No Honor Among Troll Faces: The Latest Lawfare against Prigozhin’s Trolls

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Yesterday, Treasury sanctioned four people for election interference. Rudy Giuliani associate Andreii Derkach has gotten most of the attention. But Treasury also sanctioned three people associated with Yevgeniy Prigozhin’s troll operation.

Today, Treasury also designated three IRA actors pursuant to E.O. 13694, as amended by E.O. 13757, and E.O. 13848 for having acted or purported to act for or on behalf of, directly or indirectly, the IRA, an entity designated pursuant to E.O. 13694, as amended, and E.O. 13848. Russian nationals Artem Lifshits, Anton Andreyev, and Darya Aslanova, as employees of the IRA, supported the IRA’s cryptocurrency accounts. The IRA uses cryptocurrency to fund activities in furtherance of their ongoing malign influence operations around the world.

The identifying information announcement provides not just passport and date of birth information (which is normal), but for two of the sanctioned individuals, it includes 17 and 6 crypto-currency addresses, respectively.

ANDREYEV, Anton Nikolaeyvich (Cyrillic: АНДРЕЕВ, Антон Николаевич), 9 3 Bloshevikov Prospect Apt 35, Saint Petersburg, Russia; DOB 03 Mar 1985; POB Saint Petersburg, Russia; nationality Russia; Email Address [email protected]; Gender Male;

Digital Currency Address – XBT 1Fz29BQp82pE3vXXcsZoMNQ3KSHfMzfMe3;

alt. Digital Currency Address – XBT 1AeSq93WDNdLoEJ92sex7T8xQZoYYm8BtS;

alt. Digital Currency Address – XBT 1AoxtfiBQ22DvbhqAN9Ctb8sULMRhrdwTr;

alt. Digital Currency Address – XBT 18Qj1THHuETfYhuRDZycXJbWwDMGw73Poa;

alt. Digital Currency Address – XBT 1MnbhWe5wr7Ut45ReyQsm96PwnM9jD7KaH;

alt. Digital Currency Address – XBT 1DYFJ6CuBvrxyoQSuBzVsNcetY9tvdsrag;

alt. Digital Currency Address – XBT 15Pt4NwZaUmMUwS2bQbyyncc7mzgWShtv8;

alt. Digital Currency Address – XBT 1PhqQpaGCrqSxQ6QDXcv14QCd1U98Zp34E;

alt. Digital Currency Address – XBT 13YBQr2Cp1YY3xqq2qngaPb7ca1o4ugeq6;

alt. Digital Currency Address – XBT 1KgudqxMfYaGzqAA7MS4DcsqejtMteqhix;

alt. Digital Currency Address – XBT 1FRyL9gmFGbzfYDAB4iY9836DJe3KSnjP9;

alt. Digital Currency Address – XBT 1DbShx4r8i2XesthoDBf5EkYWz5dsKEusV;

Digital Currency Address – ETH 0x8576acc5c05d6ce88f4e49bf65bdf0c62f91353c;

Phone Number 79315403678;

Digital Currency Address – LTC LWnbjLYUfqeokfbWM4FcU7uk2FP2DSxuWS;

alt. Digital Currency Address – LTC LaYUy1DGfVSuSF5KbPhbLrm8kRotqiwUJn;

Digital Currency Address – ZEC t1WSKwCDL1QYRRUrCCknEs5tDLhtGVYu9KM;

Digital Currency Address – BSV 12sjrrhoFEsedNRhtgwvvRqjFTh8fZTDX9; Passport 4005504207 (Russia) (individual) [CYBER2] [ELECTION-EO13848].

[snip]

LIFSHITS, Artem Mikhaylovich (Cyrillic: ЛИФШИЦ, Артем Михайлович), Primorsky Prospect 159, Saint Petersburg 197374, Russia; DOB 26 Dec 1992; nationality Russia; Email Address [email protected]; alt. Email Address [email protected]; Gender Male;

Digital Currency Address – XBT 12udabs2TkX7NXCSj6KpqXfakjE52ZPLhz;

alt. Digital Currency Address – XBT 1DT3tenf14cxz9WFNxmYrXFbB6TFiVWA9U;

Digital Currency Address – ETH 0x901bb9583b24d97e995513c6778dc6888ab6870e;

alt. Digital Currency Address – ETH 0xa7e5d5a720f06526557c513402f2e6b5fa20b00;

Phone Number 79110354982;

Digital Currency Address – LTC Leo3j36nn1JcsUQruytQhFUdCdCH5YHMR3;

Digital Currency Address – DASH Xs3vzQmNvAxRa3Xo8XzQqUb3BMgb9EogF4; Passport 719032284 (individual) [CYBER2] [ELECTION-EO13848].

Yesterday, EDVA also announced a single criminal charge of conspiracy to commit wire fraud against one of the sanctioned people, Artem Lifshits, who in 2017 was head of the “Translator Department [or Project],” which is what the troll project focusing on the US is called. As the excerpt above notes, Lifshits actually got fewer of his cryptocurrency accounts sanctioned than another of the targets, Anton Andreyev.

I’d like to look at how the criminal complaint complements the two other sets of charges against Prigozhin’s troll operation, the indictment against 13 of the actual trolls as well as some of the companies involved (here’s a very long post on that prosecution), and Prigozhin himself and a complaint against one of the accountants involved, Elena Alekseevna Khusyaynova (here’s my post on that). Along with renewing and fleshing out the case against Prigozhin, the complaint may be an effort to sow discord within Prigozhin’s operation, by alerting him that some of his employees may be helping themselves to company troll funds.

The affidavit by a Secret Service Agent supporting the complaint incorporates the other two legal actions and includes them as exhibits to this charge. It even includes a footnote explaining why DOJ dismissed the charges against Prigozhin’s shell companies.

On March 16, 2020, the United States dismissed Concord Management and Consulting LLC from the Indictment. Concord “availed itself of the Court’s jurisdiction to obtain discovery from the United States . . . while positioning itself to evade any real obligations or responsibility,” even refusing to produce a corporate representative despite “appearing” through counsel. Mot. to Dismiss Concord Defs., 2, 6, United States v. Internet Research Agency, et. al, 1:18-cr-32 (DLF) (D.D.C. Mar. 16, 2020). In light of the defendant’s conduct, the United States dismissed these parties from the Indictment, stating substantial federal interests were no longer served by continuing the proceedings against them. See id. at 9. The Indictment remains pending and active as to thirteen named individual defendants and the IRA.

After some introductory matter, the affidavit:

  • Describes the Lakhta disinformation project generally, including a brief overview of its attempts to sow discord between December 2016 through May 2018, incorporating some but not all of the examples from the Khusyaynova complaint, and adding a few new ones, including three paragraphs on use, starting in July 2019 of a cover company located in Accra, Ghana.
  • Describes how in October 2018 the Secret Service started investigating the role of cryptocurrency in the operation.
  • Explains that Lifshits served as head of the Translator Department.
  • Describes how Lifshits transferred money from a BTC account opened using the stolen identity of “T.W.” to his own personal account, the central allegation of wire fraud laid out in the indictment.

The basic proof accusing Lifshits of using T.B.’s stolen identity to open a Bitcoin account that he then used to transfer money into his own account relies on very basic metadata analysis obtained using legal process:

  • Evidence backing the selectors of Lifshits tie to his biological person and one of the cryptocurrency accounts he transferred money into (including two other Internet troll employees’ address book entries with his phone number, one of which referred to him as “Troll Face”).
  • Evidence showing Lifshits applying to Project Lakhta in July 2015 and appearing on rosters of Project Lakhta employees dated January 28, 2017 to October 26, 2017.
  • A description of finding order confirmations in the known IRA email, allforusa, from a criminal marketplace that sold fraudulent identities (this might be Richard Pinedo’s site).
  • Two paragraphs describing interviews with T.W. and another identity theft victim, T.B.,  in which they said he had never owned any cryptocurrency themselves and had not authorized anyone to do so on their behalf.
  • IP analysis showing Lifshits accessing cryptocurrency addresses (including his own) from an IRA IP address, as well as from a US-based account set up using a stolen identity but controlled by IRA.
  • IP address analysis showing him accessing the T.W. cryptocurrency account at the same time he accessed one of his own accounts, into which he transferred funds.
  • User Agent String analysis showing those accounts being accessed by the same browser.
  • IP analysis establishing venue in EDVA via some AWS servers.

In other words, the complaint, after invoking the two other legal actions against IRA and Prigozhin, finds one manager amid Prigozhin’s employees and shows some very basic metadata evidence — relying on neither intelligence nor some of the more sophisticated blockchain analysis the US government would like to hide — to accuse the manager, Lifshits, of wire fraud because of a financial transfer involving the stolen identity of an American.

There are two interesting aspects of the complaint, besides the way it slowly builds the case against Prigozhin via interlocking accusations.

First, a key passage of all this describes that Lifshits made this transfer “for personal gain.”

60. On or about December 29, 2017, LIFSHITS accessed and used the T.W. Exchange 1 Account to conduct an electronic transfer of funds from the T.W. Exchange 1 Account to his personal Exchange 3 account. This transaction is publicly viewable on the Bitcoin blockchain and USSS confirmed its existence through other investigative means.

61. On or about December 29, 2017, LIFSHITS used United States IP Address 1 at 15:35 UTC to access his Exchange 3 account. Then, three minutes later, he used the same IP address to access the T.W. Exchange 1 Account. This is on the same day that the T.W. Exchange 1 Account sent an electronic funds transfer to LIFSHITS’ Exchange 3 account.

62. With this transaction, LIFSHITS (1) intentionally and voluntarily devised or participated in a scheme to defraud — as evidenced by controlling and using a fraudulent cryptocurrency account, and (2) used interstate wire communications to further the fraud — as evidenced by the online cryptocurrency transactions.

It doesn’t say, one way or another, whether this was a sanctioned transfer of funds out of an IRA-controlled account or not. The government may have used this 34-page affidavit not only to flesh out the case against Prigozhin, but also to reveal that one of his employees is bilking him, effectively stealing trolling funds.

But the complaint also mentions a Co-Conspirator 1, who along with Lifshits bought identities using cryptocurrency.

Law enforcement obtained a search warrant for the contents of the email account [email protected], which as stated above is associated with a cryptocurrency account linked to both LIFSHITS and Co-Conspirator 1. During a review of the emails, law enforcement located “Order Confirmation” emails received from an online criminal marketplace that sells fraudulent passports and similar identification documents (the “Criminal Marketplace”). These emails corresponded to purchases of United States driver licenses that reflected the real names, addresses, and dates of birth of United States identity theft victims. This type of personally identifiable information is a “means of identification” as defined in Title 18, United States Code, Section 1028(d)(7).

It describes Co-Conspirator 1 as the sole other beneficiary of transfers out of a different IRA trolling account (though also suggests that one of the guys charged in the larger indictment might also be conducting such transfers as well).

The T.W. Exchange 1 Account reflected debits to several beneficiaries, including accounts registered to LIFSHITS and another known Project Lakhta member (“Co-Conspirator 1”). The IP activity associated with the T.W. Exchange 1 Account also matched the IP address activity of cryptocurrency accounts registered to LIFSHITS and Vladimir Venkov, who is charged in the USAO-DC Indictment.

It then introduces an account based off a different stolen identity, that of T.B., from which funds were transferred into an account controlled by the Co-Conspirator.

USSS identified a second account, which was hosted at another United States cryptocurrency exchange (“Exchange 2”). The Exchange 2 account was registered to a known Project Lakhta email account, [email protected] (hereinafter the “AllforUSA Exchange 2 Account”).7 Project Lakhta members opened the AllforUSA Exchange 2 Account using the identifiers of T.B. According to Exchange 2’s records, Project Lakhta members solely funded the AllforUSA Exchange 2 Account with an incoming credit from an account also in the name of T.B. at a United States-based financial institution. This credit was used exclusively to fund outgoing payments to a Blockchain wallet that USSS investigators determined was controlled by Co-Conspirator 1.

Now, it may be that the government only introduced Co-Conspirator 1 to establish venue in EDVA (which went through the T.B. account).

But it sure sounds like it is describing Co-Conspirator 1 as engaging in the same kind of transfers from IRA accounts into his own personal accounts that it describes Lifshits as doing.

Perhaps stealing from the troll till is considered part of their official compensation (elsewhere, the complaint cites the salary of Lifshits, so the US government may know the answer). Or perhaps these guys whose cryptocurrency addresses just got published in a US sanction announcement have been stealing from Prigozhin, in which case the US Treasury just provided Prigozhin a lot of hints about how to prove it.

This is Impossible, Part Two: Loving From a Distance

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I began writing this in the Munich airport, waiting at a quiet, bright airport gate that was the liminal space between one life and another, between being mother, and being wife. My face was red and sore from wearing an n95 mask for 12 hours. Or, more precisely, two n95 masks, changing the first after about eight hours of wear.

Woman writing a letter

Woman writing a letter.

I had said goodbye to my daughter in San Francisco, and was on my way to my partner, in Luxembourg. But in that moment I was nowhere and no one. I had been away from my partner for the longest time since we met. It was hard, but not as hard as leaving my child in the middle of a pandemic. Because of this damn disease, I did something else I’ve never had to do before: I said goodbye to my child without knowing when I would see her again.

I sent them both messages to say I was ok, that I’d landed, and was waiting for my next flight. I posted little updates, took pictures of odd things in the airport, and let time pass.

We are so far from each other these days, craving connection, and fearful of it. Many of us feel locked up in our own universes, either by local health measures, or by the fear of dying, killing, or both. Even for those flouting health measures there is doubt and distance, not all of their loved ones agree, they miss people too. They can’t travel to see the ones they miss, and everyone is avoiding the arguments about what the right thing to do is in a world where we can’t know at this moment what the right thing to do is.

Uncertainty is in-between time, time when you want comfort and the closeness of your personal village, but now that has to be distant, and it makes the time interminable.

I am good at letting in-between time pass. I have always been something of a long distance person. When I was young I was a long distance child, with parents in different states. I was always far from my mother or father, before growing up and becoming far from my friends and lovers and eventually far from my child, most of the time. When she was smaller I would call her to say goodnight every evening, from wherever I was, even a few times while waiting for the police to roll in on a protest or camp. I would get away from the noise and current events as best as I could, just to hear about my little girl’s day and tell her to sleep well, and that I love her. Now we share chatrooms and video calls, but that’s not new with the pandemic. I have countless screen captures on old harddrives of my little girl on Skype, Jitsi, eventually Big Blue Button, and other bits of software we used to see and love each other.

I am always far from someone I love, it’s one of the defining qualities of my life. But now, most people are far from someone, sometimes someone who isn’t very far away. So maybe my experience can be of some use.

Woman writing a letter.

Woman writing a letter.

First off, yes, it’s heartbreaking. When I think of all the time I’ve missed watching my daughter grow up, it feels like a broken thing in me, something jagged and free floating that catches in my throat and chokes me sometimes. I think of all the friends I have, continents away from each other — and me. Of the people I love, the people who I may never see in person again. I miss them, I am an ocean of missing them, all salty tears and indistinct edges. But this is my life, and I’ve decided to get good at it. Right now, people are losing each other. The connections we took for granted have weakened, and the stress everyone is under only makes it worse. Right now, we need more love, but we’re lonely.

This is what I know about loving from a distance.

Giving is the most important part. Reaching out, writing, poking everyone, it takes time, but in a way that feeds the soul. Don’t expect something specific back. Some people, even when thrilled to hear from you, may not have the energy to reply. Revel in the fact that you’ve touched someone you care for. Make time to talk to people, as strictly as you make work time, school time, exercise time, eating time. Make lists of names. This is one of the things you’re doing to keep healthy.

But it doesn’t have to be big. In fact, it rarely should be. We often think we have to have a plan when we reach out, or at least something to talk about. We forget that most of our communications with the people we care for are ephemera. They are acknowledging someone coming in the room, relaying a joke or some inconsequential oddity encountered on the street. They are nothing at all to be recorded in our memories individually, but taken together they become the background music of love. They are not weighty, they should not be weighty, but they gather up like gold dust. These are the things I call small touches, and from a distance they can look like a text message, a joke, a funny tumblr post, a picture of something seen along a walk. When spring came and we were all sheltering in place I didn’t want the flowers to pass unnoticed, so I took pictures of them and sent them to people. Here is something pretty – I am thinking of you.

Woman writing a letter.

Woman writing a letter.

There was a time when mail was delivered five times a day or more in some places, and while we look back on multipage letters from generations past that’s not what it was most of the time, that’s the stuff someone saved. Little things are the scaffolding of love and connection. Little things are the bubble wrap that keeps our souls safe on long journeys, and right now we are all on a very long journey.

I make lists of people to connect with. I try to wave over the net, I don’t always succeed. But I’m still taking pictures of flowers, and thinking of who needs to see my flowers.

When you can’t be there, be real.

People think social media makes you fake, but that’s bullshit. Being dishonest makes you fake, not the size of the screen you’re dishonest on. In your communication, texts, letters, posts in your social media, don’t hide, don’t perform. What you tell them 45 minutes into lunch is what you put on Instagram.

I know that this is funny coming from me. I am probably more famous for being hated by the internet than for anything I’ve accomplished in my life. Bit while this can be incredibly scary, what happens next is a watershed. There are people that back away when you’re honest, but mostly, people are honest back. They feel trusted, because they have been, and they feel safe, because if you can post that, so can they. Right now we need that trust and safety, and because our lives are so much online now, it means bringing that trust and safety into our online spaces.

That vulnerability can feel very unsafe. Liberally mute the toxic. Don’t engage with it, and let the people that respond well to authenticity buoy you up. I have been destroyed several times by online mobbing. I was nearly driven to suicide after part of the net and media tried to blame me for my best friend’s death, and then again a few years later when the mobbing showed up to destroy my career. If I can be real online after all that, anyone can. The friends and strangers who respond with kindness make all the difference.

This goes doubly for one-on-one communication. Be real. Even when you’re just too tired to engage directly, just say it.

Accept incongruity. I am sitting here on a bright and clear late summer afternoon in a tiny european country. My child can’t leave her house because of smoke and heat right now, and hasn’t been able to for more than a week. I want to tell her to go get out and exercise, which is ridiculous. That’s what I should do, I should be telling her to play more Minecraft with her friends. We are far away, and even though our love is deep, our shared world is very thin. She and I are not going to be in the same mood, or having the same experience of the world. Still, we make time to talk about philosophy, video games, and memes.

Woman writing a letter.

You’re far away right now, from a lot of people, who are far away from each other. You’re not going to have a shared experience of reality unless you’ve scheduled it. You’re going to be having a great day while someone else is having the worst day, and vice versa. That’s ok. You can be emotionally out of sync and still love each other with compassion and sympathy and warmth. You don’t have to take on the emotional state of someone far away. Sympathy and compassion can heal and connect, but trying to have empathy, or demanding it, can destroy a narrow, long distance connections. If it feels like you’re giving or getting too little, say so. Talk about it, be honest about giving and needing, and be ready to spread your needing between people. Don’t drain someone, and don’t be drained. Health is a team sport — it takes our overlapping personal villages to care for each other. It’s ok to tap out.

Part of accepting incongruity is accepting asynchronicity. My partner and I have been in a eight year long conversation over the net. It never really ends, and doesn’t line up perfectly that often. When we’re apart we’re typically nine hours apart. We leave things for each other. We poke, and then let it lie until the stars align and we can have a little time in sync. My phone is always on silent with almost no notifications allowed on it at all. I once had to text a friend to find out how to turn the ringer on on an iPhone, he told me about the switch on the side, which I had forgotten existed. The people I love and I are not constantly interrupting each other to stay connected. Instead, we’re leaving things for each other, and when we line up, either by schedule or happenstance, we catch up more deeply. Being connected to a friend cannot be a special occasion — the magic comes from the plainness and constancy of it. Right now, we all need that plainness and constancy.

It is such a blessing that in this particular plague year, we have all of this new technology to connect us and keep us safe for the first time. This is a chance to learn how to bring our humanity to the internet and technology — being human to each other — and that will get us through.

Woman writing a letter.

Woman writing a letter.

 

 

 

My work for Emptywheel is supported by my wonderful patrons on Patreon. You can find out more, and support my work, at Patreon.
Thanks to Ryan Singel.

 

The US Government Formed a New Understanding of WikiLeaks after 2016

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Julian Assange’s substantive extradition hearing starts today. (I’m collating a list of journalists covering it from the live feed.)

I view the proceeding with great ambivalence.

I definitely agree that some of the charges against him — there are two theories of publishing charges: conspiring by asking for specific files, including entire databases, and publishing the identities of informants — pose a threat to the press. That said, the Trump Administration has used one of the same theories it is using against Assange to threaten journalists even in the last week (and was, before his superseding indictment) with virtually no cries of alarm from those defending Assange. In addition, charging him for exposing the identities of US and Coalition sources is a well-established crime in the UK, the Official Secrets Act, and (because Coalition sources were included among those WikiLeaks is accused of exposing) could be charged if the extradition against him fails.

The CFAA charge against Assange — particularly as expanded in the latest superseding indictment — does not pose any unique threat to journalism. Indeed, Assange’s alleged co-conspirators in the bolstered CFAA charge were already prosecuted, on both sides of the Atlantic, so there’s no question that the underlying hacking is a viable charge. WikiLeaks supporters have pointed to the unreliability of Siggi and Sabu to question those charges. They’ve focused less on the immunity granted David House for his testimony, though at trial Assange’s lawyers would focus on that, too. They might argue, too, that the US government has spun this particular conspiracy well outside the bounds where participants had made common agreement (if they kept spinning, after all, FireDogLake might get swept up for Jane Hamsher’s ties to House and defense of Manning back in the day).  But those are complaints about the strength of the government case, not the appropriateness of extradition. I suspect the government case is far stronger than shown in the indictment, which currently relies only on publicly available evidence.

Assange’s defense will call a number of experts (Kevin Gosztola discusses them here), many though not all of whom will present important, valid points. They’ll raise important issues about the free speech implications of this case, the dangers of the Espionage Act, America’s atrocious standards of incarceration, and the EDVA venue; the latter three of these, however, are in no way unique to Assange (and venue for him in EDVA is uncontroversial, unlike it has been for others charged in a district where a jury is virtually guaranteed to include people tied to the national security world). They’ll raise evidentiary complaints to which the lawyer representing the US government will present counterarguments. They’ll talk a lot about the Collateral Murder video, which was not charged.

WikiLeaks’ supporters will also exploit the US government’s Mike Pompeo problem, in this case by misrepresenting a comment he bombastically made about the First Amendment when declaring WikiLeaks a non-state hostile actor in the wake of the Vault 7 release.

No, Julian Assange and his kind are not the slightest bit interested in improving civil liberties or enhancing personal freedom. They have pretended that America’s First Amendment freedoms shield them from justice. They may have believed that, but they are wrong.

[snip]

Third, we have to recognize that we can no longer allow Assange and his colleagues the latitude to use free speech values against us. To give them the space to crush us with misappropriated secrets is a perversion of what our great Constitution stands for. It ends now.

[snip]

DIRECTOR POMPEO: Yeah, First Amendment freedoms. What I was speaking to there was, as – was a little less constitutional law and a lot more of a philosophical understanding. Julian Assange has no First Amendment freedoms. He’s sitting in an embassy in London. He’s not a U.S. citizen. So I wasn’t speaking to our Constitution.

What I was speaking to is an understanding that these are not reporters don’t good work to try to keep you – the American government honest. These are people who are actively recruiting agents to steal American secrets with the sole intent of destroying the American way of life. That is fundamentally different than a First Amendment activity, as I understand them, and I think as most Americans understand them. So that’s what I was really getting to.

We’ve had administrations before that have been squeamish about going after these folks under some concept of this right-to-publish. No one has the right to actively engage in the threat of secrets from America with the intent to do harm to it.

This is not the first time the Trump Administration has had a Mike Pompeo problem when prosecuting WikiLeaks-related crimes, nor should it be the last. I believe Joshua Schulte’s attempts to call Pompeo forced the government to back off its claim that Schulte’s decision to leak to WikiLeaks — allegedly in April 2016 and so months before the future CIA Director was still celebrating WikiLeaks leaks of DNC files — was by itself proof of his intent to damage the US. That’s particularly true as Secretary of State Mike Pompeo torches the infrastructure of Human Rights in the world. While I, in no way, believe the Assange prosecution arises from any personal animus Pompeo has for Assange, Pompeo’s role in it and his clear retaliation against the ICC last week will be easy to use to delegitimize the Assange prosecution.

So WikiLeaks will have a lot of good points to present in the next several weeks.

But they’re also expected to tell a number of cynical lies, including with respect to pardon dangles in the US, lies that will detract from the otherwise very important principles they will raise.

I believe the prosecution of Julian Assange as charged poses a number of dangers to journalism.

But I also believe the government has evidence — some of which it may not want to share during extradition and some of which it may not ever share — that Assange is precisely what they say he is, someone with an entire intelligence infrastructure uniquely targeting the US. Of particular note (as I said regarding one of the new allegations in the CFAA charge), I know of multiple allegations, of mixed but in some cases impeccable credibility, that WikiLeaks has used its infrastructure to spy on protected entities — journalists, lawyers, former associates — going back years, long before UC Global allegedly ratcheted up the spying on Assange. The NYT doesn’t spy on its competitors to find out how they might undermine its unique role, and WikiLeaks itself says such spying on Assange is improper, so there’s no basis to claim that when WikiLeaks does it, it’s all good.

Still, even if Assange is the head of a non-state hostile intelligence agency, does that merit prosecution? While the US has sanctioned the heads of hostile state intelligence agencies, with a few notable exceptions, they don’t extend their jurisdiction overseas to prosecute them.

In addition, the allegations of involvement in Russia in all this are well-founded. The folks involved in the LulzSec chatrooms now incorporated into Assange’s CFAA charge acknowledge there were Russians there as well, though explain that the whole thing was so chaotic no one thought that much about it. Only those who aggressively ignore the public case afford WikiLeaks any deniability that it did Russia’s work in publishing the stolen Democratic files in 2016. The Joshua Schulte trial presented evidence he wanted to work with Russia too; while the evidence presented (almost incidentally, a point I hope to return to one day) at trial is quite ambiguous, I first learned about his willingness to work with Russia months before any such allegation made it into a court filing. In addition, I know of one much earlier instance where someone in WikiLeaks’ infrastructure had similar such interests. And that’s before all the allegations that WikiLeaks diverted files damaging to Russia over years.

All of those are my views about the ambivalence of this extradition proceeding, whatever those are worth as someone who has followed WikiLeaks closely from the beginning.

But there’s another point that has gotten virtually no attention, particularly not from WikiLeaks supporters who often make false claims about the investigation into WikiLeaks that conflict with this point. The government’s understanding of WikiLeaks changed after 2016, and so changed after the Obama Administration decided that prosecuting WikiLeaks posed “a New York Times problem.” The multi-volume Senate Intelligence Report talks about this repeatedly, though virtually all instances (such as this passage from Volume III) remain heavily redacted.

A different passage from the same volume, however, explicitly calls WikiLeaks a “coopted third party.”

Despite Moscow’s hist01y of leaking politically damaging information, and the increasingly significant publication of illicitly obtained information by coopted third parties, such as WikiLeaks, which historically had published information harmful to the United States. previous use of weaponized information alone was not sufficient for the administration to take immediate action on the DNC breach. The administration was not fully engaged until some key intelligence insights were provided by the IC, which shifted how the administration viewed the issue.

And, to the very limited extent you can trust the view of a prosecutor trying to coerce testimony from Jeremy Hammond, the people who will prosecute Assange if he’s extradited claim he’s a Russian spy.

This has important implications for the case against Assange, implications that his supporters make aggressive efforts to obscure. First, the surveillance of Assange almost certainly ratcheted up because of actions Assange took in 2016 and 2017, actions that aren’t protected by journalism. As a foreigner who negotiated the receipt of documents with a presumed Russian mouthpiece, Guccifer 2.0 — in what was surely theater played out on Twitter DMs — Assange and WikiLeaks made themselves targetable as foreign intelligence targets in an attempt to learn about the Russian attack on the US. Assange’s multiple efforts to offer Trump’s campaign a unique benefit — picked up in investigative collections targeting others — made Assange a criminal target in a foreign donation investigation, one Mueller declined to prosecute for First Amendment reasons (50 USC 30121 is cited in the single Mueller warrant admitted to be targeting WikiLeaks that has been publicly released). And because of some overt ongoing communications with Joshua Schulte over the course of the former CIA programmer’s prosecution, WikiLeaks’ communications would be collected incidentally off of collection targeting him as the primary suspect in the leak.

Thus, even before Pompeo declared WikiLeaks a non-state hostile actor, Assange had done things that made him targetable in a way that he hadn’t previously been. And burning down the CIA’s hacking capability behind thin claims of public interest and then continuing to communicate with the presumed source surely didn’t help matters.

And, according to multiple public, official government documents, that changed the US government’s understanding of what WikiLeaks is. Public documents make it clear that witnesses (including but not limited to David House) provided new testimony as the government came to this new understanding, even beyond the government’s ill-fated attempt to coerce more testimony out of Chelsea Manning and Hammond. I know of at least two non-public investigative steps the government took as well. On August 20, 2018 — two days before a prosecutor wrote a gag request in EDVA that mistakenly mentioned the sophistication of Assange and the publicity surrounding his case and eight months after Assange was first charged — a Mueller warrant targeting a Guccifer 2.0 email account described an ongoing investigation into whether WikiLeaks and others were conspiring and/or a Foreign Agent, which suggests a similar amount of activity targeting Assange directly in EDVA. The government conducted a great deal of investigation into Assange — predicated off of either activities that have nothing to do with journalism and/or the fact that there was one obvious source for what might be WikiLeaks most damaging publication — that has happened in recent years.

WikiLeaks supporters will cite something that former DOJ Director of Public Affairs, Matthew Miller, said  about how hard it is to distinguish what WikiLeaks does from what the New York Times does.

The problem the department has always had in investigating Julian Assange is there is no way to prosecute him for publishing information without the same theory being applied to journalists.

But Miller made that comment in 2013, before Assange did things that gave the US government reason, entirely independent of things journalists do, to investigate him and WikiLeaks more aggressively. And even in an Administration that might not be in power were it not for Assange’s actions, even after Trump and his associates considered rewarding Assange with a pardon for his help, that has led to a dramatically different understanding of what WikiLeaks is.

That belief — and the government’s still mostly secret evidence for it — does nothing to mitigate the risks of some of the charges against Assange, as currently charged. But it is a fact that should be considered in the debate.

Update: Fixed date of a Mueller warrant I discussed.

Update: Bridges will be posting all the arguments and statements. Thus far they include:

The Latest Stinky 702 Opinion Bodes Poorly for the Next One

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Last night, I Con the Record released last year’s 702 opinion, approved by current presiding FISA Judge James Boasberg. It’s stinky. It shows continued violations of querying procedures (which I’ll describe below), as well as on new troubling issue at NSA (which I hope to describe in a follow-up).

Worse still, the opinion, the timing, and recent Bill Barr actions suggest we’ll see an even stinkier opinion in maybe another year.

The opinion we’re getting on September 3, 2020, was released by FISC on December 6, 2019. Not only has it taken nine months to release this opinion, but ODNI sat on it in anticipation of and in the aftermath of the DOJ IG Report on Carter Page, which was publicly released December 9, 2019. That means that the delay in releasing this led to a disproportionate focus on events that happened three or four years ago, but not on events that have persisted under Billy Barr.

But the timing is important for several other reasons: the government has to be preparing its next reapproval package now (assuming the 2019 certificates are good until December 5, it would need to submit a new package by November 5). That’s significant for several reasons. First, as laid out by the timeline below, while the FBI waited for a FISCR review of an October 2018 Boasberg decision that its querying procedures didn’t comply with a new requirement passed by Congress, there were ongoing querying problems of the same type, including both the deliberate querying of 702 information to vet sources (and cops), but also at least one mass query that ended up finding seven leads out of 16,000 Americans. There was a significant delay in reporting some of these:

  • Querying violations found in June reported September 18, 2019
  • Querying violations found in July reported September 6, 2019
  • August querying violation involved 16,000 people reported November 25, 2019

In addition, there were several more reports on querying violations, one on September 17, and another on September 20.

That is, the reports on some of these were delayed until after FISCR ruled (on July 12), and for many of them, there was a delay until around the same time as the government submitted their new reauthorization packet on September 17, 2019 (which is the package that led to this December 6 opinion).

Then, after submitting the reauthorization package, starting on October 4, 2019, the FBI asked to be excused from two reporting requirements imposed in 2018.

In one case — requiring that FBI has retained 702 information in some archival systems — the FBI waited to comply with a change in reporting requirements made in October 2018 until it was prepping the 2019 certificates, and then asked for a weaker reporting requirement (and got it, prospectively).

It must be noted, however, that the government has unjustifiably disregarded the current reporting requirement. Instead of taking concrete steps to comply even partially with the Court’s directive (or timely seeking relief from it), it chose to wait while the FBI reportedly worked on guidance to instruct its personnel on how to handle unminimized Section 702 information on these archival systems. See Letter Regarding the FBI’s Steps to Implement an Aspect of the Court’s 2018 Section 702 Opinion and Order, Sept. 27, 2019, at 3. In fact, it has taken so long to prepare this guidance that, instead of using it to instruct personnel on the October 2018 reporting requirement, which the government reports was the original plan, the FBI now intends to address only the narrower reporting requirement incorporated into the FBI’s proposed minimization procedures. See Letter Regarding the FBI’s Steps taken by the FBI to implement an aspect of the Comt’s 2018 Section 702 Opinion and Order, Nov. 20, 2019, at 4.

It should be unnecessary to state that government officials are not free to decide for themselves whether or to what extent they should comply with Court orders. The government has not sought retrospective relief from the reporting requirement imposed by the Court on October 18, 2018. Although the AG and DNI have amended the prior Section 702 certifications to authorize the FBI to apply its proposed minimization procedures to information acquired under prior certifications, that authorization only becomes “effective on October 17, 2019, or on the date upon which [this Court] issues an order concerning [the] amendments pursuant to subsection 702(j)(3) of the Act, whichever is later.”[redacted] The Court’s approval of those amendments does not have any nunc pro tune effect, nor does it excuse the government from reporting instances of retention that it is already obligated to report. With respect to those instances of retention, the October 2018 reporting requirement remains in effect.

In another — far more important — case, the FBI asked for the reporting requirement (on when an Agent conducts a criminal search and finds 702 information) to be eliminated entirely, again, after the reauthorization package was completed. This reporting requirement was designed to test the FBI’s now provably false claim that agents would never find 702 information when conducting criminal searches. It goes to the heart of concerns about Fourth Amendment violations.

Boasberg relaxed, though did not eliminate, that reporting requirement.

The government has not reported such instances in timely fashion. Rather, they have been reported to the Court belatedly, usually after they were uncovered during oversight reviews. The government now seeks relief from this reporting requirement “because the requirements in Section 702(f)(2) are a sufficient mechanism for the Court to assess the risk that the results of a query designed to elicit evidence of crimes unrelated to foreign intelligence will be viewed or otherwise used in connection with an investigation that is unrelated to national security.” October 4, 2019, Request at 8. But it would be premature to regard the government’s implementation of Section 702(f)(2) as a sufficient source of information. As discussed above, the FBI has repeatedly accessed Section 702-acquired contents under circumstances requiring a FISC order under Section 702(£)(2), but has never applied for such an order.

Closer to the mark is the government’s contention that implementing both Section 702(f)(2) and the November 2015 reporting requirement could complicate training and systems design. See October 4, 2019, Request at 8-9. For example, Section 702(f)(2) looks to whether a query involves a U.S.-person query term, while the applicability of the November 2015 reporting requirement depends on whether U.S.-person information is retrieved. And Section 702(f)(2) is implicated only when contents are accessed, while the November 2015 reporting requirement · does not distinguish between contents and non-contents information.

The Court has decided to retain a reporting requirement separate from Section 702(f)(2) because the obligation to get a FISC order under that section is limited to queries conducted in the context of a predicated criminal investigation. The FBI conducts numerous queries of Section 702 information at earlier investigative stages. See October 18, 2018, Opinion at 75. Reports about queries at those stages remain relevant to the Court’s interest in receiving information about the extent to which U.S.-person privacy interests are implicated by queries that are not designed to find and extract foreign-intelligence information. The Court has concluded, however, that it is appropriate to modify the prior reporting requirement so that it will focus on the use of U.S.-person query terms, rather than on whether U.S.-person information is accessed as a result of a query, and will be triggered only when contents information is accessed. Such modifications should make it considerably simpler for the government to implement the requirement in combination with Section 702(f)(2), while still requiring reporting in situations where Fourth Amendment concerns are likely to be implicated. See October 18, 2018, Opinion at 93 (queries that use U.S.-person query terms and result in review of contents are “the subset of queries that are particularly likely to result in significant intrusion into U.S. persons’ privacy”).

Ultimately, Boasberg approved the certifications, effectively arguing that FBI just needed time to be trained on them.

The Court has previously assessed that requiring FBI personnel to document why a query involving a U.S.-person query term is reasonably likely to have returned foreign-intelligence information or evidence of crime before examining contents returned by the query should “help ensure that FBI personnel … have thought about the querying standard and articulated why they believe it has been met” and prompt them “to recall and apply the guidance and training they have received on the querying standard.” See id. at 93; see also In re DNI/AG Certifications at 41 (that requirement may “motivate FBI personnel to carefully consider … whether a query satisfies” the standard). The recently reported querying violations suggest that some FBI personnel still need such help. That is not altogether surprising. As discussed above, the FBI is really just sta11ing to implement that documentation requirement on a comprehensive basis. For that reason, the improper queries described above do not undermine the Court’s prior determination that, with that requirement, the FBI’s querying and minimization procedures meet statutory and Fourth Amendment requirements.

I suggested when the 2018 package was released last year, we’d start learning details of back door searches that had been implicit since 2007.

Nevertheless, 12 years after this system was first moved under FISA (notably, two key Trump players, White House Associate Counsel John Eisenberg and National Security Division AAG John Demers were involved in the original passage), we’re only now going to start getting real information about the impact on Americans, both in qualitative and quantitative terms. For the first time,

  • We will learn how many queries are done (the FISC opinion revealed that just one FBI system handles 3.1 million queries a year, though that covers both US and non US person queries)
  • We will learn that there are more hits on US persons than previously portrayed, which leads to those US persons to being investigated for national security or — worse — coerced to become national security informants
  • We will learn (even more than we already learned from the two reported queries that this pertained to vetting informants) the degree to which back door searches serve not to find people who are implicated in national security crimes, but instead, people who might be coerced to help the FBI find people who are involved in national security crimes
  • We will learn that the oversight has been inadequate
  • We will finally be able to measure disproportionate impact on Chinese-American, Arab, Iranian, South Asian, and Muslim communities
  • DOJ will be forced to give far more defendants 702 notice

The thing is, 11 months after the release of that opinion, we’re still not seeing results — in the form of declassified opinions — of what FBI’s querying really looks like, once they’re forced to actually track it. The entirely of this 2019 opinion still shows what Boasberg considers the pre-implementation period for this reporting regime.

And the FBI has been trying to weaken it for two years now!

There’s one more indication that we may see troubling details once we get the next 702 opinion in a year’s time, if we do get it.

Less than a week ago, Billy Barr issued a memo imposing a new national security auditing function on the FBI.

To enhance the FBI’s existing compliance efforts, the Director of the FBI is taking steps to build a more robust and exacting internal audit capability, including the creation of an office focused on auditing the FBI’s national security activities. To support that effort, I hereby authorize the Director of the FBI to commence the process of establishing, consistent with law and policy, the Office ofInternal Auditing (“OIA”). A separate office devoted to internal auditing and headed by a senior FBI official will ensure that ri gorous and robust auditing, which is an essential ingredient to an effective compliance regime, is canied out. The FBI shall work with the Justice Management Division to make the required reorganization notifications regarding this new office. Once established, OJA shall be led by an Assistant Director who shall have the same reporting chain as the Assistant Director for OIC and the Assistant Director for INSD. The Director of the FBI shall appoint the Assistant Directors for OIC, INSD, and OIA, with the approval of the Deputy Attorney General.

OIC, INSD, and OIA shall be responsible for carrying out the internal compliance functions of the FBI as assigned by the Director of the FBI, who shall ensure that each office does not duplicate responsibilities and is adequately staffed to perform its assigned functions. The Deputy Attorney General and the Assistant Attorney General for Administration shall coordinate with the Director to ensure that those functions are resourced and funded appropriately.

Even though Barr says the newly created OIA won’t overlap with the compliance and inspection functions at FBI, it’s not clear why not. Further, Barr’s memo does not explicitly say why FBI needed a new compliance review for national security cases rather than the existing legal reviews that had conducted such review.

Don’t get me wrong, done correctly, this could be a long-needed reform. It’s not clear it is being done correctly. It seems partly timed to the elections (with a report on implementation due just before then). And DOJ IG — which has, historically, found abundant problems with the functions enumerated here — will not review the efficacy of this until around May 2022.

The Department ofJustice Inspector General has agreed to assess the implementation of this memorandum (“initial assessment”) no sooner than 18 months after the establishment of OIA and to report such assessment, consistent with the Inspector General Act, to the Attorney General, Deputy Attorney General, Director of the FBI, and Assistant Attorney General for National Security. The Inspector General has furt her agreed to conduct a subsequent assessment no later than five years after the initial assessment, and periodically thereafter as determined by the Inspector General, and to report such assessments, consistent with the Inspector General Act, to the Attorney General, Deputy Attorney General, Director of the FBI, and Assistant Attorney General for National Security.

Within 60 days of the date of the Inspector General’s initial assessment, the Director of the FBI shall provide the Attorney General and Deputy Attorney General an assessment of the implementation of this memorandum, including an assessment of the effectiveness of the FBI’s compliance structure and whether compliance functions should be consolidated under an Executive Assistant Director.

Which is to say, this initiative, while it may be long overdue, feels like Barr trying to get ahead of something or somethings.

Billy Barr is an authoritarian. He doesn’t care about surveillance (indeed, he’s the grandfather of the dragnets that Edward Snowden revealed).

But something must have led him to take action to make it look like he cares.

Timeline

March 24-27, 2017: The querying of 70K facilities “associated with” persons who had access to the FBI’s facilities and systems. FBI General Counsel (then run by Jim Baker, who had had these fights in the past) warned against the query, but FBI did it anyway, though did not access the communications. This was likely either a leak or a counterintelligence investigation and appears to have been discovered in a review of existing Insider Threat queries.

December 1, 2017: FBI conducted queries on 6,800 social security numbers.

December 7-11, 2017, the same entity at FBI also queried 1,600 queries on certain identifiers, though claimed they didn’t mean to access raw data.

February 5 and 23, 2018: FBI did approximately 30 queries of potential sources.

February 21, 2018: FBI did 45 queries on people being vetted as sources.

March 27, 2018: Initial 2018 package submitted.

April 5, 2018: Extension order.

Before April 13, 2018: an unspecified FBI unit queried FISA acquired metadata using 57,000 identifiers of people who work in some place.

October 17, 2018: Order finding FBI querying procedures do not comply with FISA.

February 21, 2019: NSA submits notice of Upstream violations.

February 26, 2019: Date after which NSA fixes Upstream violations.

June 2019: Oversight review finds violations of querying rules, including to vet a source, a candidate to be a local cop, and to find information about a planned visit by foreign officials.

June 26, 2019: Notice that CIA assistance to NCTC does not comply with rules.

July 2019: Oversight review finds violations of querying rules, including of college students in a “Collegiate Academy” and individuals who visited an FBI office. 

July 12, 2019: FISCR opinion finding that FBI querying procedures do not comply with FISA.

August 2019: Query of 16,000 persons identifies seven leads. 

August 12, 2019: FBI submits new querying procedures.

August 23, 2019: NSA complains about post-tasking for some collections.

September 4, 2019: Approval of amended FBI querying procedures.

September 6, 2019: Report of July 2019 query violations.

September 13, 2019: Notice regarding 702 query response showing 100 characters of text surrounding search term.

September 17, 2019: Application submitted, including proposed improvements on targeting procedures.

September 17, 2019: Notice of at least four querying violations involving taking steps to access 702 products without getting a warrant.

September 18, 2019: Report on June 2019 query violations.

September 20, 2019: Reports of other FBI querying violations, including to vet sources, to search on complainants, and to vet potential cops.

September 26, 2019: 45-day report on fulfilling FBI query rules.

October 1, 2019: Review period extended to December 16, 2019 (because of NSA and NCTC compliance issues, not FBI ones).

October 3, 2019: FISC orders further information.

October 4, 2019: FBI requests relief from requirement to report 702 access in response to criminal search.

October 10, 2019: Notice of overly attenuated NSA queries, including content searches using 23 US person identifiers.

October 11, 2019: Notice on FBI violations tied to not opting out of including FISA in searches.

November 4, November 13, 2019: Government provides additional information.

November 8, 2019: 45-day report on fulfilling FBI query rules.

November 14, 2019: Notice on violations tied to not opting out of including FISA in searches.

November 20, 2019: Government tells FISC that they never tried to comply with reporting requirement imposed in October 2018, are instead training their new proposed compliance method.

November 25, 2019: Notice regarding August 2019 mass query.

mid-December 2019: Date FBI promised to impose new record-keeping on FBI’s queries.

January 2020: Date NSA promised to have purged improperly acquired communications.

Treasury Threatens to Prosecute Reporters Trying to Reveal What Rod Rosenstein and Richard Burr Would Not

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WikiLeaks supporters like to claim the May 2019 superseding indictment against Assange uniquely threatens journalism by treating routine journalistic activities — such as requesting sensitive information — as part of a conspiracy to leak.* That’s not entirely true.

As I’ve noted, well before Assange’s superseding indictment, in October 2018, DOJ charged Natalie Sours Edwards — one of several presumed sources for a series of BuzzFeed stories on Suspicious Activities Reports pertaining to those investigated for their ties to Russia — in such a way to treat Jason Leopold as a co-conspirator. Both the complaint justifying her arrest and the indictment include a conspiracy charge that describes how Edwards (and another unindicted co-conspirator) worked with Reporter-1, including one request pertaining to Prevezon captured on Signal.

c. As noted above, the October 2018 Article regarded, among other things, Prevezon and the Investment Company. As recently as September 2018, EDWARDS and Reporter-1 engaged in the following conversation, via the Encrypted Application, in relevant part:

EDWARDS: I am not getting any hits on [the CEO of the Investment Company] do you have any idea what the association is if I had more information i could search in different areas

Reporter-1: If not on his name it would be [the Investment Company]. That’s the only other one [The CEO] is associated with Prevezon Well not associated His company is [the Investment Company]

On January 13, Edwards pled guilty to one charge, the conspiracy one, though without any sign of cooperation.

In fact, Edwards is not the only case charged like this. While he was charged after Assange’s superseding indictment, Henry Frese, a DIA analyst who leaked reports on China to some NBC reporters, was not just charged in a similar conspiracy charge, but was wiretapped to collect evidence implicating the reporters. Because he cooperated, there’s little to prevent Trump’s DOJ from charging the journalists after the election except Trump’s well-established support for an adversarial press.

The way in which DOJ charged Edwards has become newly critical given an announcement Treasury made yesterday, in the wake of reports about how Donald Trump was never investigated for his financial vulnerability to Russia. The unit of Treasury that collects and analyzes Suspicious Activity Reports released a statement threatening “various media outlets” who were planning to publish stories on SARs.

The Financial Crimes Enforcement Network (FinCEN) is aware that various media outlets intend to publish a series of articles based on unlawfully disclosed Suspicious Activity Reports (SARs), as well as other sensitive government documents, from several years ago.  As FinCEN has stated previously, the unauthorized disclosure of SARs is a crime that can impact the national security of the United States, compromise law enforcement investigations, and threaten the safety and security of the institutions and individuals who file such reports.  FinCEN has referred this matter to the U.S. Department of Justice and the U.S. Department of the Treasury’s Office of Inspector General.

BuzzFeed has always treated their source for the Treasury story as a whistleblower, reporting not just a dispute over access to reports for intelligence reports, but also on the damning Russian information that got ignored.

As Edwards has moved closer to sentencing, she developed irreconcilable differences with her original attorneys over what she called a coerced guilty plea. And documents filed in the case provide some explanation why.

While the substance of her appeal is not entirely clear, it’s clear that she claimed legal access to certain documents — presumably SARs — as a whistleblower.

In the appellants “official capacity” as a government employee from 2015-Jan 2020 and as a whistleblower from 2015 to current, the specific documents were used during the Congressional Request Inquires & Letters from 2015-2018, the Office of Special Counsel’s investigations from 2017-2020 and the appellants legal access to the exculpatory material from 2018 to current per 31 C.F.R. § 103 “official disclosures responsive to a request from an appropriate Congressional committee or subcommittees; and prosecutorial disclosures mandated by statute or the Constitution, in connection with the statement of a government witness to be called at trial, the impeachment of a government witness, or as material exculpatory of a criminal defendant.1

As a government employee I could disclose any information in a SAR (including information in supporting documentation) to anyone, up to and including the person who is the subject of the SAR, so long as the disclosure was “necessary to fulfill the official duties of such officer or employee”2 which I did as a whistleblower and as an employee; however, once I medically resigned, 31 C.F.R. § 103 provided the legal exculpatory material as a whistleblower, administrative appellate and criminal defendant to disclose the information in court proceedings. Furthermore, the appellant was adhering to the courts upholding that disclosures must be specific and detailed, not vague allegations of wrongdoing regarding broad or imprecise matters. Linder v. Department of Justice, 122 M.S.P.R. 14, 14 (2014); Keefer v. Department of Agriculture, 82 M.S.P.R. 687, 10 (1999); Padilla v. Department of the Air Force, 55 M.S.P.R. 540, 543– 44 (1992).

After she tried to use the documents in her appeal of a whistleblower complaint, the Treasury Department Inspector General shared them with the prosecutors in her case, who in turn cited them in her presentencing report.

The agency has argued throughout the appellant no longer is an employee of the agency, the pro se appellant agrees. The agency Inspector General should not have been notified of the administrative proceedings of the court because the appellant is not an employee of the agency. There is no statue or policy that gives the agency the right to notify the agency IG of the “procedural motion” prior “to notify the other party”. Regulation 5 C.F.R. § 1201.55(a) does not state “notify Inspector General” rather it does state “to notify the other party”. The pro se appellant argues notifying the Inspector General prior to “the other party” is a violation of the pro se appellants fifth amendment.

[snip]

[T]he agency/agency IG notified the appellants criminal prosecutors of the disclosures in the IRA case. As explained above, the disclosures are permissible per 31 C.F.R. § 103. Due to the agency/agency IG notification to the government prosecutors, the prosecution requested increased sentencing in the sentencing report for the appellant/defendant thus violating the defendants fifth amendment in the criminal proceeding.

Edwards further claimed that the government withheld her original complaint to coerce her to plead guilty.

The Federal Judge found merit and significant concerns in the “letter and substantial documentation” the whistleblower defendant/appellant provided to the court concerning violation of fifth amendment, conflict of interests pertaining to the prosecution/counsel, coercion of the plea deal, criminal referral submitted against agency IG, the letter defendant sent to Attorney General Sessions and Special Counsel Mueller, etc., all elements withheld from the Federal court by both the prosecution and defense counsel.

Edwards has been assigned a new attorney (who may have convinced her not to submit this complaint as part of sentencing), and her sentencing has been pushed out to October.

There’s no way to assess the validity of her complaint or even her representation of what happened with the judge in her case, Gregory Woods. What her complaint shows, however, is that there’s a packet of information she sent to Mueller and Sessions (possibly implicating and/or also sent to Congress), summarizing some reports she believes got ignored.

If those reports show what Rod Rosenstein and Richard Burr worked so hard not to investigate, it might explain why Treasury is threatening legal consequences for reporting on them. And given how DOJ already structured this prosecution, they might well be threatening to treat reporting on the President’s vulnerabilities as a conspiracy to leak SARs protected by statute.

*WikiLeaks supporters also cite the risk of Assange being subjected to US Espionage Act prosecution. While that risk is real, in his case, the most dangerous charges (for leaking the names of US and Coalition informants) would likely be far easier to prosecute under the UK’s Official Secrets Act, which still could happen if he’s not extradited. The actions described in his indictment are arguably more explicitly criminalized in the UK than the US, even if their sentences are not as draconian.

It’s Not the Four Year Old Counterintelligence Investigation intro Trump We Need to Be Most Worried About — It’s the Ones Bill Barr May Have Killed

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The other day, Mike Schmidt advertised a book by claiming that FBI never did any kind of counterintelligence investigation of Trump in parallel with the Mueller investigation. On Twitter, Andrew Weissmann debunked a key part (though not all) of that claim.

The aftermath has led to ongoing debates about what really happened. My guess is that Schmidt’s sources did not have visibility on the full scope of the Mueller investigation, and he didn’t read the Mueller Report, which would have helped him realize that. And while credible reports say Mueller didn’t investigate Trump’s historical financial ties to Russia (while I’ve read neither book yet, the excerpts of Jeff Toobin’s book adhere more closely to the public record than Schmidt’s), the public record also suggests Mueller obtained Trump-related records that most people don’t realize he obtained.

I reiterate that it is far more troubling that a co-equal branch of government — the one with impeachment power — chose not to pursue the same questions about Trump’s financial vulnerabilities to Russia. If you want to express outrage that no one has investigated whether Trump is beholden to Russia, focus some of it on Richard Burr, who suggested Trump’s financial vulnerability to Russia was irrelevant to a report specifically focused on counterintelligence threats.

Still, there’s something still more urgent, one that is getting lost in the debate about what happened three or four years ago.

There were, as of at least April, at least one and probably several investigations implicating counterintelligence tied to Trump, through his top associates. But they tie to the same cases that Billy Barr has undermined in systematic and unprecedented fashion in recent months. It is a far more pressing question whether Barr has undermined counterintelligence investigations implicating Trump’s ties to Russia by ensuring those who lied to protect him during the Mueller investigation face no consequences than what Rod Rosenstein did forty months ago.

Consider Mike Flynn. The most newsworthy thing Robert Mueller said — under oath — over the course of two congressional hearings is that “many elements of the FBI” were looking into the counterintelligence risks created by Mike Flynn’s lies about his communications with Russia.

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

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

KRISHNAMOORTHI: Currently?

MUELLER: Currently.

As part of Mueller’s analysis about whether Trump fired Jim Comey to stop the investigation into Flynn, he weighed whether the Flynn investigation implicated Trump personally. But he found — largely because Flynn and KT McFarland, after first telling similar lies to investigators, later professed no memory that Trump was in the loop regarding Flynn’s efforts to undercut sanctions with Sergey Kislyak, and Steve Bannon repeated a White House script saying he wasn’t — that the evidence was inconclusive.

As part of our investigation, we examined whether the President had a personal stake in the outcome of an investigation into Flynn-for example, whether the President was aware of Flynn’s communications with Kislyak close in time to when they occurred, such that the President knew that Flynn had lied to senior White House officials and that those lies had been passed on to the public. Some evidence suggests that the President knew about the existence and content of Flynn’s calls when they occurred, but the evidence is inconclusive and could not be relied upon to establish the President’s knowledge.

[snip]

But McFarland did not recall providing the President-Elect with Flynn’s read-out of his calls with Kislyak, and Flynn does not have a specific recollection of telling the President-Elect directly about the calls. Bannon also said he did not recall hearing about the calls from Flynn. And in February 2017, the President asked Flynn what was discussed on the calls and whether he had lied to the Vice President, suggesting that he did not already know. Our investigation accordingly did not produce evidence that established that the President knew about Flynn’s discussions of sanctions before the Department of Justice notified the White House of those discussions in late January 2017.

We’ve since seen transcripts that show Mike Flynn telling Sergey Kislyak in real time that Trump was aware of the communications between the two (and John Ratcliffe is withholding at least one transcript of a call between the men).

FLYNN: and, you know, we are not going to agree on everything, you know that, but, but I think that we have a lot of things in common. A lot. And we have to figure out how, how to achieve those things, you know and, and be smart about it and, uh, uh, keep the temperature down globally, as well as not just, you know, here, here in the United States and also over in, in Russia.

KISLYAK: yeah.

FLYNN: But globally l want to keep the temperature down and we can do this ifwe are smart about it.

KISLYAK: You’re absolutely right.

FLYNN: I haven’t gotten, I haven’t gotten a, uh, confirmation on the, on the, uh, secure VTC yet, but the, but the boss is aware and so please convey that. [my emphasis]

Certainly, Russia would have reason to believe that Flynn’s efforts to undermine sanctions were directed by Trump.

In January, a sentencing memo that was delayed so it could be approved by the entire chain of command at DOJ, explained why all this was significant.

Any effort to undermine the recently imposed sanctions, which were enacted to punish the Russian government for interfering in the 2016 election, could have been evidence of links or coordination between the Trump Campaign and Russia. Accordingly, determining the extent of the defendant’s actions, why the defendant took such actions, and at whose direction he took those actions, were critical to the FBI’s counterintelligence investigation.

[snip]

It was material to the FBI’s counterintelligence investigation to know the full extent of the defendant’s communications with the Russian Ambassador, and why he lied to the FBI about those communications.

Flynn’s forgetfulness about whether Trump ordered him to undermine sanctions went to the core question of whether Trump worked with Russia in their efforts to throw him the election.

And that sentencing memo was the moment when Billy Barr threw two different lawyers — one a lifetime associate of his — into the project of creating a false excuse to undermine the prosecution of Flynn. More recently, Acting Solicitor General Jeffrey Wall told the DC Circuit that Barr had secret reasons for overturning the prosecution.

The Attorney General of course sees this in a context of non-public information from other investigations.

[snip]

I just want to make clear that it may be possible that the Attorney General had before him information that he was not able to share with the court and so what we put in front of the court were the reasons that we could, but it may not be the whole picture available to the Executive Branch.

[snip]

It’s just we gave three reasons; one of them was that the interests of justice were not longer served, in the Attorney General’s judgment, by the prosecution. The Attorney General made that decision, or that judgment, on the basis of lots of information, some of it is public and fleshed out in the motion, some of it is not.

This secret reason is why, Wall suggested, it would cause irreparable harm for DOJ to have to show up before Judge Emmet Sullivan and explain why DOJ blew up the prosecution.

Then there’s Roger Stone. Stone very loudly claimed (improbably) that he could have avoided prison had he not lied to protect Donald Trump. And Trump rewarded him for it, commuting his sentence to ensure he didn’t spend a day in prison.

But at least as of April, an investigation into whether Stone was part of a conspiracy with Russia and/or was a Russian agent — implicating 18 USC 951, not just FARA — was ongoing. Among the things Stone was involved in that Trump refused to answer Mueller questions about was a pardon for Julian Assange, one Stone started pursuing at least as early as November 15. While no sentencing memo has explained this (as it did with Mike Flynn), whether Trump and Stone used promises of a pardon to get Assange to optimize the WikiLeaks releases goes to the core question of whether there was a quid pro quo as part of 2016.

Finally, there’s Paul Manafort, whose close associates, the SSCI Report makes clear, were part of GRU and appear to have had a role in the hack-and-leak. After securing a cooperation deal, Manafort changed his story, and then shared details of what Mueller’s team knew with the President.

Yet, even with Manafort’s ties to the effort to steal our election, the Attorney General used COVID relief to ensure that Manafort would escape prison.

While it’s not clear whether John Ratcliffe, Barr, or the IC made the decision, the redaction process of the SSCI report denied voters the ability to know how closely tied Trump’s campaign manager is with the people who helped steal the election. What we do know is the effort Manafort started continues in Trump’s efforts to extort Ukraine and spew Russian disinformation.

For all three of the Trump associates where we know Barr intervened (there’s good reason to suspect he intervened in an Erik Prince prosecution, too), those people implicate Trump directly in counterintelligence investigations that were, fairly recently, ongoing.

Whether or not there was a counterintelligence investigation implicating Trump on May 20, 2017, after Rod Rosenstein scoped the Mueller investigation, we know counterintelligence investigations have implicated him since. What we don’t know is whether, in an effort to help Trump get reelected, his fixer Billy Barr squelched those, too.

Update: In an appearance for his book, Schmidt said he considered writing it (in 2020) about just the first 26 days of his presidency. It’s a telling comment given that his description of what happened with counterintelligence doesn’t accord with what the Mueller Report itself said happened around 500 days into Trump’s presidency.

Trump Told One Key Truth at His Convention

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CNN had a funny story the other day. It described how five different RNC speakers — it focuses on Natalie Harp (who lied about receiving treatment under the Right to Try Act), Mark and Patricia McCloskey (who threatened protestors with their guns), Abby Johnson (whose story about abortion and spousal voting fell apart), and Mary Ann Mendoza (who got cut after spewing an anti-semitic conspiracy theory) — were so crazy, it suggests the Republicans didn’t vet their speakers.

The appearances of several speakers at this week’s Republican National Convention have been surrounded by controversy over social media comments and actions from their past, raising questions about whether and how the RNC vetted its speakers before they were placed on national television.

The story is funny, in part, because it left out the bigger name controversial speakers, like Rudy Giuliani, whose conspiracy theories are every bit as baseless as Mendoza’s, and who is reportedly under criminal investigation for the circumstances behind them) or Eric Trump, who is currently defying a New York State subpoena on the grounds that testifying truthfully about Trump Organization’s accounting irregularities would incriminate him. Which makes the premise even funnier: One controversial speaker is a vetting problem, seven (the number is actually much higher) is an intentional choice.

And yet the press has interpreted Trump’s failures to play by norms they believe remain in place as a goof, simply poor execution of a known formula.

A more alarming example comes in this NYT story. It sums up what it views as the themes the two parties are using, along the way repeating Trump’s claimed theme of “law-and-order” five times.

COVID vs. Law and Order

[snip]

the President is hammering a law-and-order message

[snip]

The moves come as the presidential campaign barrels into the critical last 10 weeks. They represent a bet by Mr. Biden that a focus on Covid-19 will prevail over Mr. Trump’s “law and order” emphasis and his attempt to portray Mr. Biden as a tool of the “radical left.”

[snip]

Aides to Mr. Trump said on Friday that their line of attack would not change. They plan to repeatedly highlight Mr. Trump’s familiar “law and order” message, and are blunt in their assessment that they will benefit politically from violence erupting at some protests.

[snip]

Mr. Trump’s aides said he enjoyed the frustration and anger he caused by holding a political event on the South Lawn of the White House, shattering conventional norms and raising questions about ethics law violations. He relished the fact that no one could do anything to stop him, said the aides, who spoke anonymously to discuss internal conversations.

Even assuming NYT describes these themes correctly (it doesn’t mention “competence,” for example), it totally misreads what happened at the Trump convention. It treats the RNC as a thematically organized event, rather than a raw display of power, power premised on dismantling any logic of themes.

While this extends to every logical claim Trump made at the RNC — from his claim that COVID is a thing of the past and his celebration of immigrants lured to participate in the RNC unwittingly — it was most visible in his claim to care in the least about law and order, the theme reporters claimed to be the central backbone of Trump’s campaign.

This is a man, after all, who has had two campaign managers and five other aides indicted or prosecuted, most in the service of protecting Trump. Two separate legal proceedings in New York State are pursuing financial crimes implicating Trump and his business (as noted, RNC speaker Eric Trump is currently defying subpoenas, claiming that his truthful testimony will implicate himself in crimes). And during his last campaign, Trump was implicated in two more crimes, the hush payments to his former sex partners and the misuse of his Foundation. There are active lawsuits from women credibly accusing Trump of sex crimes. It’s likely the only thing protecting Trump from prosecution for these crimes and obstruction of the Mueller probe is his success at winning another term. Meanwhile, the woman who shattered all prior norms about the Hatch Act, Kellyanne Conway, completed her service to Trump by admitting more violence would help Trump’s campaign.

And yet the NYT treats Trump’s “law and order” theme as a credible political claim.

The only mention from this purported news story that Trump’s convention was a televised crime spree of its own accord came in describing the glee with which Trump’s aides enjoyed watching Trump commit crimes, which the NYT instead describes as “raising questions about ethics law violations,” with impunity.

Mr. Trump’s aides said he enjoyed the frustration and anger he caused by holding a political event on the South Lawn of the White House, shattering conventional norms and raising questions about ethics law violations. He relished the fact that no one could do anything to stop him, said the aides, who spoke anonymously to discuss internal conversations.

This is not (as it would be in a minimally competent story) a fact check, a discussion of how absurd it was that the most criminally implicated President in history was instead running as the “law and order” candidate. It is, instead, an unexamined nugget of the key truth.

Trump’s aides are gleeful that his defiance of the law during a convention where he claimed to be the “law and order” candidate caused so much consternation. They relish the way he could commit crimes in broad daylight without anyone stopping him.

That is, the theme is not “law and order,” as NYT gullibly parroted. Trump’s campaign promise is the complete dismantlement of rule of law, where a candidate whose potential and confirmed crimes are too numerous to track could condemn the crimes and criminalized peaceful speech of his opponents, while failing to condemn murder committed by a supporter, all while claiming this selective enforcement amounted to “law and order.”

The point is not the theme. It’s partly that a small pack of NYT journalists might collectively repeat it as if it’s true, without instead describing the grave danger posed to democracy when a man who has systematically attacked rule of law rebrands that assault as law and order. Trump has successfully recruited those whose business is supposed to be truth-telling, and gotten them to instead reinforce his central lie, that his abuse of the law is something called “law and order.” And it is, more significantly, that while less negligent journalists were trying to push back on Trump’s deluge of lies, he was instead telling the key truth. Trump’s campaign message is not whatever theme some horse race journalists discern from ad buys. Rather, it is a promise — with his defiance of rule of law, his abdication of any platform save his own whims, his assault on the sanctity of the election, his incitement of violence — that in a second term Trump will forgo any past pretense he made to be engaged in democracy.

Trump’s convention was all designed to perform his utter contempt for democracy itself. And it succeeded, wildly, at telling that one key truth.

Even after Learning the FBI Was Investigating, Trump Berated Flynn for Not Being Obsequious Enough to Putin

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The Independent has a story that is being taken as news: That Trump berated then National Security Advisor Mike Flynn in from of Theresa May for not telling him that Vladimir Putin had called.

Theresa May’s former Chief of Staff, Nick Timothy, described Trump shouting in the middle of a formal luncheon.

Mr Timothy spoke about a “fairly extraordinary” lunch during which Mr Trump shouted at his then-national security advisor Michael Flynn.

“Somebody just mentioned in passing that Vladimir Putin had asked for a call with him, and right in front us he absolutely shouted down Mike Flynn,” he said.

“Like really shouted. This was at a formal dinner with butlers and fancy crockery – and he was properly shouting at him down the table.”

Mr Timothy said the president yelled: “If Putin wants a call with me you just put him through.”

It’s not actually a new story. Trump told a version of the story himself in real time, to Jim Comey, at the same dinner where he asked for loyalty from the FBI Director. According to Jim Comey’s memo memorializing the January 27 dinner, Trump raised the incident in an attempt to convince Comey that he, Trump, believed Flynn had poor judgment.

He then went on to explain that he has serious reservations about Mike Flynn’s judgement and illustrated with a story from that day in which the President apparently discovered during his toast to Teresa May that [Putin] had called four days ago. Apparently, as the President was toasting PM May, he was explaining that she had been the first to call him after his inauguration and Flynn interrupted to say that [Putin] had called (first, apparently). It was then that the President learned of [Putin’s call] and he confronted Flynn about it (not clear whether that was in the moment or after the lunch with PM May). Flynn said the return call was scheduled for Saturday, which prompted a heated reply from the President that six days was not an appropriate period of time to return a call from the [President] of a country like [Russia]. This isn’t [redacted] we are talking about.”) He said that if he called [redacted] and didn’t get a return call for six days he would be very upset. In telling the story, the President pointed his fingers at his head and said “the guy has serious judgment issues.”

But the differences in the story — with Timothy emphasizing that Trump was pissed for not putting Trump on the phone with Putin immediately, as compared to Trump’s claim that he was pissed because Flynn scheduled the return call six whole days later — are notable (if subtle), particularly when read in context.

We’ve known for some time that Sergey Kislyak first started tying to schedule a call between Trump and Putin during his December 29, 2016 call with Flynn, when Flynn asked Russia to keep any retaliation against US sanctions measured; the meeting itself was even mentioned in the original David Ignatius column that revealed the call. But we now have some of the transcripts of those calls. Those transcripts show how Kislyak pitched the meeting — and the January 21 date — even before Flynn raised the sanctions (Kislyak was also pushing for public US participation in a Turkish-Russian “peace” initiative on Syria to be held the first week of the Administration, something else included in KT McFarland’s cover story for the call).

KISLYAK: I mean heads up, we wanted you to know this. And the third final uh, point, General, is uh, I am entrust to convey through you to Seer- uh to President Elect, proposal from the Kremlin. Maybe to organize a conversation over the secure video line that starting on the twentieth would be available to Mr. Trump. And it’s there, certainly, uh – uh, between the White House and the Kremlin. And our proposal is to have the conversation on the twenty.first between our Presidents. And the idea of Mr. Putin is first of all to congratulate uh, your President Elect or the President, at the time, and maybe to discuss small number~ briefly, of issues that are on our agenda. So his proposal is on the twenty-first of January.

FLYNN: Okay. Ummm

[Timestamp: 05:20]

KISLYAK: Is by security video. Secure video line.

Then, on December 31, after Kislyak told Flynn that Putin had considered Flynn’s request not to escalate before deciding not to even respond, Flynn offered up that “the boss is aware” of the request for a January 21 secure call. Flynn acknowledged Kislyak was trying to schedule it for the day after the inauguration, but did not commit to that date.

FLYNN: I haven’t gotten, I haven’t gotten a, uh, confirmation on the, on the, uh, secure VTC yet, but the, but the boss is aware and so please convey that

KISL YAK: I will

FLYNN: And we can set that up Fairly quickly and well have at I don’t want to go through, I don’t want to go through a big, uh, uh, gyration of, you know, what is on the agenda. I think the agenda just needs to be a couple of simple things uh, and let the two talk about, let the two communicate if, if we end up having it on the 21st, if not

KISL YAK:

Absolutely, FLYNN: the 21st, then what we, we, uh, may end up, you know, sometime very close after just because other, other scheduled events, if that makes sense. Okay. [my emphasis]

Then, the day before inauguration, Kislyak left a message reiterating Russia’s request to speak “after the inauguration,” and reminding Flynn of their conversation — a conversation that had been revealed by David Ignatius, leading Flynn to start lying publicly about the request he had made on it.

KISLYAK: Good morning, General. This [sic] Sergey Kislyak, Russian ambassador. I, uh, apologize that I disturb you but I wanted to check whether you have, um, uh, answer to the idea of our two presidents speaking, uh, re-… uh, after the inauguration. You remember our conversation and we certainly would appreciate any indication as to when it is going to be possible. Uh, I would appreciate your calling back and telling me where we are. Thank you so much. All the best.

And then, according to the public story, Putin called to congratulate Trump on January 21, the call for January 28 got scheduled at some point, and on January 27, Trump had a public meltdown about how all that had gone down. In both versions of the story, Trump was pissed that Flynn hadn’t been responsive enough to Putin. In Trump’s version, however, he claimed to be unaware Putin wanted to call on January 21; Mike Flynn told Kislyak he knew of that all along (and the public record shows that Trump knew that Putin placed the call no later than a presser immediately before the lunch in question).

What happened the day before is instructive. On January 26, 2017, the day before Trump had an embarrassing meltdown because his National Security Advisor wasn’t prioritizing a call with Vladimir Putin that Trump first learned about — in the context of secret requests of Russia — weeks earlier, Trump learned that the FBI not only knew of the calls with Kislyak, but knew the substance of his calls with the Russian Ambassador. Trump learned that the FBI found those calls — in one of which Flynn affirmed that Trump knew of the call request — problematic.

On January 26, 2017, Acting Attorney General Sally Yates contacted White House Counsel Donald McGahn and informed him that she needed to discuss a sensitive matter with him in person. 142 Later that day, Yates and Mary McCord, a senior national security official at the Department of Justice, met at the White House with McGahn and White House Counsel’s Office attorney James Burnham. 143 Yates said that the public statements made by the Vice President denying that Flynn and Kislyak discussed sanctions were not true and put Flynn in a potentially compromised position because the Russians would know he had lied. 144 Yates disclosed that Flynn had been interviewed by the FBI. 145 She declined to answer a specific question about how Flynn had performed during that interview, 146 but she indicated that Flynn’s statements to the FBI were similar to the statements he had made to Pence and Spicer denying that he had discussed sanctions.147 McGahn came away from the meeting with the impression that the FBI had not pinned Flynn down in lies, 148 but he asked John Eisenberg, who served as legal advisor to the National Security Council, to examine potential legal issues raised by Flynn’s FBI interview and his contacts with Kislyak. 149

That afternoon, McGahn notified the President that Yates had come to the White House to discuss concerns about Flynn.150 McGahn described what Yates had told him, and the President asked him to repeat it, so he did. 151 McGahn recalled that when he described the FBI interview of Flynn, he said that Flynn did not disclose having discussed sanctions with Kislyak, but that there may not have been a clear violation of 18 U.S.C. § 1001. 152 The President asked about Section 1001, and McGahn explained the law to him, and also explained the Logan Act. 153 The President instructed McGahn to work with Priebus and Bannon to look into the matter further and directed that they not discuss it with any other officials. 154 Priebus recalled that the President was angry with Flynn in light of what Yates had told the White House and said, “not again, this guy, this stuff.” 155

When telling the FBI Director about Flynn’s failures to set up a call with Putin on January 21 that Putin’s Ambassador had asked for in the very same call where Trump’s National Security Advisor had made an ask that undermined Obama’s punishment of Russia for tampering in American democracy, Trump described it (in the same conversation where he asked Comey for loyalty) as poor judgment.

It’s unclear why Trump did that, in a dinner meeting fairly obviously designed to undermine FBI scrutiny of why Flynn did what he did.

But if Trump believed that Flynn exercised poor judgment, it would mean he judged that Flynn should have made good on the request that Kislyak made in the same call where Trump , via Flynn, made a request. It would have meant, in context, that Trump believed Flynn should have showed more subservience to Putin.

There’s Lots of Reason to Think Steve Bannon Lied; But He May Also Have Told the Truth, Once

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The LAT has a big scoop on some criminal referrals the Senate Intelligence Committee made on July 19, 2019. The biggest news is that SSCI referred Steve Bannon for his unconvincing story about his Russian back channel — though it’s likely that Bannon cleaned up that testimony in January 2019.

Don Jr

The LAT describes that the Committee believed that the Trump spawn lied about when they learned about the Aras Agalarov meeting.

In the two page-letter, the committee raised concerns that testimony given to it by the president’s family and advisors contradicted what Rick Gates, the former deputy campaign chairman, told the Special Counsel about when people within the Trump campaign knew about a June 9 meeting at Trump tower with a Russian lawyer.

This conflict in stories was previously known; it shows up in the Mueller Report.

It’s interesting primarily because the referral took place after Don Jr’s second SSCI interview, which was on June 12, 2019. It stands to reason that the failson’s willingness to sit for a second interview with SSCI — but not any interview with Mueller — strongly suggests that he had reason to know that Mueller had evidence that SSCI did not. If the only thing that SSCI believed Don Jr lied about was the June 9 meeting, then it suggests they did not know Mueller’s full focus.

Sam Clovis

LAT also says that SSCI believes Clovis lied about his relationship with Peter Smith, the old Republican rat-fucker who made considerable effort to find Hillary’s deleted emails.

The committee also asked the Justice Department to investigate Sam Clovis, a former co-chairman of the Trump campaign, for possibly lying about his interactions with Peter W. Smith, a Republican donor who led a secret effort to obtain former Secretary of State Hillary Clinton’s missing emails.

Clovis could not be reached.

That Clovis lied is not surprising — it’s obvious from the interview reports released thus far in the BuzzFeed FOIA that his story changed radically over the course of a few hours. Notably, however, SSCI only referred Clovis for lying about Peter Smith. It’s pretty clear that Clovis also lied, at least at first, about the campaign’s willingness to cozy up to Russia.

There are four redacted descriptions of people who lied to Mueller in the Report; one of those may explain why Clovis was not charged.

Note that Clovis’ lack of candor about other topics makes his denials that George Papadopoulos told him about the email warning equally dubious.

Erik Prince and Steve Bannon

Finally, the story says SSCI referred Erik Prince and Steve Bannon for their conflicting stories about their back channel to Kirill Dmitriev.

According to the letter, the committee believed Bannon may have lied about his interactions with Erik Prince, a private security contractor; Rick Gerson, a hedge fund manager; and Kirill Dmitriev, the head of a Russian sovereign fund.

It is well-established that Prince lied (indeed, HPSCI also referred his testimony). His lawyer made similar denials to the LAT as he has made elsewhere.

Matthew L. Schwartz, a lawyer for Prince, defended his client’s cooperation with Capitol Hill and Mueller’s office.

“There is nothing new for the Department of Justice to consider, nor is there any reason to question the Special Counsel’s decision to credit Mr. Prince and rely on him in drafting its report,” he said.

Given that DOJ turned over an email from Schwartz to Aaron Zelinsky in response to a FOIA in the Stone case, it’s clear both that Prince was being investigated for issues beyond just his lies about the Russian back channel, but also that it’s likely that Billy Barr interfered with that investigation while he was “fixing” the Mike Flynn and Roger Stone ones, as well.

That’s interesting because SSCI referred Bannon as well.

Like everyone else, it’s not news that he shaded the truth at first. Bannon was scripted by the White House to deny discussing sanctions prior to Mike Flynn’s call to Sergei Kislyak. Bannon’s efforts to shade the trute were apparent from one of his early 302s. A Stone warrant affidavit describes Bannon denying his conversations with Roger Stone about WikiLeaks before he admitted at least one.

When BANNON spoke with investigators during a voluntary proffer on February 14, 201’8, he initially denied knowing whether the October 4, 2016 email to STONE was about WikiLeaks. Upon further questioning, BANNON acknowledged that he was asking STONE about WikiLeaks, because he had heard that STONE had a channel to ASSANGE, and BANNON had been hoping for releases of damaging information that morning.

And for Bannon’s fourth known Mueller interview, he got a proffer, suggesting his testimony changed in ways that might have implicated him in a crime.

What’s most interesting, given how everyone agrees his testimony and Prince’s materially differ, is that he testified to things before the grand jury he subsequently tried to back off. More interesting still, only the relevant parts of Bannon’s grand jury testify got shared with Stone. That means other parts — presumably, given the proffer agreement, the more legally damning parts — remain secret.

SSCI believes that Bannon may have lied to the committee.

But unlike all the others listed here, there’s reason to believe Bannon may also have told the truth to the grand jury, once, possibly relating to his actions involving Erik Prince.

That all may be moot if Barr managed to squelch any Prince investigation while he was negating the Stone and Flynn prosecutions. But he can’t entirely eliminate grand jury testimony.

Horowitz

DOJ’s Accounting of Its FISA Errors Cannot Be Compared to the Carter Page Report

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Last year, Bill Barr adopted the stance that Inspector General Michael Horowitz’s assessment of FISA — in the report on the Carter Page FISA applications — wasn’t strict enough, because it found no evidence that the errors in the applications arose from political bias. Last week, Bill Barr’s DOJ adopted the opposite stance, that DOJ IG was too critical of FISA, finding errors in the FBI process where there were none.

It did so in the second of two filings reviewing the errors that DOJ IG had found in 29 other FISA applications. When DOJ IG released an interim report (MAM) describing those errors in March, it appeared to suggest that the level of error in the Carter Page applications — at least with respect to the Woods Files — was actually lower than what DOJ IG had found in the 25 applications.

Now, DOJ appears to be trying to claim — without basis — that that’s not the case.

Ahead of the release of the actual filing, DOJ and FBI orchestrated a press release last week, announcing that they would tell the court none of the errors identified by DOJ IG invalidated the probable cause finding for the 29 files. Predictably, both the responsible press and the frothy right (in stories that misunderstood the findings of either DOJ IG report and at times made errors about the FISA process), concluded that this review shows that Page’s application was uniquely bad.

Only after the press had jumped on that conclusion did DOJ release the filing (here’s the earlier one and here’s AAG John Demers’ statement in conjunction with last week’s release).

The filing makes it clear that it is impossible to draw any comparison between these findings about the earlier Carter Page ones (or even to declare — as many in the press have — that this filing proves DOJ’s FISA problems aren’t as bad as DOJ IG suggested).

That’s true for three reasons:

  • DOJ IG has not finished the kind of review on any of the 29 files it did for Page, and DOJ is not claiming it did either
  • DOJ used a dramatically different methodology for this Woods review than DOJ IG did for the Page review
  • DOJ effectively disagreed with DOJ IG’s findings for roughly 46% of the errors DOJ IG identified — and it’s not clear they explained to the FISA Court why they did so

Before I explain these, there’s a more important takeaway.

In giving itself a clean bill of health, DOJ judged that it doesn’t matter that a 2016 FISA application claimed that one of their sources accused a person of sympathizing with a particular terrorist organization when in fact the source said the person had become sympathetic to radical Muslim causes. For the purposes of FISA, this is a huge distinction, because a terrorist organization counts as a foreign power for the sake of FISA, but radical Muslim causes do not. It’s the difference between targeting someone as a suspected agent of a foreign power and targeting them for First Amendment protected activities. DOJ said this error didn’t matter because there was so much other derogatory information against the target; whether that’s true or not, it remains the case that DOJ’s self-congratulation nevertheless admits to a key First Amendment problem in one of the applications.

Woods violations are different from significant inaccuracies are different from material inaccuracies are different from probable cause

As I explained in this post, the IG Report on Carter Page found two types of problems: 17 “significant inaccuracies” that were mostly errors of omission (see PDF 12 and 14-15 for a list), and Woods file errors (PDF 460ff) for which an assertion made in the application did not have or match the back-up in the accuracy file that is supposed to prove it. The “significant inaccuracies” are the more serious of the two, but a number of those were overblown and in a few cases, dubious, in the DOJ IG Report.

Both of those categories are different from material misstatements, of which DOJ admitted to a number by the time they withdrew the probable cause claim from the third and fourth, but not the first two, Page applications. Before the conclusion of the DOJ IG Report they had told the court of the following material misstatements:

  • July 12, 2018: Cover stories Papadopoulos gave to informants that FBI accurately assessed in real time as false, statements Bruce Ohr made that (in the slightly misrepresented form included in the DOJ IG Report) call into question Christopher Steele’s motives, admissions that Steele himself had spoken to the press
  • October 25, 2019 and November 27, 2019: Details about the actions of Kevin Clinesmith — first not disclosing and then altering a document to hide Page’s relationship with the CIA that covered some but not all of his willful sharing of non-public information with known Russian intelligence officers

It’s not clear the government specified which aspects of the DOJ IG Report it submitted to Rosemary Collyer in December 2019 it deemed material, but she focused on:

  • Statements made by Steele’s primary sub-source that undermined key claims about Page
  • Page’s denials (some proven true, some of still undetermined veracity) of details in the Steele dossier
  • Steele’s derogatory comments about Sergei Millian

On the scale of severity, the material misstatements are the ones that matter, because they’re the ones that will affect whether someone gets wiretapped or not. But the Woods file errors in the Carter Page report identified by DOJ IG describe just four (arguably, three) details even related to things ultimately deemed material which, in turn, led to the withdrawal of two of the applications. None directly described the core issues that led to the withdrawal of the two applications (though the Page denials in conjunction with the sub-source comments did).

Indeed, one key conclusion of this entire process — one that DOJ, DOJ IG, and FISC have all agreed with — is that the Woods files process is not very useful at finding the more important errors of omission of the kind that were the most serious problems in the Page application.

And that’s important because all three of these reports — the March DOJ IG MAM and the June and July responses to FISA — stem from, and only explicitly claim to address, Woods file errors. In its MAM, DOJ IG described what it called its “initial” review this way:

During this initial review, we have not made judgments about whether the errors or concerns we identified were material. Also, we do not speculate as to whether the potential errors would have influenced the decision to file the application or the FISC’s decision to approve the FISA application. In addition, our review was limited to assessing the FBI’s execution of its Woods Procedures, which are not focused on affirming the completeness of the information in FISA applications.

For its part, DOJ calls DOJ IG’s report “preliminary” (seemingly ignoring that the IG claimed in that MAM and claims on its website to be continuing this part of what it calls a preliminary part of a larger review of FISA). DOJ’s Office of Intelligence did do materiality reviews of both the errors DOJ IG found and some that it found in the process of compiling these reports (in addition to the CT material misstatement described above, it found what sounds like the omission of exculpatory statements in a CI case).

But all this amounts to the more basic of the two kinds of reviews that DOJ IG did in the Carter Page case.

For these reports, DOJ continued to use the accuracy review methodology it now agrees is inadequate

As noted, all parties now agree that the Woods procedure wasn’t doing what it was supposed to do. One reason it wasn’t is because the FBI has always given agents a few weeks notice before they review one of their Woods files, allowing them to scramble to fill out the accuracy file.

But DOJ IG (perfectly reasonably) didn’t give the Crossfire Hurricane team or any of the people involved in the 29 FISA applications it reviewed here that same notice. It conducted its Woods file assessment on what was actually in the accuracy file. In the case of the Carter Page review, they found a placeholder for a 302 that said exactly what DOJ IG faulted FBI for not having evidence for, an observation about how much Stefan Halper has been paid, and publicly available details about Gazprombank, among other true claims that were nevertheless not backed up in the Woods file. It would have been child’s play — but take some work — to get proof of those and most other claims in the file. The Woods file review that DOJ IG did in the Page case — and almost certainly, the review of the 29 files — tested whether the Woods procedures were being adhered to at all, not whether the Woods procedure effectively ensured only documented claims made it into a FISA application.

If you’re going to rely on the Woods procedure as an accuracy tool, that’s what reviews need to do, because otherwise they’re doing nothing to test the accuracy of the reports.

And DOJ now agrees. In its June filing, DOJ committed to changing how it does accuracy reviews starting in September (maybe). Starting then, agents will get no notice of a review before it happens, and the accuracy rate of that no-notice review will be tracked along with the accuracy once an agent is given time to chase down the documentation he didn’t include the first time.

NSD has determined that commencing with accuracy reviews starting after September 30, 2020, it will not inform the FBI field offices undergoing NSD oversight reviews which applications will be subjected to accuracy reviews in advance of those reviews. This date is subject to current operational limitations the coronavirus outbreak is imposing. NSD would not apply this change in practice to accuracy reviews conducted in response to a request to use FISA information in a criminal proceeding, given the need to identify particular information from particular collections that is subject to use. NSD also would not apply this change in practice to completeness reviews ( discussed further below); because of the pre-review coordination that is contemplated for those reviews.

NSD will expect that the relevant FBI field offices have ready, upon NSD’s arrival, the accuracy sub-files for the most recent applications for all FISAs seeking electronic surveillance or physical search. NSD will then, on its arrival, inform the FBI field office of the application(s) that will be subject to an accuracy review. If the case will also be subject to a completeness review, pre-coordination, as detailed below, will be necessary. The Government assesses that implementing this change in practice will encourage case agents in all FISA matters to be more vigilant about applying the accuracy procedures in their day-to-day work.

In addition, although NSD’s accuracy reviews allow NSD to assess individual compliance with the accuracy procedures, NSD’s historical practice has been to allow agents to obtain documentation during a review that may be missing from the accuracy sub-file. NSD only assesses the errors or omissions identified once the agent has been given the opportunity to gather any additional required documentation. While the Government believes that, in order to appropriately assess the accuracy of an application’s content, it should continue to allow agents to gather additional documentation during the accuracy review, it assesses that this historical practice has not allowed for the evaluation of how effective agents have been at complying with the requirement to maintain an accuracy sub-file, complete with all required documentation.

As a result, NSD will tally and report as a part of its accuracy review process all facts for which any documentation, or appropriate documentation, was not a part of the accuracy sub-file at the time the accuracy review commenced.

That said, that’s not how DOJ did these reviews. In fact, John Demers emphasized this fact in his statement claiming victory over these reviews.

In addition, when the OIG found a fact unsupported by a document in the Woods file, the OIG did not give the FBI the opportunity to locate a supporting document for the fact outside the file.

Indeed, that’s not the only thing that DOJ did to help DOJ clean up DOJ’s shitty performance on DOJ IG’s review of their work. After FBI Field Office lawyers got the DOJ IG assessment, they pulled together the existing documentation, then DOJ’s OI worked with agents to fill in what wasn’t there. In fact, DOJ even got an extension on the second report because DOJ and FBI agents were still working through the files, suggesting it took up to three months of work to get the files to where DOJ was willing to tell FISC about them.

In other words, whereas the Crossfire Hurricane team got judged — by Bill Barr’s DOJ — on what was in the Woods file when DOJ IG found it, Bill Barr’s DOJ is judging Bill Barr’s DOJ on what might be in a Woods file after agents have up to three months to look for paperwork to support claims they made as long as six years ago.

DOJ disagreed with DOJ IG’s finding of error about 46% of the time

Finally, DOJ and DOJ IG did not use the same categories of information to track errors on the Woods file reviews, and one of the most common ways they dismissed the import of an error was by saying that DOJ IG was wrong.

The MAM divides the errors it found into three categories: claims not supported by any documentation, claims not corroborated by the supposed back-up, and claims that were inconsistent with the supporting documentation.

[W]e identified facts stated in the FISA application that were: (a) not supported by any documentation in the Woods File, (b) not clearly corroborated by the supporting documentation in the Woods File, or (c) inconsistent with the supporting documentation in the Woods File.

In addition to the two material errors they found, DOJ claims the errors they found fall into five categories (described starting on page 10):

  • Non-material date errors
  • Non-material typographical errors
  • Non-material deviations from the source documentation
  • Non-material misidentified sources of information
  • Non-material facts lacking supporting documentation

But to get to that number, DOJ also weeded out a number of other problems identified by DOJ IG via three other categories of determination reflected in the up to three month back and forth with OI:

  • Claims made that were substantiated by documents added to the file after DOJ IG’s review
  • Claims that, after reviewing additional information, OI “determined that the application accurately stated or described the supporting documentation, or accurately summarized other assertions in the application that were supported by the accuracy subfile”
  • Claims not backed by any document, but for which “the supporting documentation taken as a whole provided support for the fact in the application”

DOJ doesn’t count those instances in its overview — as distinct from individual narratives — of the report (indeed, the scope of added documentation is not qualified at all). And while the DOJ fillings say FBI described that it added documentation to the file in the redacted FBI declaration for FISC, it’s not clear whether it told FISC what it added and how much and where and when it came from (FBI has been known to write 302s long after the fact to document events not otherwise documented in real time).

Here’s what all this looks like in one table (FBI did what is probably a similar table, but it’s classified). Note that DOJ IG used still different categories for the Carter Page review: “Supporting document does not state this fact,” which is probably the same as their “not clearly corroborated” category. In my table, I’ve counted that as a “lacking documentation error.”

There are several takeaways from this table.

First, the numerical discrepancy provides some idea of how many errors DOJ IG found that DOJ made go away either by finding documentation for them, or by deciding that DOJ IG was wrong. DOJ IG said it found an average of 20 errors in the 25 applications it was able to review, or 500 total. DOJ says it found 63 errors in the June report and 138 errors in the July Report, over a total of 29 applications (they did a review of the four files for which DOJ IG was provided with no Woods file, so had 4 more files than DOJ IG).

My numbers are off by 3 from theirs, which might be partly accounted for recurrent errors in a reauthorized application or lack of clarity on DOJ’s narrative. Or maybe like DOJ, I subtracted 48 from 138 and got 91.

Approximately 48 of these 138 non-material errors reflect typographical errors or date discrepancies between an assertion in an application and a source document. Of the remaining 91 non-material errors or unsupported facts, four involve nonmaterial factual assertions that may be accurate, but for which a supporting document could not be located in the FBI’s files; 73 involve non-material deviations between a source document and an application; and 13 involve errors in which the source of an otherwise accurate factual assertion was misidentified.

But my count shows that DOJ simply declared DOJ IG to be wrong 151 times in its assessment that something was an error, with an amazing 35 examples of that in one application, and of which 14 across all applications were instances where DOJ couldn’t find a document to support a claim (not even with three months to look), but instead said the totality of the application supported a claim.

Claiming that the totality of an application supports a claim, while being unable to find documentation for a discrete fact, sure sounds like confirmation bias.

And in the up to three months of review, FBI found documentation to support upwards of 130 claims that originally were not supported in the Woods file. In other words, these weren’t errors of fact — they were just instances of FBI not following the Woods procedure.

We know that if the Crossfire Hurricane team had been measured by the standard DOJ did in these filings, it would have done better than most of these applications (again, only with respect to the Woods file). That’s because, aside from the four claims that rely on intercepted information (which is not public), there is public documentation to support every claim deemed unsupported in the report but three: the one claiming that James Clapper had said that Russia was providing money in addition to the disinformation to help Trump.

The DNI commented that this influence included providing money to particular candidates or providing disinformation.

And the two claiming that Christopher Steele’s reporting had been corroborated, something the DOJ IG Report lays out at length was not true in the terms FBI normally measured. Except, even there, Steele handler Mike Gaeta’s sworn testimony actually said it had been. He described jumping when Steele told him he had information because he was a professional,

And at that time there were a number of instances when his information had borne out, had been corroborated by other sources.

He also provided a perfectly reasonable explanation for why Steele’s reporting was not corroborated in the way DOJ IG measured it in the report: because you could never put Steele on a stand, so his testimony would never be used to prosecute people.

From a criminal perspective and a criminal investigative kind of framework, you know, Christopher Steele and [redacted] were never individuals who were going to be on a witness stand.

In other words, while it appears that DOJ cleaned up many of the errors identified by DOJ IG by finding the documentation to back it over the course of months, the public record makes it clear that Crossfire Hurricane would have been able to clear up even more of the Page Woods file.

The exceptions prove the rule. There are, as my table notes, two or three claims that do not accurately describe what the underlying document says, claiming:

  • That Page never refuted the claims against him (he had, and in many cases, was telling the truth in his refutations)
  • That Steele told the FBI he never shared information with anyone outside his “business associate” [Fusion] and the FBI (he also shared it with State, as other parts of FBI had been told)
  • That in his first FBI interviews Papadopoulos admitted he had met with Australian officials but not that he discussed Russia during those meetings (it’s unclear how accurate this claim is)

Assume the last bullet (used just once) reflects the redacted parts of Papadopoulos’ 302s even though it does match his current statements, that nevertheless leaves you with an error rate on arguably the worst category — misrepresenting your evidence — of 2 or 3 per application. The first two of these are the Woods file errors that turned out to have a tie (a significant one in the first bullet) with the material reasons why some of the files were withdrawn. They’re the two errors in the Woods file that most directly tied to omitted evidence in the application that would lead to their withdrawal.

Of the 29 applications reviewed by DOJ, 12 of them have 3 or more “deviations from the source” material. One has 14 and another has 15.

So on the worst measure that this review actually did measure, the one that on Page’s application tied most directly to reasons to withdraw the application, Page’s application actually was within the norm.

It may well be that when all the reviews are done, DOJ will have proof that Carter Page’s application was an exceptionally bad application. Certainly, the material misstatements may end up being worse.

But the only thing this apples to oranges comparison of the Page methodology and the traditional DOJ methodology has proven is that — as a matter of the Woods file reviews — Bill Barr has used a different standard for Bill Barr’s DOJ than he has with Crossfire Hurricane. And that if the Page file had been treated as all the others were, from a Woods file perspective, it actually wouldn’t look that bad.

It also shows that when Bill Barr’s DOJ wants to continue spying on Americans who don’t happen to be associated with Donald Trump, he’s happy to argue that Michael Horowitz’s very legalistic reviews of the sort that did Andrew McCabe in are wrong.

Updated for clarity.