’s certainly possible (though unlikely) the timing is unrelated.

It’s possible that Rosenstein wrote the memo to ensure those two recent steps were covered by his grant. That wouldn’t mean that the search and arrest wouldn’t have been authorized. The memo itself notes that Mueller would be obliged to inform Rosenstein before each major investigative step.

The Special Counsel has an explicit notification obligation to the Attorney General: he “shall notify the Attorney General of events in the course of his or her investigation in conformity with the Departmental guidelines with respect to Urgent Reports.” 28 C.F.R. § 600.8(b). Those reports cover “[m]ajor developments in significant investigations and litigation,” which may include commencing an investigation; filing criminal charges; executing a search warrant; interviewing an important witness; and arresting a defendant.

Both Papadopoulos’ arrest and that dramatic search would fit this criteria. So it’s virtually certain Rosenstein reviewed Urgent Memos on both these events before they happened. Plus, his memo makes it clear that the allegations included in his memo “were within the scope of the Investigation at the time of your appointment and are within the scope of the Order,” meaning that the inclusion of them in the memo would retroactively authorize any activities that had already taken place, such as the collection of evidence at Manafort’s home outside the scope of the election inquiry.

As I noted, the memo also asserts that Special Counsels’ investigative authority, generally, extends to investigating obstruction and crimes the prosecutor might use to flip witnesses.

The filing is perhaps most interesting for the other authorities casually asserted, which are not necessarily directly relevant in this prosecution, but are for others. First, Mueller includes this footnote, making it clear his authority includes obstruction, including witness tampering.

The Special Counsel also has “the authority to investigate and prosecute federal crimes committed in the course of, and with intent to interfere with, the Special Counsel’s investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses” and has the authority “to conduct appeals arising out of the matter being investigated and/or prosecuted.” 28 C.F.R. § 600.4(a). Those authorities are not at issue here.

Those authorities are not at issue here, but they are for the Flynn, Papadopoulos, Gates, and Van der Zwaan prosecutions, and for any obstruction the White House has been engaging in. But because it is relevant for the Gates and Van der Zwaan prosecutions, that mention should preempt any Manafort attempt to discredit their pleas for the way they expose him.

The filing includes a quotation from DOJ’s discussion of special counsels making it clear that it’s normal to investigate crimes that might lead someone to flip.

[I]n deciding when additional jurisdiction is needed, the Special Counsel can draw guidance from the Department’s discussion accompanying the issuance of the Special Counsel regulations. That discussion illustrated the type of “adjustments to jurisdiction” that fall within Section 600.4(b). “For example,” the discussion stated, “a Special Counsel assigned responsibility for an alleged false statement about a government program may request additional jurisdiction to investigate allegations of misconduct with respect to the administration of that program; [or] a Special Counsel may conclude that investigating otherwise unrelated allegations against a central witness in the matter is necessary to obtain cooperation.”

That one is technically relevant here — one thing Mueller is doing with the Manafort prosecution (and successfully did with the Gates one) is to flip witnesses against Trump. But it also makes it clear that Mueller could do so more generally.

Mueller used the false statements charges against Papadopoulos to flip him. He surely hopes to use the money laundering charges against Manafort to flip him, too. Both issues may have been at issue in any memo written to newly cover the events of late July.

Mueller may not have revealed the scope of the Manafort investigation at that time

Now consider this detail: the second bullet describing the extent of the investigation into Manafort has a semi-colon, not a period.

It’s possible Mueller used semi-colons after all these bullets (of which Manafort’s is the second or third entry). But that, plus the resumption of the redaction without a double space suggests there may be another bulleted allegation in the Manafort allegation.

There are two other (known) things that might merit a special bullet. First, while it would seem to fall under the general election collusion bullet, Rosenstein may have included a bullet describing collusion with Aras Agalarov and friends in the wake of learning about the June 9 Trump Tower meeting with his employees. More likely, Rosenstein may have included a bullet specifically authorizing an investigation of Manafort’s ties with Oleg Deripaska and Konstantin Kilimnik.

The Mueller memo actually includes a specific reference to that, which as I’ve noted I will return to.

Open-source reporting also has described business arrangements between Manafort and “a Russian oligarch, Oleg Deripaska, a close ally of President Vladimir V. Putin.”

The latter might be of particular import, given that we know a bunch of fall 2017 interviews focused on Manafort’s ties to Deripaska and the ongoing cover-up with Kilimnik regarding the Skadden Arps report on the Yulia Tymoshenko prosecution.

All of which is to say that this memo may reflect a new expansion of the Manafort investigation, perhaps pursuant to whatever the FBI discovered in that raid on Manafort’s home. If so, that should be apparent to him, as he and his lawyers know what was seized.

Still, I wouldn’t be surprised if he inquired about what authorized that July 26 raid, if for no other reason than to sustain his effort to make more information on Mueller’s investigation public.

The redactions almost certainly hide two expansions to the investigation as it existed in October 2016

Now let’s turn to what else (besides another possible Manafort bullet) the redactions might show, and what may have been added since.

The unredacted description of the Manafort investigation takes up very roughly about one fifth of the section describing allegations Mueller was pursuing.

The Schiff Memo revealed that DOJ had sub-investigations into four individuals in October 2016.

Endnote 7 made it clear that, in addition to Page, this included Flynn and Papadopoulos, probably not Rick Gates, and one other person, possibly Roger Stone.

In August 2017, all four of those would have been included in a Rosenstein memo, possibly with a bullet dedicated to Gates alone added. That said, not all of these would require two or more bullets (and therefore as much space as the Manafort description). Papadopoulos’ description might include two, one dedicated to the collusion and one to the lying about collusion, or just one encompassing both the collusion and the lying. Flynn’s might include three, one dedicated to the collusion, one to the lying about it, and one to the unregistered foreign agent work, including with Turkey, that we know Mueller to have been investigating; or, as with Papadopoulos, the lying about the collusion might be incorporated into that bullet. Stone’s bullet would likely have only reflected the collusion, an investigation that is currently very active. Carter Page’s suspected role as a foreign agent might be one bullet or two.

That suggests, though doesn’t confirm, that there are a few other things included in those redacted bullets, things not included in the investigation in October 2016 as reflected in the Schiff memo.

Indeed, we should expect two more things to be included in the bullet points: First, the name of any suspect, including the President, associated with the obstruction of justice. Rosenstein himself had already been interviewed with respect to that aspect of the investigation by August 2, so surely Rosenstein had already authorized that aspect of the investigation.

The redactions most likely also include the names of Don Jr and Jared Kushner (and Paul Manafort), for their suspected collusion with Russia as reflected in the June 9 meeting. At least according to public reporting, Mueller may have first learned of this in June when Manafort and Kushner confirmed it in turning over evidence to Congress and Mueller. The first revelations that Mueller was obtaining subpoenas from a dedicated grand jury were on August 3, just one day after this memo. That same day, reports described Mueller issuing subpoenas related to the June 9 meeting.

Indeed, it’s quite possible Rosenstein issued this memo to memorialize the inclusion of the President’s spawn among the suspects of the investigation.

Rosenstein has almost certainly updated this memo since August 2

All that said, there’s not enough redacted space to include the known expanded current scope of the investigation, and given that the newly expanded scope gets closer to the President, Rosenstein has surely issued an update to this memo since then. These things are all definitively included in the current scope of the investigation and might warrant special mention in any update to Rosenstein’s authorizing memo:

Many of these — particularly the ones that affect only Russians — might be included under a generic “collusion with Russia” bullet. The closer scrutiny on Jared, however, surely would get an update, as would any special focus on the Attorney General.

More importantly, to the extent Mueller really is investigating Trump’s business interests (whether that investigation is limited just to Russian business, or more broadly) — the red line the NYT helpfully set for the President — that would necessarily be included in the most up-to-date memo authorizing Mueller’s activities. There is no way Mueller would take actions involving the President personally without having the authorization to do so in writing.

Which is why we can be virtually certain the August 2 memo is not the last memo Rosenstein has written to authorize Mueller’s actions.

Mind you, Mueller probably wouldn’t want to release a memo with several pages of redacted allegations. Which may be why we’re looking at the redacted version of an almost certainly superseded memo.

Updated: Later today Mueller’s team asked to file a copy of an exhibit–which given Judge Berman Jackson’s description of it as released in redacted form, has to be the Rosenstein memo–under seal. Which suggests they’re going to show Manafort what else they’re investigating (which I bet is the Deripaska stuff).

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The Papadopoulos Interfax Interview and Another Syria Data Point

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The other day, the WaPo had a story reviewing the larger role in the Trump campaign George Papadopoulos had than the Trump folks admit. Much of this work has appeared elsewhere, but I’m particularly interested in the WaPo’s account of the direction Deputy Comms Director Brian Lanza gave to George Papadopoulos regarding an Interfax interview he would do. He emphasized that the campaign wanted the message that it wanted a partnership with Russia on Syria.

When a Russian news agency reached out to George Papadopoulos to request an interview shortly before the 2016 election, the young adviser to then-
candidate Donald Trump made sure to seek approval from campaign headquarters.

“You should do it,” deputy communications director Bryan Lanza urged Papadopoulos in a September 2016 email, emphasizing the benefits of a U.S. “partnership with Russia.”

[snip]

“Received a request from Interfax Russian News Agency with Ksenia Baygarova on U.S.-Russia ties under a President Trump. What do you think?” he wrote to Lanza on Sept. 9, 2016. “If the campaign wants me to do it, can answer similar to the answers I gave in April while in Israel.”

Lanza gave the go-ahead, citing the conflict in Syria as a reason to work with the Russians. Papadopoulos then offered to send the campaign a copy of the interview after it was published.

“You’re the best. Thank you!” Lanza responded.

Lanza declined to comment.

In the interview, published Sept. 30, 2016, Papadopoulos told the Russian media outlet that Trump had been “open about his willingness to usher in a new chapter in U.S.-Russia ties,” specifically citing the need for cooperation in Syria.

As WaPo notes, the resulting interview is one Papadopoulos made sure Ivan Timofeev Joseph Mifsud saw, in what may be part of a signaling process to Russia on Trump policy questions. In it, Papadopoulos specifically came out against regime change, one of the US policies Putin especially loathes.

Q.: Do you share the opinion that the Assad regime should be immediately removed from power in Syria?

A.: We do not support aggressive changes of regimes anywhere including Syria. Look what had happened in Lybia and Iraq. We all remember this. However, it does not mean that we support Assad either.

Syria was key in other signaling — and in Jared’s top policy priorities immediately after the election.

The focus on Syria is key: remember that Jared Kushner explained his request to Sergei Kislyak for a Russian-run secure back challenge as an effort to cooperate on Syria.

The Ambassador expressed similar sentiments about relations, and then said he especially wanted to address U.S. policy in Syria, and that he wanted to convey information from what he called his “generals.” He said he wanted to provide information that would help inform the new administration. He said the generals could not easily come to the U.S. to convey this information and he asked if there was a secure line in the transition office to conduct a conversation. General Flynn or I explained that there were no such lines. I believed developing a thoughtful approach on Syria was a very high priority given the ongoing humanitarian crisis, and I asked if they had an existing communications channel at his embassy we could use where they would be comfortable transmitting the information they wanted to relay to General Flynn.

So it’s possible the attacks on Hillary’s Syria policy were a signal — as the earlier speech’s call for engagement with Russia apparently was — to Timofeev.

The Papadopoulos interview was published on September 30, just 11 days before Don Jr. flew to Paris to meet with some pro-Russian Syrians.

One meeting that Donald Trump Jr. has not fully explained is a speech in Paris on October 11, 2016, just weeks before the election.

In his capacity as a key member of the Trump campaign, Trump Jr. spoke at the meeting at the request of a French think tank, The Center of Political and Foreign Affairs. Trump Jr. was likely paid about $50,000 for the speech, according to the speaking fees listed by talent booking agency that represents him.

The CFPR has a reputation in the French press as being “openly connected to the Russians.” It is difficult, however, to track just how connected they are, as France does not require it’s nonprofit organizations to disclose their finances.

The founders of the center have worked closely with the Russian government to end the conflict in Syria and in 2016, nominated Russian President Vladimir for the Nobel Peace Prize. The center’s director, Fabien Baussart, has been described as “a former lobbyist for Russian oligarchs in France.” He cited Putin’s “peace-making efforts” as reason for his nomination. One of the founders, Baussart’s wife Randa Kassis, heads a political party called the Movement for a Pluralistic Society, which is in part endorsed by Russia in support of Syrian president Bashar al-Asssad.

Now we know, then, that even at the level of flacks, the emphasis in this period was on publicizing (to Russians, in a Russian outlet) the Trump willingness to work together on Syria, and specifically to depart from US efforts to remove Assad.

Update, May 24, 2019: Corrected Mifsud for Timofeev error.

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The Daily Beast Guccifer Scoop and Those GRU Officers Sanctioned Last Week

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The Daily Beast has a story reporting (in addition to the already reported news that the DNC hack got moved under Robert Mueller) that the person behind the Guccifer 2.0 persona “slipped up” once and failed to use the VPN hiding his location in the GRU headquarters in Moscow.

[O]n one occasion, The Daily Beast has learned, Guccifer failed to activate the VPN client before logging on. As a result, he left a real, Moscow-based Internet Protocol address in the server logs of an American social media company, according to a source familiar with the government’s Guccifer investigation.

The US identified which particular officer was behind the Guccifer persona.

Working off the IP address, U.S. investigators identified Guccifer 2.0 as a particular GRU officer working out of the agency’s headquarters on Grizodubovoy Street in Moscow.

And then, according to TDB, the Guccifer persona was handed off to a more experienced GRU officer, with better English skills.

Sometime after its hasty launch, the Guccifer persona was handed off to a more experienced GRU officer, according to a source familiar with the matter. The timing of that handoff is unclear, but Guccifer 2.0’s last blog post, from Jan. 12, 2017, evinced a far greater command of English that the persona’s earlier efforts.

TDB’s sources did not reveal the name of the officer identified from the VPN “slip up.”

The Daily Beast’s sources did not disclose which particular officer worked as Guccifer.

But we may already know the name or names of the GRU officers involved. As I noted last week, Treasury added two names to the list of GRU officers sanctioned in conjunction with the DNC hack: Sergei Afanasyev and Grigoriy Viktorovich Molchanov. Both would actually be (very) experienced officers — they are 55 and 62. And both include very interesting “as of” dates identifying the last point when our intelligence officials identified their positions: February 2017 and April 2016, respectively.

The latter is of particular interest, as it came during the period when Guccifer 2.0 was setting up his infrastructure. But the government doesn’t know a ton about this guy — they know his birth year, but not his birth date, and possibly not even his passport information.

In any case, last week, the government revealed two new people it blames (and therefore sanctioned) for the DNC hack.

As TDB notes, the revelation that the government has tied Guccifer 2.0 to a known GRU officer is utterly damning for Roger Stone, who has admitted talking to him. But they don’t lay out how squirrelly Stone was in early March when trying to deny he was in trouble for his dalliances with Guccifer 2.0 and Wikileaks, which I laid out here.

In his response he does the following:

  • Raises doubts that he was actually talking to Guccifer 2.0 (even though Guccifer 2.0’s only identity was virtual, so Stone’s online interactions with any entity running the Guccifer Twitter account would by definition be communication with Guccifer 2.0)
  • Repeats his earlier doubts that Guccifer 2.0 is a Russian operative
  • Emphasizes that he couldn’t have couldn’t have been involved in any hack of the DNC Guccifer 2.0 had done because he first spoke to him six weeks after the email release (in reality, he was speaking to him three weeks after the Wikileaks release)
  • Admits he once believed Guccifer 2.0 did the hack but (pointing to the Bill Binney analysis, and giving it a slightly different focus than he had in September) claims he no longer believes that
  • Invents something about a WaPo report that’s not true, thereby shifting the focus to receiving documents (as opposed to, say, information)
  • Denies he received documents from anyone but not that he saw documents (other than the Wikileaks ones) before they were released

This denial stops well short of explaining why he reached out to Guccifer. And it does nothing to change the record — one backed by his own writing — that Stone reached out because he believed Guccifer, whoever he might be, had hacked the DNC.

At the time Stone reached out to Guccifer (as I pointed out, he misrepresented the timing of this somewhat in his testimony), he believed Guccifer had violated the law by hacking the DNC.

He never does explain to Todd why he did reach out.

Guccifer 2.0 never comes back in the remainder of the interview.

Just weeks ago, when his buddy Sam Nunberg was giving (potentially immunized) testimony to the grand jury, Stone was really really squirrelly about whether his conversations with Guccifer 2.0 put him at legal jeopardy. The confirmation of the GRU tie may provide one reason why he’s so squirrelly.

Update: As Kaspersky’s Aleks Gostev notes, Treasury should know far more on Sergei Afanasyev. RT publicly described him as Deputy Chief of GRU in April 2016. And Molchanov is, at least now, head of GRU’s academy.

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Duty of Candor: The Timing of the Sessions News

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Since Jeff Sessions fired Andy McCabe Friday night and Trump started ratcheting up his attacks on Robert Mueller, few Republicans have vocally supported Mueller (Jeff Flake, Trey Gowdy, and John McCain are exceptions; all are retiring).

There was, however, this story, reporting that three sources say Jeff Sessions was not as dismissive of George Papadopoulos’ plan to reach out to Russians as JD Gordon has claimed.

Three people who attended the March campaign meeting told Reuters they gave their version of events to FBI agents or congressional investigators probing Russian interference in the 2016 election. Although the accounts they provided to Reuters differed in certain respects, all three, who declined to be identified, said Sessions had expressed no objections to Papadopoulos’ idea.

One person said Sessions was courteous to Papadopoulos and said something to the effect of “okay, interesting.”

The other two recalled a similar response.

“It was almost like, ‘Well, thank you and let’s move on to the next person,’” one said.

As the story notes, this conflicts with Jeff Sessions’ November 14 sworn testimony to the House Judiciary Committee.

So in the wake of the Attorney General firing McCabe for violating his duty of candor, three current or former Trump associates leaked that he lied to the House.

The thing is, there can’t be that many people who these sources could be. I’m not sure the annotations from Seth Abramson (above) are all correct, but here’s what it looks like.

Sessions and Gordon are on the record stating Sessions pushed back. Trump hasn’t testified yet.

One may well be Papadopoulos.

That leaves, starting with Abramson’s guesses (here’s a later list of Trump’s national security advisors, which should round out Abramson’s):

  • Joseph Schmitz, who left his job as DOD IG amid some scandal
  • Bert Mizusawa, who is running for VA Senate and presumably wants some national help, but he is himself a lawyer
  • Jim Hoskins, who’s career military (including a lot of time working in intelligence)
  • Walid Phares, appears to still be pitching Trump’s foreign policy adventurism
  • Gary Harrell, who is career special operations
  • Charles Kubic, who even contemporaneously was raising legal concerns about such outreach (and who would be a likely candidate to have been interviewed by Mueller since he showed up in email chains raising such concerns)
  • James Carafano may be the balding man in the foreground (though he’s not in Trump’s list of advisors) — he’s still running interference for Trump’s crazy foreign policy
  • Sam Clovis, who is not identifiable in the picture, raised concerns about legal issues and NATO concerns, but elsewhere was clearly involved in the effort to reach out to Russia, even per Carter Page; he’s in the news because of the potential conflict Joe Di Genova’s reported representation of Trump poses
  • Keith Kellogg is another possible candidate; he remains part of Trump’s foreign policy team and has been interviewed
  • James Woolsey is another candidate — we know he has spoken with Mueller and has been critical of the tension between the White House, Congress, and FBI of late
  • Stephen Miller was at the meeting and interviewed with Mueller last year; I would think he would be a Sessions loyalist, though

I raise all this because, while Republicans in Congress are largely dodging the issue of protecting Mueller from Trump, some people closer to the investigation are calling Sessions on his hypocrisy. That might be far more dangerous to the Trump administration in the near term.

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Two Other Trump Tweet Innovations: “Fraudulent Activities” and “Conflicts of Interest”

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Much was made over the weekend of Trump, for the first time (though he once RTed this Tweet mentioning the special counsel), invoking Robert Mueller’s name in his Twitter rants. (As a reminder, this searchable archive of his Tweets is genius.)

But I want to look at another innovation in the Tweet. This is also the first time Trump has claimed the investigation itself is based on “fraudulent activities.” During the campaign, he once used the term “fraudulent activity” to accuse Hillary of “fraudulent activity.” And he’s a fan of the word “fraudulent,” having used it 17 times — to describe the Steele dossier, Ted Cruz’s IA victory, Obama’s claims about ObamaCare, and Liberian Ebola patient Thomas Duncan. He most often uses it to describe critical reporting or other claims (such as in advertisements) made about himself.

Then, this morning, Trump for the first time accused the Mueller investigation (this time without using Bobby Three Sticks’ name) of having “conflicts of interest,” a term Trump has actually only used in two other Tweets (one, two), both describing Hillary.

While it’s always fraught to try to understand Trump’s feverish little brain, it is fairly clear his Tweets serve as a mirror of things he’s seeing, most often, but by no means exclusively, Fox and Friends.

So I want to consider what these two innovations in his attacks on the Mueller investigation might suggest.

It may be nothing: just a reflection of his defensiveness.

It might mean his rat-fucking buddies are planning some new conspiracy theory they plan to use to try to undermine the Mueller inquiry; Roger Stone has been working the press this weekend. Or maybe it’s an old one: last summer Trump’s considered challenging Mueller’s appointment because his past history with Jim Comey amounted to a conflict.

But there’s another possibility.

In NYT’s first coverage of Trump and John Dowd’s increasing aggressiveness against Mueller, they tied it to two related events: the ongoing negotiations over a Mueller interview of Trump (which Axios claims  still focuses on the Comey and Flynn firings).

Mueller is said to have sent questions to Mr. Trump’s legal team as part of negotiations over an interview with the president. Mr. Mueller is seeking the interview, according to two people close to the White House, in order to ask follow-up questions, but put forward the list as a start.

They also tie it to (their own report) that Mueller subpoenaed the Trump Organization, which they in turn tie to increased unease among Trump’s legal team.

To keep the president at bay, the lawyers — led by the White House lawyer Ty Cobb — told him that Mr. Mueller’s investigation would be over by last December and that they would ask Mr. Mueller to put out a statement saying the president was not a target of the investigation.

But instead, Mr. Trump was livid anew this week over the Times report that Mr. Mueller had subpoenaed his corporate records, including those related to Russia, according to one person close to the White House.

The president’s lawyers appear to be feeling increasingly uneasy about where they stand. This month, Mr. Trump met with a veteran Washington lawyer, Emmet T. Flood, to discuss coming on board to take over the president’s dealings with Mr. Mueller’s office and possibly replacing Donald F. McGahn II as White House counsel. The president’s personal lawyers, Mr. Dowd and Jay Sekulow, did not know about the meeting, prompting concerns that they could be pushed aside, and potentially making them less resistant to Mr. Trump’s whims about handling the inquiry.

While the other possibilities are admittedly more likely (that is, that these two innovations reflect nothing more than Trump’s natural projection), imagine what would happen if Mueller asked Trump to account for his own conflicts and fraudulent activities, both key to his business model.

Yes, accusing Robert Mueller (or his predecessors) of committing fraudulent activities and having conflicts of interest is an attack squarely within the norm for Trump, those terms are also the perfect mirror for the President’s own business.

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The Trump Toadies Who Are Worried about Being Unmasked

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Last week, Zoe Tillman noted this FOIA lawsuit from attorney Gene Schaerr, working on behalf of someone who wants to remain anonymous “at present,” suing to obtain records on the unmasking of Trump campaign and transition officials. The thing is, Shaerr isn’t just asking for unmasking records generally.

The odd collection of people being FOIAed

He’s asking for unmasking records pertaining to a really curious group of people:

  1. Steve Bannon
  2. Rep. Lou Barletta
  3. Rep. Marsha Blackburn
  4. Florida Attorney General Pam Bondi
  5. Rep. Chris Collins
  6. Rep. Tom Marino
  7. Rebekah Mercer
  8. Steven Mnuchin
  9. Rep. Devin Nunes
  10. Reince Priebus
  11. Anthony Scaramucci
  12. Peter Thiel
  13. Donald Trump Jr.
  14. Eric Trump
  15. Ivanka Trump
  16. Jared Kushner
  17. Rep. Sean Duffy
  18. Rep. Trey Gowdy
  19. Rep. Dennis Ross
  20. Pastor Darrell C. Scott
  21. Kiron Skinner

Some of these would be obvious, of course: Trump’s spawn, Bannon, Priebus, and Mnuchin. I’m really interested to see Rebekah Mercer (especially given the more we learn on Cambridge Analytica). Mooch is there. The litigious Peter Thiel is there (making him at least a reasonable candidate to be paying for this lawsuit, except for reasons I lay out below).

Mike Flynn, the one person we know to have been unmasked, is not in there (which is particularly odd given all the efforts to find some way to unring Flynn’s guilty plea, though that came after this FOIA was filed).

Then there are the eight members of Congress (in addition to the corrupt FL AG, Pam Bondi, who helped Trump out of a legal pinch in FL after Trump gave her a donation).

Lou Barletta, who’s a loud opponent of “illegal immigration,” a member of the Homeland Security Committee, and who, not long after this FOIA was first filed, prepared a challenge to PA’s Bob Casey in the Senate last year.

Marsha Blackburn, who works on a number of data issues in Congress, and is running to replace Bob Corker as TN Senator. Blackburn worked closely with Tom Marino to shield pharma and pill mills from DEA reach.

Chris Collins from upstate NY. His most interesting committee assignment is on Energy and Commerce, though he has worked on broadband issues.

Tom Marino, former US Attorney for Pennsyltucky who is on the Judiciary Committee. Trump tried to make him the Drug Czar, until it became clear he had pushed through a bill that hurt DEA’s ability to combat the opioid epidemic.

Devin Nunes, whose efforts to undermine the Mueller investigation have been epic, and who first manufactured the unmasking scandal. He’d be a great candidate to be Schaerr’s client, except he would probably just leak this information, which he has already seen.

Sean Duffy, a WI congressman who is chair of the investigations subcommittee of the Financial Services committee, and has been an opponent of CFPB.

Trey Gowdy took over as Chair of the Oversight Committee last year and also serves on the Judiciary and Intelligence Committees. Because of those appointments, even without being designated by Devin Nunes to take the lead on the Mueller pushback, he would have already had the most visibility on the Mueller investigation. But because Nunes put him in charge of actually looking at the intelligence, he is the single Republican who has seen the bulk of the Mueller investigative materials. During Nunes week, he announces his retirement suddenly, and has warned about the seriousness of the Mueller investigation, and he just gave a crazy interview to Fox News (which I’ll return to).

Dennis Ross, from FL, serves on the Financial Services committee.

On top of the Republicans, the list includes two of the few African Americans (with David Clarke, Omarosa, and Tim Scott) who supported Trump.  Darrell Scott was head of a Michael Cohen invented diversity group hastily put together in April 2016. Kiron Skinner is a legit scholar of Reagan who teaches at Carnegie Mellon and has a bunch of other appointments.

As I said, aside from the big obvious players, this list is a curious collection. Of note, however, four people on it should have a sound understanding of how NSA spying and FISA work: Thiel, Nunes, Gowdy, and Marino. But (again aside from the big players), the international ties of most of these people (Thiel and Skinner are big exceptions) are not readily apparent.

The whack understanding of FISA laid out on the complaint

I’m interested in the FISA knowledge of some people named in this list because of the crazy depiction of FISA that the complaint lays out.

The complaint highlights two departments of NSA, claiming they’re the ones that deal with improper use of intelligence (but does not include the Inspector General).

On information and belief, at least two departments within the NSA handle complaints regarding the improper use of intelligence. These departments are known publicly by the codes “S12,” a code name apparently referring to the agency’s Information Sharing Services authority, and “SV,” a code name apparently referring to the agency’s Oversight and Compliance authority.

As part of the FOIA to NSA, Schaerr asked for anything submitted to these departments.

All reports made to S12 and SV regarding improper dissemination of any individual listed in Question 2, above. See National Security Agency, United States Signals Intelligence Directive 18, § 7.5 (January 25, 2011).

That’s an oddly specific request, unless whoever is behind this request knows there are reports there.

That might suggest Nunes, Gowdy, or Marino is behind the request. But then consider how unbelievably wrong the complaint gets FISA.

After introducing FISA, it turns exclusively to Section 702, which is odd because the unmasking pseudo-scandal has thus far been based off the unmasking of individual orders.

Plaintiff’s requests in this case concern the Defendants’ use of the Foreign Intelligence Surveillance Act of 1978 (FISA).1 Section 702 of FISA (“Section 702”) empowers the Attorney General and the Director of National Intelligence to jointly authorize “the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information.” 50 U.S.C. § 1881a(a) (emphasis added). Section 702 expressly forbids use of this surveillance process to target persons who are either “United States persons” or located “inside the United States.” Id. at 1881a(b).

The complaint then makes three utterly false statements about how labor is divided between the FBI, NSA, and CIA.

14. The FBI collects data on outgoing communications, i.e., from persons in the United States to persons outside the United States.

15. The NSA collects data on incoming communications, i.e., from persons outside the United States to persons inside the United States.

16. The CIA, like the FBI and NSA, analyzes the information that comes from the FBI’s and NSA’s data collection. Unlike the other agencies, the CIA uses the information to engage in international intelligence operations.

The FBI collects on domestic targets, which can include incoming and outgoing comms, plus anything domestic (such as Sergey Kislyak’s calls across town to Mike Flynn; update — the December 29 calls would have been from DC to Dominican Republic, where Flynn was vacationing). The NSA likewise collects incoming and outgoing comms, as well as stuff that takes place entirely overseas (though very little of the latter is done under 702). Both the other agencies, in addition to CIA, use FISA information to engage in international intelligence operations.

The complaint then claims, in contradiction to a bunch of public information, that minimization equates to completely anonymizing US person data.

Section 702 also requires that foreign intelligence surveillance be conducted consistently with “minimization procedures.” Id. § 1881a(e)(1). These procedures are designed to “minimize the acquisition and retention, and prohibit the dissemination, of nonpublicly available information concerning unconsenting United States persons,” but in a manner still “consistent with the need of the United States to obtain, produce, and disseminate foreign intelligence information.” Id. § 1801(h)(1). As relevant here, minimization procedures must be designed to ensure the anonymity of United States persons who may be incidentally surveilled. Id. § 1801(h)(1), (2).

This comment comes immediately after a paragraph on finished intelligence reports, so this may be an incorrect statement of what masking is.

It then makes a claim about how data gets circulated that entirely ignores the sharing of raw data under 702, and further makes claims relying on this article that aren’t actually supported by the article (admittedly, the article doesn’t describe the sharing of raw data, but its focus in primarily on traditional FISA).

Generally, original raw intelligence is not circulated to other agencies; instead, intelligence reports are created and circulated internally. See, e.g., Gregory Korte, What is ‘unmasking?’ How intelligence agencies treat U.S. citizens, USA Today, (Apr. 4, 2017; 2:14 p.m.), https://www.usatoday.com/story/news/politics/ 2017/04/04/ what-unmasking-how-intelligence-agencies-treat-us-citizens/100026368. In the process of summarizing the intelligence, agencies exclude the names of U.S. citizens from the reports, referring to them instead with identifiers like “U.S. Person 1.” Id.

The complaint then describes what sounds like a muddle of upstream collection and back door searches, but gets both wrong.

The NSA also has the ability to search the internet data it collects by entering the name of an individual into a database search tool. This process is known as “upstreaming” and has the effect of creating additional raw intelligence that may contain the names of American persons. Such intelligence is also subject to the usual masking requirements and procedures.

This is wrong because upstream collection uses selectors, not names, whereas back door searches, which can use a name, are done by all three agencies. Such intelligence would not necessarily be masked at FBI if it made it into an investigative report.

The complaint then points to that godawful Circa report that itself muddles the difference between 702 and 704/705b to claim that they were upstream violations during the campaign cycle.

News reports—as well as a declassified Foreign Intelligence Surveillance Court (FISC) opinion—also note that some Americans had their names upstreamed, in violation of internal policies, during the 2016 election cycle, which the opinion described as a “serious Fourth Amendment issue.” See Declassified FISC Court opinion at 19-20, available at http://bit.ly/FISCopApril2017; Circa News, Obama intel agency secretly conducted illegal searches on Americans for years, May 23, 2017), https://www.circa.com/story/2017/05/23/politics/obama-intel-agencysecretly-conducted-illegal-searches-on-americans-for-years.

The violations in question, while serious, actually involve back door searches on upstream collection, and to the extent the searches were done on 704/705b targets, would only have happened were there an individualized FISA order against one of the named people (in fact, NSA’s back door searches on US persons are generally limited to people with individualized orders, those who may be targets of a foreign power, or urgent searches following a terrorist attack or similar situation).

In short, it’s a remarkable garble of how FISA really works. That doesn’t exclude Nunes’ involvement (I would hope both Marino and Gowdy have a better understanding of FISA than this, but don’t guarantee it). But it seems to be an attempt to declassify stuff it knows about, even while it exhibits a remarkable misunderstanding of what it’s talking about.

So why are all these Trump toadies worried about being unmasked

All of which brings me to the puzzle: what the hell is his anonymous client up to? Why is the client concerned about this specific selection of transition officials, but not (say) Mike Flynn?

Update: Laura Rozen notes that this list is the list provided here, except with this chunk taken out, and with some weird alpha order going on.

 

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Some Cover-Ups Are More Equal Than Other Cover-Ups

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Over at TNR, I’ve got a piece that mocks how former top spooks and officials pretend the partisanship of HPSCI is anything new.

On Monday, Republicans on the House Intelligence Committee released what it claimed to be a summary of its investigation into Russia’s role in the election. Among its conclusions, it disagreed with the intelligence community’s 2017 assessment that Vladimir Putin and the Russian government “developed a clear preference” for candidate Trump.

The summary, presumably drafted by aides of Trump transition official and committee Chairman Devin Nunes, disputed that assessment even in the face of the recent indictment of Russian internet trolls, which laid out how they set up anti-Hillary and pro-Trump campaign rallies. The indictment also showed how their social media activity pursued the same anti-Hillary, pro-Trump line, launching hashtags like #TrumpTrain and #Hillary4Prison, the Twitter account March for Trump, and the Facebook accounts Clinton FRAUDation and Trumpsters United.

Even some Republicans on the committee have delicately distanced themselves from the report. Trey Gowdy of South Carolina affirmed that Russia was “motivated in whole or in part by a desire to harm [Hillary Clinton’s] candidacy or undermine her Presidency had she prevailed.” Florida’s Tom Rooney, like Gowdy retiring after this term, said, “I absolutely think there was evidence they were trying to help Trump at some points.”

The report also garnered criticism from former spooks and top officials. John McLaughlin, CIA’s deputy director during the first years of the George W. Bush administration, complained on Twitter about the partisan nature of the stunt.

As a subject or observer of Cong oversight of intell for 40 years, I’ve never seen a party drive a stake thru the process as House Reps just did. It depends on a bi-partisan approach that at least gives the minority a voice. Take that away and the thing dies. It just did.

So did Obama-era Attorney General Eric Holder:

Republican House Intell Comm shut down Russia probe before doing a complete job This is a coverup and a lasting stain on the reputation of what used to be a bipartisan Committee when it was run by Republican Rogers and Democrat Ruppersberger. Politics beat a desire for the truth

Only, McLaughlin has seen such partisanship in congressional oversight before—when he benefited from it. In 2003, after Republicans regained the majority in the Senate, Senate Intelligence Committee Chair Pat Roberts agreed with the CIA to shut down initial efforts by his Democratic predecessor, Bob Graham, to oversee Bush’s torture program. The CIA memorandum of his briefing recorded, “[T]he Senator interjected that he saw no reason for the Committee to pursue such a request and could think of ‘ten reasons right off why it is a terrible idea’ for the Committee to do any such thing,” like observing interrogation as practiced in person. In the same period, Jane Harmon, then the ranking member of House Intelligence Committee, asked the CIA general counsel, “Have enhanced techniques been authorized and approved by the president?” In response, he gave her an evasive answer.

If partisanship drives a stake through effective oversight of the intelligence community, then the efforts to bypass Democratic concerns about torture killed that vampire long ago.

Furthermore, for much of the period that Holder is describing, between 2011 and 2015, Republicans were obsessed with turning the tragedy of the Benghazi assault into a circus. The House Intelligence Committee did its own report on the incident, replete with “additional views” from Rogers offering a sharper attack on the Obama administration, especially Susan Rice. Democrats were left offering “minority views” from Ruppersberger reminding lawmakers that blame for the attack should lie with the attackers.

I realize, of course, I left something out: that Holder was part of the cover-up himself.

In any case, I otherwise thought it a useful piece.

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