Shelter in Place

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In the final hours before the six-county Shelter in Place order came into effect in Northern California, signs went up, people gathered for last drinks, and the homeless tried to find warm places to sleep. Here are some scenes from San Francisco’s Mission District and the Castro, just before the order came into force.

Cliff's Hardware

Cliff’s Variety is a hardware and home goods store which has a cornerstone of the Castro area of San Francisco, even since before it was know as a haven to the gay community. Hardware stores will remain open, but many are limiting their hours and the number of people who can be in the store at any one time.

A San Francisco city worker disinfects a public bathroom late at night in the Castro area. Homelessness is prevalent in the area, and many homeless people rely on these public bathrooms for health and safety.

 

Orphan Andy’s, a diner in the Castro, shuts its doors following the Shelter in Place order.

The Purple Star cannabis dispensary serving customers lining up out the door as people prepare to hunker down in San Francisco’s Mission District.

A Mission District PrEP clinic is closed by the Covid-19 Shelter in Place order, putting people in the community more at risk for HIV transmission. PrEP stands for Pre-Exposure Prophylaxis, and is often given to people at high risk of exposure to HIV, like injection drug users, mixed status couples, and sex workers. PrEP therapies are highly effective at stopping the transmission of the virus, but only if taken daily.

 

 

 

 

Birite, a small high end grocery store near Mission-Delores. Late at night employees are chatting in the closed store, in advance of the Shelter in Place order. Stores have been jammed with people for the past week in San Francisco.

Markets are changing their hours and controlling access, trying to clean and stock shops while keeping their employees and customers safe.

The 24 hour Safeway announces new hours to give employees a chance to clean and stock the story.

 

 

 

 

 

A homeless man in a wheelchair makes his way along a dead-end street next to the 16th and Mission BART station in San Francisco. Having nowhere to go, the homeless are exempt from the Shelter in Place order. Governor Newsom of California has begun securing hotel rooms to bring the homeless inside, but it’s  a fraction of what’s needed to help with the enormous homeless population of the Bay Area.

Two bins in front of a salon in the Castro area of San Francisco protect a homeless sleeper. Salons won’t be among the essential services that can remain open under the Shelter in Place order, and their workers rarely have any form of paid time off.

Harvey’s restaurant and bar, name for Castro human rights legend Harvey Milk, serves a few last patrons before closing for all but delivery service.

Bars in the Mission District that were still open as the Shelter in Place order was about to take effect were often filled, with possibly unwise patrons trying to get in last drinks.

Schools in San Francisco, like Mission High School are closed until April, though it seems possible they won’t reopen for this school year as the pandemic progresses.

Take care of each other.

 

 

 

At First, KT McFarland Told a Similarly Misleading Version of the Story Mike Flynn Will Be Pardoned For

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In his abundant free time, the President tweeted about pardoning Mike Flynn on Sunday.

According to Matt Gertz, this was a response to a Lou Dobbs segment with John Solomon where Dobbs said there are 302s that “can’t be found.” Per transcripts Gertz shared, this is a reference to Sidney Powell’s claim — repeated with Dobbs the day before — that the first draft of Flynn’s 302 is missing (she also complained that Flynn never received a January 2017 memo stating that DOJ did not believe Flynn was an agent of Russia, which is unrelated to whether he was an agent of Turkey or lied to the FBI about his interactions with Russia).

Emmet Sullivan has already judged Trump’s complaint to be baseless

In December, Emmet Sullivan already judged this complaint to be baseless because the notes written before any “original 302” and all the 302s already provided Flynn track each other and the 302s consistently capture Flynn’s lies.

Mr. Flynn speculates that the government is suppressing the “original 302” of the January 24, 2017 interview, Def.’s Reply, ECF No. 133 at 28; he claims that the lead prosecutor “made it sound like there was only one 302,” id. at 29; and he makes a separate request for the FBI to search for the “original 302” in one of the FBI’s databases, id. at 28-30. In Mr. Flynn’s view, the “original 302”—if it exists—may reveal that the interviewing FBI agents wrote in the report “their impressions that [Mr.] Flynn was being truthful.” Id. at 28. Mr. Flynn claims that the FBI destroyed the “original 302” to the extent that it was stored in the FBI’s files. Id. at 30. Comparing draft FD-302s of Mr. Flynn’s January 24, 2017 interview to the final version, Mr. Flynn claims that the FBI manipulated the FD-302 because “substantive changes” were made after reports that Mr. Flynn discussed sanctions with the Russian Ambassador “contrary to what Vice President Pence had said on television previously.” Id. at 14-15. Mr. Flynn points to the Strzok-Page text messages the night of February 10, 2017 and Ms. Page’s edits to certain portions of the draft FD-302 that were “material.” Def.’s SurSurreply, ECF No. 135 at 8-9.

To the extent Mr. Flynn has not already been provided with the requested information and to the extent the information exists, the Court is not persuaded that Mr. Flynn’s arguments demonstrate that he is entitled to the requested information. For starters, the Court agrees with the government that there were no material changes in the interview reports, and that those reports track the interviewing FBI agents’ notes.

[snip]

Having carefully reviewed the interviewing FBI agents’ notes, the draft interview reports, the final version of the FD302, and the statements contained therein, the Court agrees with the government that those documents are “consistent and clear that [Mr. Flynn] made multiple false statements to the [FBI] agents about his communications with the Russian Ambassador on January 24, 2017.” Gov’t’s Surreply, ECF No. 132 at 4-5. The Court rejects Mr. Flynn’s request for additional information regarding the drafting process for the FD-302s and a search for the “original 302,” see Def.’s Sur-Surreply, ECF No. 135 at 8- 10, because the interviewing FBI agents’ notes, the draft interview reports, the final version of the FD-302, and Mr. Flynn’s own admissions of his false statements make clear that Mr. Flynn made those false statements.

Even though a judge has already ruled that this complaint is baseless, Trump took a break from mismanaging a pandemic to inch closer to a Flynn pardon based on it.

Given the increasing likelihood Trump will use the cover of the epidemic to pardon Flynn, it’s worth pointing to another set of evidence that Flynn’s prosecution for lying was sound: he’s not the only one who tried to cover up the Trump Transition’s efforts to undercut President Obama’s sanctions on Russia.

Like Flynn, KT McFarland hid Trump Transition efforts to undercut sanctions at first

In FBI interview reports (302s) released in the BuzzFeed/CNN FOIAs, some details of KT McFarland’s interviews prior to his guilty plea have been released. McFarland was interviewed four times before Flynn’s plea deal became public: August 29 (this 302 has not yet been released), September 14, October 17, and October 19, 2017.  Those 302s show that, at first, KT McFarland downplayed the Trump Transition efforts to undermine Obama’s sanctions on Russia that Mike Flynn got fired and prosecuted for (as well as tried to protect Jared Kushner in his role trying to undercut Obama policies on Israeli settlements).

McFarland’s first interview, on August 29, came in the wake of Mueller’s team acquiring Transition emails from the General Services Administration without notice to the campaign, followed by a warrant to read them. It’s likely her (still unreleased) initial interview and the beginning of her second one were based off a presumption that some emails making it clear the Transition had discussed sanctions would not get shared with Mueller’s team. When she got showed them, she claimed not to remember all details about them.

Her initial interview, as noted, has not been released. The unredacted passages from her second one (she did all pre-Flynn interviews without a lawyer, but in the presence of her spouse, who is a lawyer) show she shaded the truth about things she should have known the FBI had counter-evidence to. (In what follows, I’m bolding things she said in early interviews that her later testimony contradicts.)

For example, in that second interview, McFarland professed to not recall who attended a Presidential Daily Brief on December 28, 2016 where sanctions were discussed.

McFarland was shown a calendar entry for December 28, 2016 and confirmed the entry would have represented a PDB. She sat in the briefing, but did not recall who was there besides [Deputy Director of National Intelligence Edward] Gistaro. It was a small number of people and it took place in a basement studio apartment in the hotel.

Note: Gistaro had already testified at least once before this interview, on June 14, but that was likely focused on Trump’s demand that Dan Coats “help with the [Russian] investigation.” But it’s certainly possible his is one of the interviews in the interim that remain undisclosed.

In addition to her vague memories about meetings at Mar-a-Lago, McFarland also claimed she “did not recall any conversations she may have had with Flynn the day sanctions were announced.” While her description of what Flynn told her about his call with Sergey Kislyak is largely redacted, it’s clear she told the FBI it pertained to “Russian President Putin’s desire for a contemporary video conference after the inauguration.” This is the cover story Flynn asked her to tell the press in January 2017, and it’s part of what Flynn got fired for. Yet she was still relying on it in an interview with the FBI seven months later.

In her third interview, McFarland admitted that sanctions may have come up, but claimed again not to have specific knowledge of it.

News that the Obama Administration planned to impose sanctions on Russia started to come out on December 28, 2016, but they had not been officially announced and specifics were unknown. Sanctions were just one of “several and many things” going on at that time. McFarland, who was in Mar-a-Lago with the President-elect, did not recall what specific conversations she had at which times or to whom she spoke, but sanctions were in the news so it would make sense to her they were among the topics discussed.

In this interview report, McFarland’s explanation for an email involving Tom Bossert discussing sanctions is redacted, but the unredacted parts claim,

McFarland never discussed the specific terms of the sanctions with anyone. She would have told Michael Flynn about how the session with the President-elect went during one of their phone calls.

This claim would have been especially sketchy to the FBI since Flynn had already told the FBI, in January, that he only learned about sanctions from those at Mar-a-Lago.

McFarland also claimed not to remember what she discussed with Flynn when.

She did not have specific recollections about the times of the calls with Flynn or what was discussed in which call. Flynn mentioned several times several issues he intended to discuss with the Russians, and McFarland believed she would have given her theories about the sanctions.

McFarland’s memory started to grow clearer after outlines of Flynn’s testimony were released when he pled guilty on December 1, 2017.

McFarland’s post-Flynn plea memories grow significantly clearer

As the Mike Flynn cooperation addendum laid out, one reason Flynn’s reluctant cooperation was useful is it led others — including, but not limited to, McFarland — to unforget the truth.

[T]he defendant’s decision to plead guilty and cooperate likely affected the decisions of related firsthand witnesses to be forthcoming with the SCO and cooperate. In some instances, individuals whom the SCO interviewed before the defendant’s guilty plea provided additional, relevant details about their knowledge of key events after his cooperation became publicly.

Days after Flynn’s guilty plea, on December 5, she must have realized that he had given testimony that contradicted hers and informed FBI agents she was in the process of lawyering up. McFarland asked one of the FBI Agents she had been interacting with for the Tom Bossert and Mike Flynn emails she had already testified about, which were included in a December 2 NYT story on Flynn’s plea.

McFarland asked whether SSA [redacted] could provide two emails which he and SA [redacted] had shown to her in her interviews. She did not have the emails, but they were now apparently widely held, including by the New York Times, which published, but grossly misrepresented them. The emails were one from her dated December 29, 2016 in which she discussed President Obama’s three political objectives in imposing sanctions and mentioned Flynn’s scheduled call with the Russian ambassador that evening; and an email from Flynn to her the next day, December 30, 2017, in which Flynn reported on his conversation with the ambassador. McFarland felt she was at a a disadvantage since “everyone in the world” had copies of the emails except for her.

McFarland’s fourth 302 — which the Mueller Report heavily relies on — is heavily redacted. But what’s not redacted shows McFarland remembering details about conversations she had had about sanctions that she had professed not to remember in her earlier interviews.

McFarland and Bannon met on December 29. [redacted] but they also talked about sanctions. [redacted] Bannon told McFarland the sanctions would hurt their ability to have good relations with Russia. [redacted] Bannon thought a Russian escalation would make things more difficult. McFarland thought she told him Flynn was scheduled to talk to the Russian ambassador later that night. [redacted]

McFarland stated that she may have run into Priebus and given him a short version of her conversation with Bannon about the sanctions. [redacted] She may have told Priebus that Flynn was scheduled to talk to the Russian ambassador that night, but was not sure.

[redacted]

McFarland and Flynn spoke on the telephone at around 4:00 pm on December 29.

[redactions and snip]

McFarland knew before the [sic] Flynn’s call that Flynn was going to feel out the Russian ambassador on the overall relationship, knowing that the sanctions would influence it.

There’s a heavily redacted section that nevertheless shows that McFarland provided significant details about the meeting with Trump on December 29 (including that Trump “said he had reason to doubt it was the Russians” who had hacked the DNC). Even with the redactions, it’s clear she discussed what might happen with the sanctions at that meeting. And she admitted that “someone may have mentioned Flynn’s scheduled call with Kislyak as they were ending the meeting.”

Additionally, McFarland laid out all the details of conversations with Flynn she had previously claimed not to remember, both before and after his calls with Kislyak.

[Flynn] told McFarland the Russian response was not going to be escalatory because they wanted a good relationship with the Trump administration.

[snip]

When Flynn and McFarland spoke on December 31, Flynn told McFarland he talked to the Russian ambassador again. He said something to the effect of “Well, they want a better relationship. The relationship is back on track.” Flynn said it was a good call and he thought his own call had made a difference but not the only difference. [redacted] McFarland congratulated Flynn for his work.

In short, contrary to what she claimed in her earlier interviews, McFarland proved she had memories of:

  • Discussions she had with at least Steve Bannon about sanctions before Flynn’s call with Sergey Kislyak, and possibly Reince Priebus
  • The specific times of at least some of her calls with Flynn
  • Details of the meeting at which sanctions were discussed with Trump
  • Specific details of calls between her and Flynn, both before and after his calls with Kislyak

McFarland is not the only one whose memory grew clearer after it became clear Mueller had heard at least one truthful version of what had transpired in late December 2017; the story Bannon initially told, even after Flynn’s plea, almost certainly evolved as well (his later interviews have been withheld thus far, but we know his memories about the WikiLeaks releases got clearer over time). Reince Priebus’ first interview, on October 13, 2017, has not yet been released. The tiny unredacted bits of Priebus’ Janaury 18, 2018 interview, conducted in the wake of Flynn’s plea, showed that he hedged but did admit they may have discussed Flynn’s call in advance.

The consistency with which those who were present at Mar-a-Lago on December 29, 2017 tried not to remember discussing sanctions in advance of General Flynn’s calls, much less what might have gone down with Trump, suggests this is not a matter of Flynn being a rogue liar. Rather, it suggests a concerted effort to downplay what happened and to minimize any involvement Trump had in it, one that was undercut by Flynn’s plea deal.

One story downplaying efforts to undermine sanctions is a lie; multiple stories is a cover-up

That’s why no one should credit Trump’s claims to believe that Flynn was mistreated in his prosecution. Not only has Judge Sullivan ruled that it’s not true, but the available evidence — even with proof that Bill Barr’s DOJ is abusing the FOIA response process to hide the true extent of all this — shows that multiple people with consistent memories of what happened at Mar-a-Lago on December 29, 2017 initially professed not to remember what happened that day.

That’s not Flynn being ambushed and improperly prosecuted. That’s Flynn — who up until he decided to plead guilty was part of the Joint Defense Agreement with the President and others — being the first break in an effort to cover-up what really went down.

And the public record has one more highly damning detail that shows Flynn knew from the start that this was a cover-up.

In the section of the Mueller Report incorporating details Flynn and McFarland unforgot in November and December 2017, it reveals that Flynn intentionally excluded the details about the Kislyak follow-up call about sanctions when he sent McFarland a text message reporting on the call.

The next day, December 30, 2016, Russian Foreign Minister Sergey Lavrov remarked that Russia would respond in kind to the sanctions. 1262 Putin superseded that comment two hours later, releasing a statement that Russia would not take retaliatory measures in response to the sanctions at that time. 1263 Hours later President-Elect Trump tweeted, “Great move on delay (by V. Putin).” 1264 Shortly thereafter, Flynn sent a text message to McFarland summarizing his call with Kislyak from the day before, which she emailed to Kushner, Bannon, Priebus, and other Transition Team members. 1265 The text message and email did not include sanctions as one of the topics discussed with Kislyak. 1266 Flynn told the Office that he did not document his discussion of sanctions because it could be perceived as getting in the way of the Obama Administration’s foreign policy.1267

[snip]

According to McFarland, Flynn remarked that the Russians wanted a better relationship and that the relationship was back on track. 1270 Flynn also told McFarland that he believed his phone call had made a difference. 1271 McFarland recalled congratulating Flynn in response. 1272 [my emphasis]

In her second interview, months before she unforgot that they had had a self-congratulatory conversation about Flynn’s success in undermining Obama’s efforts to punish Russian for interfering in the election, McFarland also claimed not to be concerned that Flynn hadn’t mentioned sanctions in a text he sent her after the call. “She did not recall being concerned that Flynn did not mention sanctions in this email.”

Except that it would not be a matter of concern. It would be a matter of knowing that Flynn had created a false record of what happened. And months later, she would admit that she did know that was a false record. This appears to be the text (which she forwarded as an email) that she tried to obtain from the FBI once she realized that Flynn had flipped.

None of this will prevent Trump from pardoning Flynn. But it does provide reason why Judge Reggie Walton should review the 302s of those involved in the December 2017 events even as he reviews the full Mueller Report, which almost certainly includes an explanation of why Mueller did not charge McFarland for her initial misleading comments. The public deserves to have all the evidence that, in pardoning Flynn, Trump won’t be pardoning someone he believes to have been ambushed and who as a result told a misleading story. He’ll be pardoning the one person who paid a price for covering up the Trump Transition’s efforts to undercut sanctions imposed to punish Russia for tampering in the 2016 election.

A helpful FAQ on Covid 19

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1. Am I going to die?

Yes, unfortunately everyone dies.

2. No, I mean am I going to die of Covid 19?

Oh right, that! Probably not. Most people who get it have fairly minor symptoms. Though by minor, I mean not life threatening, not necessarily pleasant to experience. Current estimates are that 80% of cases are minor, 20% require some kind of medical intervention, and somewhere between .7% and 5% may die or get close enough to see that bright light coming for them.

3. You mean a near-death experience for as much as 5% of people?

No, I mean hospital lighting, it’s so bright, and so unpleasant! It gives me a headache every time. Why can’t they use warmer bulbs?

4. I’m asking the questions here.

Right, sorry, go on.

5. Will a lot of people need to be hospitalized? 

It looks that way. Mostly people around 70 or older, and people with existing health conditions, are going to need what’s called “supportive care.” Supportive care means we don’t have a cure or direct treatment, but we can often keep the body going while it fights the good fight to created enough antibodies to kill the viruses floating around inside the Covid 19 patient. That can mean extra oxygen, monitoring by healthcare staff, or more, all the way to a machine that breathes for the patient.

6. What do we do about too many people needing to go to the hospital at once? 

This is the nightmare we’re trying not to have, and we need to practice what epidemiologists call delay, to slow the rate of people heading for the hospital. You can wash your hands, clean the surfaces around you (more on that soon) and avoid getting close to other people outside. But mayors, governors, school administrations, and other authorities in charge of spaces where a lot of people are close together can do a lot more by canceling events, encouraging work from home, closing schools and universities, and limiting how many people can congregate and how close they can be. Anywhere the public comes together will become a place where the virus travels from person to person. This is important, because if we can slow it down, then the line for those plush Intensive Care Unit beds will be balanced out, and everyone won’t be rushing for ventilators like it’s Black Friday at Medical Walmart.

Here’s a great visual of what we’re trying to do with all this social distancing and hand washing especially hand washing did I mention hand washing?

The pokey curve is uncontrolled infections, the smooth, slower curve we want is what we want by delaying the spread.

7. Why don’t we have a cure? Who do I yell at about this?

Look, we live in such and age of wonders and such an age of political duplicity and ineptitude that it can seem like anything bad that happens is negligence or malice. But the fact is, Nature can still kick our collective ass anytime it wants to. This isn’t anyone’s fault, this is the kind of thing humans have been dealing with since before we were humans.

8. There must be something I can yell about and someone to yell it at?

Don’t worry! There is. There’s a lot both authorities and regular people can do to manage the spread of this disease and make the treatment more effective. On the personal level, you can yell at your children/roommates/parents/etc. to wash their hands for 20-30 seconds several times a day, before and after going out, before preparing food, using the toilet, touching food, touching their face, sneezing, coughing, spitting, or cursing…

9. Wait, cursing?

Well, it can’t hurt.

10. sigh Go on. 

You can also clean commonly touched surfaces a lot — think doorknobs, handles, counters, light switches, keyboards, knobs, buttons, faucets… your germ-nursery of a cellphone, just walk around the spaces you’re concerned about, public or private, and think about where people touch, cough, sneeze or lick.

11. LICK? You know what, I don’t want to know. What do I have to clean everything with? Alcohol, bleach, fire?

All of those things will work, but honestly soap or basic surface cleaners are fine. Disinfecting wipes are good for quick cleaning and for cellphones but you can also just spray a little surface cleaner on a paper towel and wipe things down well with a good amount of cleaner, including your disgusting cell phone. Soap (detergent) is great. In fact, it’s often better than alcohol or hydrogen peroxide. Here’s the thing, this coronavirus, SARS-CoV-2, has a single strand of RNA and four specialized proteins all supported by a lipid bilayer holding the package together. Having a lipid viral envelope makes it susceptible to detergents…

12. Could you stop with the nerd talk?

Sorry. If you put soap on the virus and rub a bit, it pops, and then it dies.

13. Wow!

I know, right? You can set it on fire and pour alcohol on it or whatever, but anything that cuts grease and little back and forth, and you can just imagine those tiny little spiky balls popping and spilling their tiny little guts everywhere. It’s great. Just makes you want to scrub everything.

Hand sanitizer works similarly, but not actually as well as regular old soap. There’s a lot of cleaning products out there, but you’re really much better off with soap. You also don’t want to use things that will dry out and cause cracking in your skin — any bloody spot is an entry point. That might also mean you should get some lotion and keep your hands soft, supple, and free of extra holes.

But seriously, wash your hands with soap and water, and don’t touch your face. That’s pretty much the best thing we can all do.

Here’s a Baby Shark video with dancers showing proper hand washing technique, and here is another. The internet is truly full of things .

14. Ok, but let’s get back to the part when I get to yell at people about this. 

Sure. The virus travels between people on the tiny droplets that we cough, sneeze, or even just exhale. It’s also potentially in our tears, spit, blood, and our bathroom business. That’s a lot of ways for it to get from one person to the next, and that means we need to get away from each other to slow the spread of the disease. You can yell at local officials and event organizers to cancel or postpone gatherings where people might be in close contact, and those people might include children. Schools, conferences, church services and other public event cancellations are already happening, and they need to happen a lot more. You can yell at your local authorities about that.

15. What about testing?

Oh, yell your head off about this. Testing, especially in America, has been abysmal. Widespread testing is one of the best ways to map out and contain any epidemic, and given that many people (especially children) seem to have mild symptoms, it’s even more important to have widely available testing. Ideally testing should be available to everyone in an infected area. South Korea has drive through testing, China made a lot of their testing mandatory. In most cases, if you have the virus you just need to know to go home and stay there until you get through it. But if you don’t know it, you can run around spreading it, which is exactly what many people who were turned down for getting tested in the USA, Australia, Japan, and more, ended up doing. Testing only the sickest people tells you about them, but not about how the virus might be spreading at the moment. Very sick people aren’t walking around anymore coughing on everything. In some ways knowing if the very sick have the virus is less important than knowing about the still walking sick who may have it.

Whatever is causing the delay in US testing, the excuse isn’t good enough.

16. Is Covid 19 the fault of Trump/Mitch McConnell/Nancy Pelosi/Jay Inslee/Gavin Newsom/Rush Limbaugh/Etc.? 

Honestly, it doesn’t much matter whose fault it is right now. The house is on fire, and we need to put it out. We can figure out who to blame later. The important thing is that we start testing as widely and quickly as possible, and getting that information into the communities to help them make decisions based on good data. Also just to be on the safe side don’t lick any pangolins you come across.

17. How do I get my uncle/mother/child/self to stop COMPLETELY FREAKING OUT about all of this?

If you’re reading this you’re probably not a medical professional working the front lines of the response or an administrator planning logistics for your area. You just don’t need to know the latest news and speculation about Covid 19, and neither does your child, spouse, cousin, or cat. Informed is good, but drowned in information and emotionally paralyzed is bad. Pick a time of day to get your Covid 19 news, and then just… stop. If you really must, go ahead and check two times a day. If people bring it up, talk about hand washing and cleaning surfaces until they drop it. Nobody wants to talk about hand washing and cleaning that much, except possibly me.

If you’re dealing with a loved one that’s just losing it, plan an activity. A board game, a movie, something that gives everyone’s brain a break from it all. Accidentally unplug your internet for a while. If you just feel like you need to do something about it, clean house, it can’t hurt. Print up hand washing posters and put them up in bathrooms you visit. Do, and talk about, other things. The world is still turning, there are books to read and movies to watch and work to do and being scared of Covid 19 is not your full time job.

18. Is this the Zombie Apocalypse?

No, this is just another boring bug that causes a bad lung infection. There are a lot of them, but because this one is new (hence novel) we don’t have any immunity to it. It’s just going to be difficult and sad for a while.

19. You know what I mean. Is this… that virus? Is it the deep state, or an escaped bioweapon from an evil government lab? Is the SARS-CoV-2 virus going to be played by Dwayne “The Rock” Johnson one day, when the Truth is Revealed? 

Oh Lord, OK, this one. Let me tell you how boring, and inevitable, this kind of thing is. This novel virus is from a family of viruses called Coronaviruses. They were discovered in the 1960s, most of them cause common cold symptoms. They’re genetically similar RNA viruses, but you can almost just think of them as simple machines for injecting RNA into certain cells who then unwittingly make copies of them. But none of this is very precise, and errors get into the next generation of RNA viruses all the time, which is how you end up with new viruses. It’s about as sinister as self replicating Roombas, which is kind of sinister but also kind of stupid. Novel emerging viruses that cause epidemics are inevitable, and they’ve been happening not just since before we were humans, but before we were even animals. Not only is creating a viral bioweapon that happens to mostly kill older people and people with immune conditions not terribly possible with current technology, it’s also not particularly desirable.

This is not the only novel infectious agent we’ll see, it’s not even the only one we’ve seen in recent years — SARS, MERS, AIDS, H1N1, Ebola, MRSA, they’re all new(-ish) infectious agents we’ve been fighting in the last few decades. As we disturb habitats and invade bat caves viruses and bacteria that aren’t used to our bodies will end up trying us out. Most of them will die and we’ll never know they were there in us, looking for something to latch onto. But every once in a while, one of these tiny bastards hits the Lotto numbers. That’s part of what we have the scientific and clinical field of Epidemiology for. We forget this in our age of technowonders, but Nature is still the OG asskicker, and always will be.

20. That’s depressing, and kind of a letdown. 

I know. Maybe we can get Dwayne Johnson to play Dr. Tedros Adhanom, head of the World Health Organization (WHO) and he can beat up people who are withholding testing and demand that the public be allowed to go home and practice social distancing.

21. OK that’s a terrible idea for a movie, but fine, it’s not a secret government plot. If I’m not even a zombie, how do I know if I have Covid 19?

The symptoms to keep an eye out for are a fever, shortness of breath (difficulty breathing), and a cough.

22a. Whoa wait that exactly what I-slash-the person reading this next to me have! WHAT DO I DO NOW?!

First off, calm down. Those can be common flu symptoms, and thankfully the flu (with its much lower fatality rate) is still more common. But if you’re in an area with community transmission or have recently traveled to an area with an epidemic outbreak, it’s worthwhile to get testing if testing is available. If you’re sick, don’t go to the hospital or the doctor’s office. Call your doctor or the hospital, and tell them why you think you might have Covid 19. If you’re very sick, and you need to go to the hospital, call for an ambulance, and tell them you believe you may have Covid 19. That way they can show up with the right equipment to keep you and everyone else safe.

22b. I have a runny nose and a sore throat and generally feel a bit crap.

Chill. I have that too, it’s a cold. It’s why this FAQ is so late.

23. Will this just all go away when it warms up?

Well… It’s complicated. The short answer is no, but maybe it kind of could? A lot of this has to do with how well the SARS-CoV-2 virus survives on surfaces, and it doesn’t survive as long on warm surfaces, or enjoy being hit by UV rays from the sun. That could, in theory, lower the overall infectiousness of the disease, but we just don’t know yet.

24. I have really great health insurance, that means I’m cool, right?

Oh, sorry, not this time. The problem is whether or not we can slow the virus down enough to make sure the hospital beds aren’t full when you need them. No matter how good your health insurance is, if hospitals are racing to catch up with how many sick people there are and the epidemic is in a crisis, you’re going to be stuck waiting. Have I mentioned washing your hands a lot?

25. Why are children immune? Why don’t they suffer like the rest of us? 

Harsh, but ok. Children aren’t immune, they get the virus in the same timeframe and probably have it as long as we grown-ups do. They just don’t seem to have a lot of symptoms. If you put a swab in their nose you can detect the virus, but they don’t seem to get very sick. As for why, we don’t know. They could have very little viral activity, or they could be shedding it like tiny adorable Typhoid Marys all over their grandparents. There’s a lot we just don’t know about this virus or what it’s doing the the world. It’s novel, and that’s hard to deal with. Many papers are coming out about it, many scientists are pouring over all the data we have. Research on Covid 19 may be one of the only things traveling faster than than the virus, but there’s still so much to figure out.

26. How much social distancing should I be practicing?

Some of that depends on you. If you’re older, immunocompromised, or otherwise high risk, you should probably at least be prepared to stay home for a few weeks if the virus comes to town. If it’s in town already, avoid crowds and busy transit. Work from home if you can, and prepare for school closures. If you’re sick with something else and you must go out, that’s the time to wear a mask, but a surgical mask is fine. Wash your hands and don’t touch your face. If you’re sick with Covid 19, really, don’t go out. Try to get anything you need delivered until you’re well again.

27. Once I’m well, and I’ve beat the virus, I’m an invulnerable coronavirus superhero, right?

Well, uh, there’s more than one strain, and we don’t know if having one confers general immunity. Until we know you should probably still be careful.

28. SERIOUSLY?! 

Yeah, we’ll probably know more soon, but this is novel, and we’re all still figuring it out.

Sorry.

29. It looks like I’m living with someone who has the virus and I have to take care of them, or they are high risk and I’m worried about giving it to them. 

That’s beyond the scope of a sarcastic FAQ, but I’ll try. If you’re living with a vulnerable person, you need to go their speed when it comes to social distancing, self-isolation, and safety precautions. If you’re taking care of someone, this is the situation in which you need PPE (Personal Protective Equipment) like N95 masks, gloves, etc.. And you need to fit the masks correctly. Youtube tutorials are your friends.

30. Should I go to school? To work? Can I still go out to eat? Or get delivery? Man, I don’t know how to boil water. 

A lot of this depends on what’s going on where you are. There should be local announcements about schools, work, and gatherings that help guide your decisions, but you may also need to be more careful based on your own health situation.

As for getting prepared food, a cooked meal is going to kill the virus, though it would be nice for people working in commercial kitchens to wear masks and wash their hands a lot. If you’re going out, don’t go somewhere crowded. You want 4-6 ft between between people, with good ventilation. If you’re getting delivery, make sure your food is hot and treat sacks and containers as possible contaminated — wash your hands, throw packaging out, wash your hands again.

31. What are you doing about it, yourself? Huh, Quinn?

Oh, put my money where my mouth is, eh? (That’s a terrible idea, money is almost always contaminated, so I’m using my credit card as much as possible) I’m currently in San Francisco, where there isn’t a medical crisis (yet) but we do have community transmission. My daughter’s school is still open, which I’m unhappy about but for now she’s going. When I had cold symptoms I wore a mask out. I’m checking my temperature periodically and so are my roommates. I wash my hands a lot. I’m wiping down high-touch surfaces with detergent a few times a day.

My daughter and I are taking multivitamins. Some people think Zinc can help, or Vitamin D, or C, or whatever, and honestly no one knows — novel virus! What I am sure of is that deficiencies make illness worse, and a multivitamin can’t do any harm. (Except biological males should not take women’s vitamins due to the iron they contain.) I’m still going out and doing a few things, but I don’t stand in lines or get close to people. I went to Safeway, saw lines, and noped right out of there. I’m usually walking to get around, but will get on a mostly empty tram. I’m still going for runs, and see people walking dogs. That’s fine, as long as we stay well away from each other.  When I get back, I wash my hands.

32. Where do I find good and reliable information that’s less sarcastic than this FAQ?

Did I mention you should wash your hands?

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How the Wyden/Khanna Espionage Act Fix Works (But Not for Julian Assange)

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Last week, Ron Wyden and Ro Khanna released a bill that they say will eliminate much of the risk of prosecution that people without clearance would face under they Espionage Act. They claim the bill would limit the risk that:

  • Whistleblowers won’t be able to share information with appropriate authorities
  • Those appropriate authorities (including Congress) won’t be able to do anything with that information
  • National security journalists will be prosecuted for publishing classified information
  • Security researchers will be prosecuted for identifying and publishing vulnerabilities

I want to look at how the bill would do that. But I want to do so against the background of claims about how the bill would affect the ability to prosecute Julian Assange.

After explaining that under the bill Edward Snowden could still be prosecuted, the summary of the bill states in no uncertain terms that the government could still prosecute Julian Assange under the bill.

Q: How would this bill impact the government’s prosecution of Julian Assange?

A: The government would still be able to prosecute Julian Assange.

It doesn’t say how, but immediately after that question, it explains that the government could still prosecute hackers who steal government secrets.

Q: What about hackers who break into government systems and steal our secrets?

A: The Espionage Act is not necessary to punish hackers who break into U.S. government systems. Congress included a special espionage offense (U.S.C § 1030(a)(1)) in the Computer Fraud and Abuse Act, which specifically criminalizes this.

Khanna, in an interview with The Intercept, seems to confirm that explanation — that Assange could still be prosecuted under CFAA.

Khanna told The Intercept that the new bill wouldn’t stop the prosecution of Assange for his alleged role in hacking a government computer system, but would make it impossible for the government to use the Espionage Act to charge anyone solely for publishing classified information.

Indeed, that is sort of what Charge 18 against Assange is, conspiracy to commit computer intrusion, though, as written, it invokes the Espionage Act and theft of government secrets as part of the conspiracy (the Wyden/Khanna bill would limit the theft of government property bill in useful ways). Never mind that as charged it’s a weak charge for evidentiary reasons (though that may change in Assange’s May extradition hearing); it would still be available, if not provable given existing charged facts, under this bill.

But given the claims the US government makes about Assange, that may not be the only way he could be prosecuted under this bill. That’s because the bill works in two ways: first, by generally limiting its application to “covered persons,” who are people who’ve been authorized to access classified or national defense information by an Original Classification Authority. Then, it defines “foreign agent” using the definition in FISA (though carving out foreign political organizations) and says that anyone who is not a foreign agent “shall not be subject to prosecution” under the Espionage Act unless they commit a felony under the act — by aiding, abetting, or conspiring in the act — or pays for the information and wants to harm the US. The bill further carves out providing advice (for example, on operational security) or an electronic communication or remote computing service (such as a secure drop box) to the public.

So:

  • If you don’t have clearance or are sharing information not obtained illegally or via your clearance and
  • If you aren’t an agent of a foreign power and
  • If you’re not otherwise paying for, conspiring or aiding and abetting in some way beyond offering operational security and drop boxes with the specific intent to harm the US or help another government

Then you shouldn’t be prosecuted under the Espionage Act.

Below, I’ve written up how 18 USC §793 and 18 USC §798 would change under the bill, with changes italicized (18 USC §794 already includes the foreign government language added by this bill so would not change).

In the wake of the 2016 election operation, where Julian Assange helped a Russian operation hiding behind thin denials, Assange might well meet the definition of “foreign agent.” Three of WikiLeaks’ operations — the Stratfor hack (in which Russians were involved in the chat rooms), the 2016 election year operation, and Vault 7 (in which Joshua Schulte, between the initial leak and the alleged attempts to leak from jail, evinced an interest in Russia’s help) — involved some Russian activity.

And it’s not clear how Congress’ resolution — passed in last year’s NDAA — that WikiLeaks is a non-state hostile intelligence service often abetted by state actors would affect Assange’s potential treatment as a foreign agent.

It is the sense of Congress that WikiLeaks and the senior leadership of WikiLeaks resemble a nonstate hostile intelligence service often abetted by state actors and should be treated as such a service by the United States.

But even with all the new protections for those who don’t have clearance, this bill specifically envisions applying it to someone like Assange. That’s because it explicitly incorporates aiding and abetting (18 USC § 2) — which is how Assange is currently charged in Counts 2-14 — as well as accessory after the fact (18 USC § 3), and misprison of a felony (18 USC § 4) into the bill. That’s on top of the conspiracy to commit an offense against the US (18 USC § 371), which is already implicitly incorporated in 18 USC § 793(g), which is Count 1 in the Assange indictment. Arguably, explicitly adding the accessory after the fact and misprison of a felony would make it easier to prosecute Assange for assistance that WikiLeaks and associated entities routinely provide sources after the fact, such as publicity and legal representation, to say nothing of the help that Sarah Harrison gave Edward Snowden to flee to Russia.

And those charges don’t require someone formally fit the definition of agent of a foreign power so long as the person has “the specific intent to harm the national security of the United States or benefit any foreign government to the detriment of the United States.” (I’ve bolded this language below.) That’s a mens rea requirement that might otherwise be hard to meet — but not in the case of Assange, even before you get into any non-public statements the US government might have in hand.

This is a bill from Ron Wyden, remember. Back in 2017, when he first spoke out when SSCI first moved to declare WikiLeaks a non-state hostile intelligence service, he expressed concerns about the lack of clarity in such a designation.

I have reservations about Section 623, which establishes a Sense of Congress that WikiLeaks and the senior leadership of WikiLeaks resemble a non-state hostile intelligence service. The Committee’s bill offers no definition of “non-state hostile intelligence service” to clarify what this term is and is not. Section 623 also directs the United States to treat WikiLeaks as such a service, without offering further clarity.

To be clear, I am no supporter of WikiLeaks, and believe that the organization and its leadership have done considerable harm to this country. This issue needs to be addressed. However, the ambiguity in the bill is dangerous because it fails to draw a bright line between WikiLeaks and legitimate journalistic organizations that play a vital role in our democracy.

I supported efforts to remove this language in Committee and look forward to working with my colleagues as the bill proceeds to address my concerns.

While this bill does much to protect journalists (and in a way that doesn’t create a special class for journalists or InfoSec researchers that would violate the First Amendment), it provides the clarity that would enable charging Assange, even for things he did after the fact to encourage leakers.

Update: Two more points on this. First, as I understand it, the explicit references to 18 USC §§ 2-4 are designed to protect reporters, meaning the protections apply to those as well.

I also meant to note that the way this bill is written — which is clearly meant to allow for prosecution of people working at state-owned media outlets (Russia, China, and Iran all use their outlets as cover for spies) — would then by design not protect reporters at the BBC or Al Jazeera, both of which have done reporting on stories implicating US classified information in the past.

18 USC § 793

(a) Whoever, for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation, goes upon, enters, flies over, or otherwise unlawfully obtains nonpublic information concerning any vessel, aircraft, work of defense, navy yard, naval station, submarine base, fueling station, fort, battery, torpedo station, dockyard, canal, railroad, arsenal, camp, factory, mine, telegraph, telephone, wireless, or signal station, building, office, research laboratory or station or other place connected with the national defense owned or constructed, or in progress of construction by the United States or under the control of the United States, or of any of its officers, departments, or agencies, or within the exclusive jurisdiction of the United States, or any place in which any vessel, aircraft, arms, munitions, or other materials or instruments for use in time of war are being made, prepared, repaired, stored, or are the subject of research or development, under any contract or agreement with the United States, or any department or agency thereof, or with any person on behalf of the United States, or otherwise on behalf of the United States, or any prohibited place so designated by the President by proclamation in time of war or in case of national emergency in which anything for the use of the Army, Navy, or Air Force is being prepared or constructed or stored, information as to which prohibited place the President has determined would be prejudicial to the national defense; or

(b) An individual who, while a covered person, for the purpose aforesaid, and with like intent or reason to believe, copies, takes, makes, or obtains, or attempts to copy, take, make, or obtain, any sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, document, writing, or note of anything connected with the national defense; or

(c) A foreign agent who, for the purpose aforesaid, and with like intent or reason to believe, receives or obtains or agrees or attempts to receive or obtain from any person, or from any source whatever, any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note, of anything connected with the national defense, knowing or having reason to believe, at the time the foreign agent receives or obtains, or agrees or attempts to receive or obtain it, that it has been or will be obtained, taken, made, or disposed of by any person contrary to the provisions of this chapter; or

(d) Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note, or information relating to the national defense, which document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it; or

(e) An individual who—

(1) while a covered person, gains unauthorized possession of, access to, or control over any non public document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note of anything connected with the national defense; and

(2)(A) with reason to believe such information could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits, or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit, or cause to be communicated, delivered, or transmitted, the same to any person not entitled to receive it; or

(B) willfully—

(i) retains the same at an unauthorized location; and

(ii) fails to deliver the same to the officer or employee of the United States entitled to receive it; or’

(f) Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance,  (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—

Shall be fined under this title or imprisoned not more than ten years, or both.

(g)(1) A foreign agent who—

(A) aids, abets, counsels, commands, induces, or procures the commission of an offense under this section shall be subject to prosecution under this section by virtue of section 2 of this title;

(B) knowing that an offense under this section has been committed by another person, receives, relieves, comforts, or assists such other person in order to hinder or prevent the apprehension, trial, or punishment of such other person shall be subject to prosecution under section 3 of this title;

(C) having knowledge of the actual commission of an offense under this section, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States shall be subject to prosecution under section 4 of this title; or

(D) conspires to commit an offense under this section shall be subject to prosecution under section 371 of this title.

(2) Any person who is not a foreign agent shall not be subject to prosecution under this section by virtue of section 2 of this title or under section 3, 4, or 371 of this 7 title, unless the person—

(A) commits a felony under Federal law in the course of committing an offense under this section (by virtue of section 2 of this title) or under section 3, 4, or 371 of this title;

(B) was a covered person at the time of the 13 offense; or

(C) subject to paragraph (3), directly and materially aids, or procures in exchange for anything of monetary value, the commission of an offense under this section with the specific intent to—

(i) harm the national security of the United States; or

(ii) benefit any foreign government to the detriment of the United States.

(3) Paragraph (2)(C) shall not apply to direct and material aid that consists of—

(A) counseling, education, or other speech activity; or

(B) providing an electronic communication service to the public or a remote computing service (as such terms are defined in section 2510 and 2711, respectively).

(h)

(1)Any person convicted of a violation of this section shall forfeit to the United States, irrespective of any provision of State law, any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, from any foreign government, or any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, as the result of such violation. For the purposes of this subsection, the term “State” includes a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.

(2)The court, in imposing sentence on a defendant for a conviction of a violation of this section, shall order that the defendant forfeit to the United States all property described in paragraph (1) of this subsection.

(3)The provisions of subsections (b), (c), and (e) through (p) of section 413 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 853(b), (c), and (e)–(p)) shall apply to—

(A)property subject to forfeiture under this subsection;

(B)any seizure or disposition of such property; and

(C)any administrative or judicial proceeding in relation to such property, if not inconsistent with this subsection.

(4)Notwithstanding section 524(c) of title 28, there shall be deposited in the Crime Victims Fund in the Treasury all amounts from the forfeiture of property under this subsection remaining after the payment of expenses for forfeiture and sale authorized by law.

(i) In this section—

(1) the term “covered person” means an individual who—

(A) receives official access to classified information granted by the United States Government;

(B) signs a nondisclosure agreement with regard to such classified information; and

(C) is authorized to receive documents, writings, code books, signal books, sketches, photographs, photographic negatives, blueprints, plans, maps, models, instruments, appliances, or notes of anything connected with the national defense by—

(i) by the President; or

(ii) the head of a department or agency of the United States Government which is expressly designated by the President to engage in activities relating to the national defense; and

(2) the term “foreign agent”—

(A) has the meaning given the term “agent of a foreign power” under section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801); and

(B) does not include a person who is an agent of a foreign power (as so defined) with respect to a foreign power described in section 101(a)(5) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(a)(5)).

18 USC §798

(a)Any individual who knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information obtained by the individual while the individual was a covered person and acting within the scope of his or her activities as a covered person—

(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or

(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or

(3) concerning the communication intelligence activities of the United States or any foreign government; or

(4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes—

Shall be fined under this title or imprisoned not more than ten years, or both.

(b)As used in subsection (a) of this section:

(1) The term ‘classified information’—

(A) means information which, at the time of a violation of this section, is known to the person violating this section to be, for reasons of national security, specifically designated by a United States Government Agency for limited or restricted dissemination or distribution and;

(B) does not include any information that is specifically designated as ‘Unclassified’ under any Executive Order, Act of Congress, or action by a committee of Congress in accordance with the rules of its House of Congress.

(2) The terms ‘code’, ‘cipher’, and ‘cryptographic system’ include in their meanings, in addition to their usual meanings, any method of secret writing and any mechanical or electrical device or method used for the purpose of disguising or concealing the contents, significance, or meanings of communications.

(3) The term “communication intelligence” means all procedures and methods used in the interception of communications and the obtaining of information from such communications by other than the intended recipients.

(4) The term ‘covered person’ means an individual who—

(A) receives official access to classified information granted by the United States Government;

(B) signs a nondisclosure agreement with regard to such classified information; and

(C) is authorized to receive information of the categories set forth in subsection (a) of this section—

(i) by the President; or

(ii) the head of a department or agency of the United States Government which is expressly designated by the President to engage in communication intelligence activities for the United States

(5) The term “foreign government” includes in its meaning any person or persons acting or purporting to act for or on behalf of any faction, party, department, agency, bureau, or military force of or within a foreign country, or for or on behalf of any government or any person or persons purporting to act as a government within a foreign country, whether or not such government is recognized by the United States.

(6) The term “unauthorized person” means any person who, or agency which, is not authorized to receive information of the categories set forth in sub10 section (a) of this section by—

(A) the President;

(B) the head of a department or agency of the United States Government which is expressly designated by the President to engage in communication intelligence activities for the United States; or

(C) an Act of Congress.

(c)Nothing in this section shall prohibit the furnishing of information to—

(1) any Member of the Senate or the House of Representatives;

(2) a Federal court, in accordance with such procedures as the court may establish;

(3) the inspector general of an element of the intelligence community (as defined in section 3 of the National Security Act of 1947 (50 U.S.C. 3003)), including the Inspector General of the Intelligence Community;

(4) the Chairman or a member of the Privacy and Civil Liberties Oversight Board or any employee of the Board designated by the Board, in accordance with such procedures as the Board may establish;

(5) the Chairman or a commissioner of the Federal Trade Commission or any employee of the Commission designated by the Commission, in accordance with such procedures as the Commission may establish;

(6) the Chairman or a commissioner of the Federal Communications Commission or any employee of the Commission designated by the Com2 mission, in accordance with such procedures as the Commission may establish; or

(7) any other person or entity authorized to receive disclosures containing classified information pursuant to any applicable law, regulation, or executive order regarding the protection of whistleblowers.

(d)

(1) In this subsection, the term ‘foreign agent’—

(A) has the meaning given the term “agent of a foreign power” under section 101 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801); and

(B) does not include a person who is an agent of a foreign power (as so defined) with respect to a foreign power described in section 101(a)(5) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801(a)(5)).

(2) A foreign agent who—

(A) aids, abets, counsels, commands, induces, or procures the commission of an offense under this section shall be subject to prosecution under this section by virtue of section 2 of this title;

(B) knowing that an offense under this section has been committed by another person, receives, relieves, comforts, or assists such other person in order to hinder or prevent the apprehension, trial, or punishment of such other person shall be subject to prosecution under section 3 of this title;

(C) having knowledge of the actual commission of an offense under this section, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States shall be subject to  prosecution under section 4 of this title; or

(D) conspires to commit an offense under this section shall be subject to prosecution under section 371 of this title.

(3) Any person who is not a foreign agent shall not be subject to prosecution under this section by virtue of section 2 of this title or under section 3, 4, or 371 of this title, unless the person—

(A) commits a felony under Federal law in the course of committing an offense under this section (by virtue of section 2 of this title) or under section 3, 4, or 371 of this title;

(B) was a covered person at the time of the offense; or

(C) subject to paragraph (4), directly and materially aids, or procures in exchange for anything of monetary value, the commission of an offense under this section with the specific intent to—

(i) harm the national security of the United States; or

(ii) benefit any foreign government to the detriment of the United States.

(4) Paragraph (3)(C) shall not apply to direct and material aid that consists of—

(A) counseling, education, or other speech activity; or

(B) providing an electronic communication service to the public or a remote computing service (as such terms are defined in section 2510 and 2711, respectively)

(e)

(1)Any person convicted of a violation of this section shall forfeit to the United States irrespective of any provision of State law—

(A)any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation; and

(B)any of the person’s property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of, such violation.

(2)The court, in imposing sentence on a defendant for a conviction of a violation of this section, shall order that the defendant forfeit to the United States all property described in paragraph (1).

(3)Except as provided in paragraph (4), the provisions of subsections (b), (c), and (e) through (p) of section 413 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 853(b), (c), and (e)–(p)), shall apply to

(A)property subject to forfeiture under this subsection;

(B)any seizure or disposition of such property; and

(C)any administrative or judicial proceeding in relation to such property,
if not inconsistent with this subsection.

(4)Notwithstanding section 524(c) of title 28, there shall be deposited in the Crime Victims Fund established under section 1402 of the Victims of Crime Act of 1984 (42 U.S.C. 10601) [1] all amounts from the forfeiture of property under this subsection remaining after the payment of expenses for forfeiture and sale authorized by law.

(5)As used in this subsection, the term “State” means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States.

In a Totally Unresponsive Response to Reggie Walton’s Order, Kerri Kupec Does Not Deny that Bill Barr Misrepresented the Mueller Report

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Yesterday, Bill Barr’s flack Kerri Kupec issued a statement purporting to rebut what Reggie Walton (whom she didn’t name) wrote in his scathing opinion suggesting that Barr’s bad faith misrepresentations of the Mueller Report meant he couldn’t trust DOJ’s representations now about the FOIA redactions in it.

Yesterday afternoon, a district court issued an order on the narrow legal question of whether it should review the unredacted Special Counsel’s confidential report to confirm the report had been appropriately redacted under the Freedom of Information Act. In the course of deciding that it would review the unredacted report, the court made a series of assertions about public statements the Attorney General made nearly a year ago. The court’s assertions were contrary to the facts. The original redactions in the public report were made by Department attorneys, in consultation with senior members of Special Counsel Mueller’s team, prosecutors in the U.S. Attorney’s Office, and members of the Intelligence Community. In response to FOIA requests, the entire report was then reviewed by career attorneys, including different career attorneys with expertise in FOIA cases–a process in which the Attorney General played no role. There is no basis to question the work or good faith of any of these career Department lawyers. The Department stands by statements and efforts to provide as much transparency as possible in connection with the Special Counsel’s confidential report. [my emphasis]

It is being treated as a good faith response to what Walton wrote.

Except it’s not. It’s entirely off point.

Walton’s explanation for why he will conduct his own review of the the Mueller Report redactions doesn’t focus on the FOIA response itself. He addresses what happened before the redacted version of the Mueller Report was first released, before the FOIA review actually started.

The Court has grave concerns about the objectivity of the process that preceded the public release of the redacted version of the Mueller Report and its impacts on the Department’s subsequent justifications that its redactions of the Mueller Report are authorized by the FOIA.

[snip]

the Court is troubled by his hurried release of his March 24, 2019 letter well in advance of when the redacted version of the Mueller Report was ultimately made available to the public. The speed by which Attorney General Barr released to the public the summary of Special Counsel Mueller’s principal conclusions, coupled with the fact that Attorney General Barr failed to provide a thorough representation of the findings set forth in the Mueller Report, causes the Court to question whether Attorney General Barr’s intent was to create a one-sided narrative about the Mueller Report—a narrative that is clearly in some respects substantively at odds with the redacted version of the Mueller Report. [my emphasis]

That process preceded the FOIA response entirely, so the part of Kupec’s statement talking about the “good faith” of the “career Department lawyers” (of the sort that Barr is undermining with glee elsewhere) is irrelevant. And Kupec’s claim that Barr was not involved in that later process is also unrelated to whether he was involved in the initial redaction process, a question she doesn’t address.

As Walton notes, the redactions in the FOIA release exactly match those in the initial release, though the justifications are entirely different, which may mean those career attorneys had to come up with exemptions to match the outcome of the process in which Barr was involved.

[D]espite the Department’s representation that it “review[ed] the full unredacted [Mueller] Report for disclosure pursuant to the FOIA,” Brinkmann Decl. ¶ 11, the Court cannot ignore that the Department’s withholdings under the FOIA exemptions mirror the redactions made pursuant to Attorney General Barr’s guidance, which cause the Court to question whether the redactions are self-serving and were made to support, or at the very least to not undermine, Attorney General Barr’s public statements and whether the Department engaged in post-hoc rationalization to justify Attorney General Barr’s positions.

Kupec doesn’t even try to address the central claim of Walton’s opinion: that Barr’s public statements — about whether the report showed “coordination” or “collusion,” and about whether it showed Trump obstructed the investigation — conflict with what it already evident in the unredacted parts of the redacted Report.

As noted earlier, the Court has reviewed the redacted version of the Mueller Report, Attorney General Barr’s representations made during his April 18, 2019 press conference, and Attorney General Barr’s April 18, 2019 letter. And, the Court cannot reconcile certain public representations made by Attorney General Barr with the findings in the Mueller Report. The inconsistencies between Attorney General Barr’s statements, made at a time when the public did not have access to the redacted version of the Mueller Report to assess the veracity of his statements, and portions of the redacted version of the Mueller Report that conflict with those statements cause the Court to seriously question whether Attorney General Barr made a calculated attempt to influence public discourse about the Mueller Report in favor of President Trump despite certain findings in the redacted version of the Mueller Report to the contrary.

These circumstances generally, and Attorney General Barr’s lack of candor specifically, call into question Attorney General Barr’s credibility and in turn, the Department’s representation that “all of the information redacted from the version of the [Mueller] Report released by [ ] Attorney General [Barr]” is protected from disclosure by its claimed FOIA exemptions. Brinkmann Decl. ¶ 11 (emphasis added). In the Court’s view, Attorney General Barr’s representation that the Mueller Report would be “subject only to those redactions required by law or by compelling law enforcement, national security, or personal privacy interests” cannot be credited without the Court’s independent verification in light of Attorney General Barr’s conduct and misleading public statements about the findings in the Mueller Report, id., Ex. 7 (April 18, 2019 Letter) at 3, and it would be disingenuous for the Court to conclude that the redactions of the Mueller Report pursuant to the FOIA are not tainted by Attorney General Barr’s actions and representations.

That is, Walton judges that Barr’s lies about the Mueller Report tainted the subsequent process, no matter how many career Department attorneys were involved.

Significantly, Kupec offers no rebuttal — none — to Walton’s judgement that Barr misrepresented what the Report showed.

As I have noted, it’s unlikely Walton will release much more than was originally released (though he will surely be prepared to release all of the Roger Stone related materials once Amy Berman Jackson lifts that gag). But the three or four places where he might all undermine the tales that Barr told about the Report. Unsealing those redactions would:

  • Explain how the President and his son failed to cooperate
  • Confirm that his son (and possibly his son-in-law) was a subject of the investigation
  • Reveal how several of Trump’s flunkies told concerted lies before they decided to start telling the truth
  • Show why Mueller seriously considered indicting Stone — and possibly even the President himself — for their actions encouraging the hack-and-leak operation

Moreover, on one key point — the redactions for privacy that in the FOIA review were exempted under b6 and b7C — Barr’s initial claims about redactions are an obvious lie: he said those redactions hid “information that would unduly infringe on the personal privacy and reputational interests of peripheral third parties.” Among the people the initial review treated as “peripheral third parties” are Donald Trump Jr. and Deputy National Security Advisor KT McFarland; in Judge Jackson’s review in the Roger Stone trial, redactions protecting privacy and reputational interests even included the President himself.

Importantly, Walton’s in camera review will be critical for the next step, which will be a review of DOJ’s unprecedented b5 exemptions, which already show abundant evidence of politicization (and in which there is good reason to believe Barr has been involved). By reading the declination decisions pertaining to people like KT McFarland, Walton will understand how improper it is to redact her later 302s while releasing her earlier, deceitful ones.

If Kupec would like to do her job rather than play a key role in Barr’s ongoing propaganda effort about the Report, she can explain what role Barr had in that initial review, something not addressed in her off point comment. Even better, she can explain why the redactions on the underlying materials like 302s are so obviously politicized.

But given that she’s not even willing to deny that Barr misrepresented the initial report, I doubt she’ll issue any statement that offers useful commentary on this process.

20 Questions (Plus 5): The Joshua Schulte Jury Is Lost, Possibly Hopelessly

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According to InnerCity Press (virtually the only press covering the Schulte verdict watch), by end of day today the jurors had sent out 25 notes, most questions but also problems with two of the jurors. At the end of the day they told the Court they “aligned” on two of the charges, but were at an impasse on the other. Given that there’s slam dunk evidence that he committed the least serious crimes (false statements and contempt), that suggests at least some members of the jury have reasonable doubt that the guy who wrote a virtual signed confession to committing the most damaging leak in CIA history actually did so.

I wanted to collect the known questions from jurors to give a sense of what issues have driven this uncertainty.

Note 1: A request for a summary of exhibits

Note 2: A request for a transcript of the testimony of David, a CIA Sysadmin, particularly as regards what jurors may have mislabeled 1209-8 (David testified about Schulte’s failed attempt to access Altabackups with regards to exhibit 1202-8).

Note 3 asked 7 questions:

  1. What is included in Count Three? We aren’t sure what the purview is — articles, search warrants, tweets? This pertains to the Espionage Charge tied to posting classified information in one of his diaries, sending a diagram of CIA’s servers to WaPo reporter Shane Harris, and planning to reveal details about how a CIA hacking tool, Bartender, was used in the field (which certainly would expose CIA officers, and probably NOCs).
  2. In 2015, when DevLAN went down, was Schulte called to fix the problem? How did he fix it? Schulte’s lawyer, Sabrina Shroff, had made much of the fact that when Schulte was at a conference he got called about DevLAN going down. It’s not directly related to any of his charges.
  3. Can you please reread what was found on Schulte’s home computer? This would have focused on deleted materials (and the lack of classified information), but given that Juror 5 almost certainly knew about the child porn allegations and there was a focus on Schulte’s hosting of movies, this may have been what they were looking for.
  4. Did GX 809 reference Schulte’s taking a drug (“took my last piece”)? If so, what was it? Was it regular use? This refers to part of one page of his prison notebook in which he discusses  taking his “last piece” and envisioning himself as a Cardinal. It is entirely unrelated to his charges.
  5. Is it confirmed that Schulte’s been diagnosed with Aspergers Syndrome? One of the very senior CIA managers suggested to another that Schulte might have Asperbergers. It is entirely unrelated to his charges.
  6. For Count One, is Altabackups inclusive of Brutal Kangaroo? Is it inclusive of OSB libraries? The backup that Schulte is alleged to have stolen included both the libraries (which were not leaked) and Brutal Kangaroo (materials on which were leaked), but it included far more, but the parties did not answer this because they weren’t sure whether this was a network question or a charging one.
  7. Where were OSB libraries housed/where did they live? They were part of Stash.

Note Four: Can we please have simplified badge times/formats for Schulte on 4/20/16 in a format similar to GX 115. One piece of evidence that Schulte did the reversion during which the backup sent to WikiLeaks was stolen was that he was the only one in his SCIF with his computer during the time the commands doing the reversion were entered into it. The badge records would show that. Jurors did get simplified badge records.

Note Five: In Exhibit GX 107, what does lock/unlock computer mean in columns Source and Type? Is the computer locking itself? What is someone unlocking? This pertains to something tracked on CIA badge records and was not explained in testimony.

Note Six includes four questions:

  1. Is there evidence that April 18 and 20 were the only two times in 2016 that Schulte left the vault last? April 18, the day Schulte allegedly conducted reconnaissance on the backup files, and April 20, the day he allegedly stole him were the only two days he was the last person in his SCIF at RDB (the time period for which may include just the last seven months he worked at CIA).
  2. What does mount the Altabackups mean? This refers to how the CIA networks were set up, and Schulte’s role in doing that.
  3. What does create data store mean? This pertains to testimony about one attempt Schulte made to regain access to files he had been booted from.
  4. When someone logs out of a virtual machine, what happens to the log files from that session? There was no testimony on this point (jurors likely asked it to try to assess whether Schulte’s buddy Michael could have stolen the files).

Note Seven (Exhibits 16-17, I think) asked for the transcripts of Michael Berger (the FBI forensics expert who presented evidence of Schulte’s efforts to wipe evidence at home) and Michael (Schulte’s buddy who took a screen cap of him deleting logs).

Note Eight: Jurors complained that one of the jurors, Juror 4, was not deliberating with the rest of the jury and coming in late.

Note Nine included two questions:

  1. Can we please have testimony from Richard Evanchec. Evanchec is one of the FBI agents that interviewed Schulte and searched his home, and so is central to the false statements charges.
  2. What testimonies covered GX 1305-8 and GX 1305-9. Can we please have transcripts about that. These are Schulte’s Google records, which Evanchec also testified about.

Note Ten: Juror five has prior information, probably including details of Schulte’s child porn charges. She also looked up one of the lawyers. It became clear in a later sidebar that this is the juror who had said something inappropriate to another juror, possibly about deliberations, on February 13, during the trial.

Note Eleven included two questions:

  1. What happened to Schulte’s computers and workstation after he went to Bloomberg (after November 10)? This is likely a question testing a theory about whether someone — possibly Michael? — could have altered logs on Schulte’s computer after he left on November 10, 2016.
  2. When and where was Rufus’s SSH key found? Was it found in the home directory or was it found forensically? Schulte had stored the key of someone, Rufus, who had had Admin access but left, on his home directory. He used it when he was deleting logs on April 20. Sabrina Shroff had gotten one witness to testify that it was very easy to access other people’s home drives, so this is likely another effort to test an alternate culprit theory.

There were two more questions today (which I’ll update on Monday when that transcript is released):

  • Something about the CFAA charge, suggesting jurors are not treating the reversion as a hack, but might be treating Schulte booting his colleague off Brutal Kangaroo as one.
  • Something about unanimity on charges, possibly relating to the leaks from jail.

And then jurors told the court that they’re only in agreement on two charges, but stuck on the others.

For the reasons I laid out here — as well as the two problem jurors — I’m not surprised about that. And given the questions, it seems clear that the extended focus on Schulte’s employment disputes at the CIA made at least some of the jurors sympathetic to the idea that someone at CIA framed Schulte. Keep in mind, too, that Schulte adopted the moniker Jason Bourne in prison, so he fed that idea. And — as Shroff noted in her close — there was no good reason to focus on the continued employment disputes that extended two months after Schulte allegedly stole the files.

When the CIA puts its formers on trial, in my opinion, it believes the general population will be as outraged by a violation of CIA’s sacred trust as they themselves are. That may be why prosecutors aired that entire nasty employment dispute. But that’s generally not the case outside of EDVA, especially not in SDNY.

Between that, and the forensic complexity of this case, it appears the jury is lost.

Reminder; Calyx Institute and other donors sprung for the transcripts of this trial.

DOJ Is Abusing FOIA Exemptions to Hide Later, More Damning Testimony of Trump Aides

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The government has now “released” around 200 302s (FBI interview reports) in response to BuzzFeed/CNN’s FOIA. The vast majority of those, however, are heavily and at times entirely redacted. DOJ is using an unprecedentedly broad interpretation of the already badly abused b5 (deliberative) FOIA exemption to keep much of this hidden. This includes treating communications with the following people as “presidential communications:”

a. Donald Trump, President

b. Michael Pence, Vice President

c. John Kelly, Chief of Staff

d. Reince Priebus, Chief of Staff

e. Donald McGahn, Counsel to the President

f. Michael Flynn, National Security Advisor

g. Emmett Flood, Special Counsel to the President

h. Sean Spicer, Press Secretary

i. Sarah Huckabee Sanders, Deputy Press Secretary; Press Secretary

j. Robert Porter, Staff Secretary

k. Stephen Bannon, Chief Strategist and Senior Adviser to the President

l. Richard Dearborn, Deputy Chief of Staff

m. John Eisenberg, Deputy Counsel to the President and Legal Adviser to the National Security Council

n. K.T. McFarland, Deputy National Security Advisor

o. Uttam Dhillon, Deputy Counsel to the President

p. Annie Donaldson, Chief of Staff to the Counsel to the President

q. Jared Kushner, Senior Adviser to the President

r. Ivanka Trump, Senior Adviser to the President

s. Hope Hicks, Director of Strategic Communications; Director of Communications

t. Stephen Miller, Senior Adviser to the President

DOJ has offered a similar — albeit smaller — list (pages 16-17) of people covered by “Presidential” privileges during the Transition (yes, both Ivanka and Jared are on that list, too).

This is outright abuse, and given yesterday’s opinion stating he will review the existing redactions in the Mueller Report, I expect Judge Reggie Walton to deem it as such once the litigation rolls around to that point.

All the more so given that it can be demonstrably shown that DOJ is selectively releasing 302s such that Trump aides’ false statements are public, but their later more accurate (and damning) statements are hidden. There are at least three examples (Steve Bannon, KT McFarland, and Mike Flynn) where DOJ is still withholding later, more accurate statements while releasing earlier deceitful ones, and two more cases (JD Gordon and Sam Clovis) where DOJ may be hiding discussions of Trump pro-Russian policy stances. And in one case (Clovis), DOJ appears to have used a b3 (protected by statute) exemption that doesn’t appear to be justifiable.

Steve Bannon

Steve Bannon was interviewed on at least five occasions:

  • February 12, 2018: large swaths unredacted
  • February 14, 2018: Heavily redacted under both b5 and (pertaining to WikiLeaks, Stone, and Cambridge Analytica, ongoing investigation), but with key passages revealed
  • October 26, 2018: Not yet released
  • January 18, 2019: Proffer released, but 302 not yet released
  • Unknown date (in advance of Stone trial): Not yet released

There are significantly redacted discussions (protected under ongoing investigation redactions) in Bannon’s February 14 302 that conflict with his later public admissions. And Bannon’s testimony in the Roger Stone trial shows that his 302s — including the trial prep one — conflict with his grand jury testimony. What has thus far been made public includes denials of coordination on WikiLeaks that both his October 2018 and January 2019 302s must contradict. Yet DOJ has not released the later, more damning 302s yet.

KT McFarland

As has been publicly reported, KT McFarland at first lied to the FBI but — in the wake of Mike Flynn’s plea deal — unforgot many of the key events surrounding discussions about sanctions during the Transition. While DOJ has not yet released her first 302, the others are, in general, lightly redacted. They show how she appears to have told a cover story about discussions about sanctions during the Transition. The 302 in which she cleaned up her testimony, which would show what really happened during the Transition, is largely redacted.

  • August 29, 2017: Not yet released
  • September 14, 2017: Lightly redacted (though hiding details of Tom Bossert email and her claims about the Flynn sanctions discussion)
  • October 17, 2017: Lightly redacted, though with some Mar-a-Lago and sanctions cover story details redacted
  • October 19, 2017: Significantly redacted
  • December 5, 2017: Lightly redacted; this captures McFarland’s panic in the days after Flynn’s plea
  • December 22, 2017: Very heavily redacted

Mike Flynn

Mike Flynn’s initial 302, from January 24, 2017, has been public for some time. Flynn has twice admitted, under oath, that he lied in that 302.

None of his other Russia-related 302s, including those where he corrected his story in November 2017, have been made public (though DOJ may be withholding these because he has not yet been sentenced). Among the 302s DOJ is withholding involves at least one describing how the Trump campaign discussed reaching out to WikiLeaks after the John Podesta emails dropped.

JD Gordon

JD Gordon’s testimony was critical to Mueller’s finding that Trump and Paul Manafort had no personal involvement in preventing convention delegate Diane Denman from making the RNC platform more hawkish on Ukraine. Details of this investigation into Gordon’s role appear entirely unredacted in the DOJ IG Report on Carter Page as part of the case that FBI should have removed any claim that Page was involved in the platform.

Gordon’s first interview is largely unredacted. It soft-pedals Trump’s pro-Russian stance on the campaign.

GORDON flagged DENMAN’s amendment because TRUMP had mentioned not wanting to start World War III over Ukraine. TRUMP had mentioned this both in public and in private, including at the campaign meeting on March 31, 2016. This was not GORDON’s stance but TRUMP’s stance on Ukraine.

[snip]

DENMAN [redacted] and asked GORDON what he had against the free people. GORDON explained TRUMP’s statements regarding World War III to her. She asked why they were there and who GORDON was on the phone with. GORDON told her he was on the phone with his colleagues but didn’t provide names.

But Gordon’s final 302 is largely redacted, though it leaves unredacted the World War III excuse. Some of the redactions appear to hide Gordon’s testimony about the things Trump said in campaign appearances that Gordon used to explain his intervention in the Convention.

There is also discussion in his last interview about whether he consulted with Jeff Sessions on the platform issue during phone calls placed at the time (which he denied he had).

The Mueller Report also describes how Sergey Kislyak invited Gordon to his residence in DC shortly after the convention; that reference is based entirely on emails exchanged between the two; it would be worthwhile to know what he said if he was asked about the invite in his FBI interviews, but if so, it is redacted.

Sam Clovis

Sam Clovis appears to have had three interviews, though it seems Mueller’s team may never have trusted his testimony. The interviews are cited just three times in the Mueller Report, and he makes denials in his interviews that conflict with communication-based evidence laid out in the Mueller Report and what he is reported to have told Stefan Halper in the DOJ IG Report on Carter Page (PDF 367-370). Clovis’ testimony is particularly important because he claims there was a shift in policy towards Russia during the campaign, but his released testimony is inconsistent on that point.

Clovis was first interviewed on October 3, 2017 at his office at USDA. The 302 makes clear that “about a quarter of the way through the interview, CLOVIS was warned that lying to the agents could constitute a federal offense.” In that interview, Clovis makes extremely strong denials about Russia.

CLOVIS started off the interview by explaining that he hates Russia and that should be clear throughout his interview.

[snip]

Russia was never a topic between CLOVIS and TRUMP. They would occasionally discuss it in debate prep. CLOVIS did most of the debate prep during the primaries. They talked about a Ukrainian policy and discussed having a bipartisan approach to this because of the divided based on Ukraine.

[snip]

A lot of people approached the campaign with ideas about foreign policy topics. Some of them wanted to approach and engage Russia but CLOVIS never trusted RUSSIA.

[snip]

CLOVIS thought interacting with Russia was a bad idea on any level because of comments TRUMP made.

[snip]

CLOVIS thinks the Special Counsel investigation is more political than practical. From CLOVIS’ perspective he didn’t see anything that warranted an investigation. CLOVIS said the campaign didn’t have anything to do with Russians. No one advised anyone to meet with Russians. CLOVIS wanted nothing to do with Russia and would never approve a meeting with the Russians. CLOVIS explained that Russians are different with Russia. You can’t just sit down at the table with them.

[snip]

CLOVIS does not recall Russia being brought up in the March 31, 2016 meeting.

[snip]

PAGE had an interesting background, including time in the Navy, experience in energy policy and Russian business. They were rushed into putting a foreign policy team together. CLOVIS thought PAGE was pretty harmless but also didn’t provide much value. CLOVIS said he never talked to PAGE about meetings with Russia and doesn’t remember PAGE ever bringing up Russia.

[snip]

CLOVIS didn’t think the change [in platform] was in line with TRUMP’s stance. CLOVIS thought their plan was to support Ukraine in their independence by engaging their NATO allies. CLOVIS is concerned PUTIN is trying to establish a Soviet empire.

That very same day, the FBI interviewed Clovis a second time, also in his USDA office. In the second interview, Clovis made comments that probably conflict with what Clovis told Stefan Halper in August 2016.

CARTER PAGE and GEORGE PAPADOPOULOS were not involved with the campaign team. They were not players in the campaign.

More importantly, in the second interview — on the same day!! — Clovis admitted that Trump did want better ties with Russia.

TRUMP wanted improved relations with Russia. The “bromance” TRUMP had with PUTIN bothered CLOVIS but the press and the public fed on it. CLOVIS felt like he had to cleanup with a shovel because TRUMP played up his bromance with PUTIN for the public.

Clovis also denied discussions of a trip to Russia that the FBI had proof he was personally involved in.

CLOVIS was asked about emails regarding an “unofficial trip” to Russia which were discussed in a Washington Post article. CLOVIS indicated this was info he was not privy to. CLOVIS said he doesn’t know who would have authorized such meetings but he never gave PAPADOPOULOS any indication to setup meetings.

CLOVIS denied learning about any dirt on Hillary, something that Papadopoulos provided conflicting testimony on.

CLOVIS was asked if he ever heard anyone discuss Russians having dirt on HILLARY CLINTON. CLOVIS said he wasn’t aware of that and if someone had that info they probably wouldn’t bring it to CLOVIS. CLOVIS pointed out that he was never asked to do anything untoward.

And in this second interview, Clovis softened on whether anyone had been compromised by Russia.

CLOVIS further explained how Russia can be very sneaky and will try to distract you on one side while sneaking by you on the other side. They will use any mechanism they can. CLOVIS fought them for years. CLOVIS didn’t feel like there was anything going on with the campaign though.

The interview ends with what may to be a discussion about a subpoena.

CLOVIS asked the agents [redacted] since he had cooperated. He was concerned about his travel plans and indicated he planned on leaving [redacted] and returning to D.C. [redacted] Agents agreed to [redacted] but said they would contact him later with information [redacted].

Note, the most substantive redactions in these two 302s have b3 redactions, which covers information “exempted from disclosure by statute.” While some of the last paragraph might be a discussion about serving a grand jury subpoena, none of the rest of it should be. And in other 302s, discussions of the same events (such as the March 31 meeting) are not redacted under b3 exemptions. It is hard to see how that redaction is permissible.

Clovis’ October 26 interview is entirely redacted under b5 exemptions.

We Don’t Do That

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Go read this article by David Roth at the Columbia Journalism Review, it is brutally true. Here is a taste, but do read the whole thing:

It all happened in the way that decline generally happens in American culture, which is one anxious, hopeful, cynical capitulation at a time. We have compressed and corroded and finally collapsed what used to be the core of a publication—its relationship with its readers, and the basic notion that one should not make it hard for them to read.

It goes without saying that everyone involved is perpetually maxed-out and stressed and scrabbling for a dwindling and finite amount of money in an arbitrary and artificially constricted ad economy that runs on wobbly, untrustable, and easily manipulated data. (A friend who works in advertising operations described the work as “a game of catching falling knives.”)

In the last half-decade, ads have rapidly migrated from the sides and top of the page into the actual text. This is the result of pressures created by the transition from desktop computers to mobile devices. The ads need to get seen on a screen with no margins.

The ads that stalk you down the page reflect advertisers’ demands that their ads remain “in view.” And all the clammy unbidden video stuff is exactly as desperate as it looks. Not many people will watch video ads if given any choice in the matter. Taking choice out of the equation helps a lot.

Some sites have deliberately made the experience of reading them for free more assaultive, in order to bully readers into buying subscriptions. For the price of a small monthly indulgence on your end, it can all go back to normal and your laptop’s fan can finally turn off.

And then take a look at the site/forum you are currently reading on, Emptywheel. There is no infinite scroll. There are no ads, pop up or otherwise. There is nothing but…..content. And it is free. If you have a few extra shekels or rubles, consider throwing them Marcy’s way (there are all kinds of links for this on the right margin). It helps. And thank you to all who come here.

Amid Discussions of FISA Reform, James Boasberg Pushes for Greater Reform

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It’s not entirely clear what will happen in a few weeks when several existing FISA provisions expire; there are ongoing discussions about how much to reform FISA in the wake of the Carter Page IG Report. But before anyone passes legislation, they would do well to read the order presiding FISA Judge James Boasberg issued yesterday.

On its face, Boasberg’s order is a response to DOJ’s initial response to FISC’s order to fix the process, Amicus David Kris’ response to that, and DOJ’s reply to Kris. The order ends by citing In re Sealed Case, the 2002 FISCR opinion that limited how much change the FISA Court can demand of DOJ, and “acknowledging that significant change can take time, and recognizing the limits of its authority.” By pointing to In re Sealed Case, Boasberg highlights the limits of what FISC can do without legislation from Congress — and, importantly, it highlights the limits of what FISC could do to improve the process if Bill Barr were to convince Congress that DOJ can fix any problems itself, without being forced to do so by Congress.

After invoking In Re Sealed Case, Boasberg orders reports (due March 27, May 4, May 22, June 30, and July 3) on the progress of a number of improvements. He orders that any DOJ or FBI personnel under disciplinary or criminal review relating to work on FISA applications may not participate in preparing applications for FISC, and he requires additional signoffs on applications, including Section 215 orders, which currently don’t require such affirmations.

Boasberg recognizes that DOJ, not just FBI, needs to change

Remarkably, Boasberg notes what I have — the IG Report provides evidence, its focus on FBI notwithstanding, that some of the blame for the Carter Page application belongs with DOJ, not FBI.

According to the OIG Report, the DOJ attorney responsible for preparing the Page applications was aware that Page claimed to have had some type of reporting relationship with another government agency. See OIG Rpt. at 157. The DOJ attorney did not, however, follow up to confirm the nature of that relationship after the FBI case agent declared it “outside scope.” Id. at 157, 159. The DOJ attorney also received documents that contained materially adverse information, which DOJ advises should have been included in the application. Id. at 169-170. Greater diligence by the DOJ attorney in reviewing and probing the information provided by the FBI would likely have avoided those material omissions.

As a result, Boasberg requires the DOJ attorney signing off on a FISA application to attest to the accuracy of it as well. He also suggests DOJ attorneys “participate in field-office visits to assist in the preparation of FISA applications.”

Boasberg recognizes that DOJ’s existing plan doesn’t address any root cause

Similarly, Boasberg recognizes that if the real problem with the Carter Page FISA applications involved information withheld from the application, improving the Woods procedure won’t fix the problem. In an extended section on oversight, Boasberg strongly suggested that DOJ needs to review whether information was withheld from the application.

Amicus agrees that reviews designed to elicit any pertinent facts omitted from the application, rather than merely verifying the facts that were included, would be extremely valuable, but also recognizes that such in-depth reviews would be extremely resource intensive. See Amicus Letter Br. at 12. He thus recommends that such reviews be conducted periodically at least in some cases and, echoing Samuel Johnson, advises that selection of cases for such reviews should be unpredictable because the possibility that any case might be reviewed “should help concentrate the minds of FBI personnel in all cases.” Id. In its response, the government advised that “it will expand its oversight to include additional reviews to determine whether, at the time an application is submitted to the FISC, there was additional information of which the Government was aware that should have been included and brought to the attention of the Court.” Resp. to Amicus at 13. DOJ advised, however, that given limited personnel to conduct such reviews, it is still developing a process for such reviews and a sampling methodology to select cases for review. ld. The Court sees value in more comprehensive completeness reviews, and random selection of cases to be reviewed should increase that value. As DOJ is still developing the necessary process and methodology, the Court is directing further reporting on this effort.

Amicus also encouraged the Court to require a greater number of accuracy reviews using the standard processes already in place. See Amicus Letter Br. at 12. He believes that the FBI and DOJ have the resources to ensure that auditing occurs in a reasonable percentage of cases and suggested that it might be appropriate to audit a higher percentage of certain types of cases, such as those involving U.S. persons, certain foreign-agent definitions, or sensitive investigative matters. Id. The government did not address Amicus’s recommendation that it increase the number of standard reviews.

Even though accuracy reviews are conducted after the Court has ruled on the application in question, the Court believes that they have some positive effect on future accuracy. In addition to guarding against the repetition of errors in any subsequent application for the same target, they should provide a practical refresher on the level of rigor that should be employed when preparing any FISA application. It is, however, difficult to assess to what extent accuracy reviews contribute to the process as a whole, partly because it is not clear from the information provided how many cases undergo such reviews. The Court is therefore directing further reporting on DOJ’s current practices regarding accuracy reviews, as well as on the results of such reviews.

Finally, the FBI has directed its Office of Integrity and Compliance to work with its Resource Planning Office to identify and propose audit, review, and compliance mechanisms to assess the effectiveness of the changes to the FISA process discussed above. See OIG Rpt. app. 2 at 429. Although the Court is interested in any conclusions reached by those entities, it will independently monitor the government’s progress in correcting the failures identified in the OIG Report.

Again, as I already noted, Boasberg himself found DOJ’s oversight regime inadequate in a 702 opinion written last year. He knows this is insufficient.

But as noted above, all Boasberg can do is order up reports and attestations.

At a minimum, Congress should put legal language behind the oversight he has now demanded twice.

A far better solution, however, would be to provide the oversight on FISA applications that other criminal warrant applications receive: review by defense attorneys in any cases that move to prosecution, which by itself would build in “unpredictabl[y] because the possibility that any case might be reviewed.”

James Boasberg, the presiding judge of the FISA court, issued an order in the middle of a debate about reform that points to several ways FISA should be improved, ways that the he can’t do on his own.

Congress would do well to take note.

The Recruitment of Jared Kushner

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The other day, DOJ provided its sixth installment of Mueller 302s in response to BuzzFeed and CNN’s FOIAs. The batch includes files that have previously been referred to other agencies, such as multiple pages from Steve Bannon’s February 14, 2018 interview that were sent to DOD, which has determined they must be protected under b5 (deliberative) and one b4 (trade secrets) exemption.

A whole set of previously referred interview reports pertain to Russian outreach to Jared Kushner. These reports include:

In addition, the 302 of Richard Burt and some other people from Center for National Interest — Simes’ think tank — were released.

As a reminder, CNI served as the host for Trump’s first foreign policy speech on April 27, 2016. There were allegations that CNI provided feedback on the speech and questions about whom Sergey Kislyak spoke with at the speech. Simes continued to advise Kushner on policy pertaining to Russia throughout the campaign. When Kushner wanted to vet an email from Vladimir Putin immediately after the election, he reached out to Simes for Kislyak’s contact information. Then, a series of meetings arranged via Kislyak during the Transition, during one of which Kushner asked for a back channel, resulted in a meeting with the head of sanctioned bank, Vnesheconombank, Sergei Gorkov.

Parallel to the Kislyak-led effort, Russia made three other attempts to establish a back channel during the Transition. One, via Robert Foresman reaching out to Mike Flynn, one via CNI Board Member and Alfa Bank board member Richard Burt through Simes, and a third — the most successful — in which Kirill Dmitriev reached out first via George Nader and then through Kushner’s college buddy Rick Gerson.

None of these newly released interview reports have exemption markings akin to the ones on Bannon’s reprocessed pages describing which agency they had been referred to (which may suggest they were reviewed by CIA), but they seem to pertain to the cultivation of the President’s son-in-law.

To be very clear: while Dmitriev, using Gerson, succeeded in setting the agenda for the first phone call between Putin and Trump, the Mueller Report found no evidence that Russia succeeded in using CNI has a back channel.

The investigation did not identify evidence that the Campaign passed or received any messages to or from the Russian government through CNI or Simes.

That said, all of this remains appears to remain under active investigation. Between Simes’ first and second interviews, over 200 redactions cite a b7A exemption for an ongoing investigation; many of those also cite b3, which may indicate classified information. 25 redactions in Burt’s interview cite b7A and there are a number of b3 exemptions. Four paragraphs in what may be a continuation of the Simes discussion in Kushner’s interview include b7A redactions. There are also b7A redactions (some also marked b3) in the interview reports of fellow CNI employees, Jacob Heilbrunn and Paul Saunders.

And while the available reports suggest Kushner was just an easy mark in all of this (as he likely is for all the foreign countries he negotiates with — there’s nothing unique about Russia here), there are a few details about how this got written up in the Mueller Report worth noting. For example, the Mueller Report describes Kushner reaching out to Simes because they had so little support from experienced foreign policy people.

Kushner told the Office that the event came at a time when the Trump Campaign was having trouble securing support from experienced foreign policy professionals and that, as a result, he decided to seek Simes’s assistance during the March 14 event.

The underlying 302 report describes Kushner “admitt[ing] to ‘pursuing’ SIMES.”

A paragraph in the Mueller Report describing Kushner’s periodic contact with Simes during the campaign depicts Kushner as the passive recipient of Simes’ attention.

Between the April 2016 speech at the Mayflower Hotel and the presidential election, Jared Kushner had periodic contacts with Simes.648 Those contacts consisted of both in-person meetings and phone conversations, which concerned how to address issues relating to Russia in the Campaign and how to move forward with the advisory group of foreign policy experts that Simes had proposed.649 Simes recalled that he, not Kushner, initiated all conversations about Russia, and that Kushner never asked him to set up back-channel conversations with Russians.650 According to Simes, after the Mayflower speech in late April, Simes raised the issue of Russian contacts with Kushner, advised that it was bad optics for the Campaign to develop hidden Russian contacts, and told Kushner both that the Campaign should not highlight Russia as an issue and should handle any contacts with Russians with care.651 Kushner generally provided a similar account of his interactions with Simes.652

648 Simes 3/8/18 302, at 27.

649 Simes 3/8/18 302, at 27.

650 Simes 3/8/18 302, at 27.

651 Simes 3/8/18 302, at 27. During this period of time, the Campaign received a request for a high-level Campaign official to meet with an officer at a Russian state-owned bank “to discuss an offer [that officer] claims to be canying from President Putin to meet with” candidate Trump. NOSC00005653 (5/17/16 Email, Dearborn to Kushner (8: 12 a.m.)). Copying Manafort and Gates, Kushner responded, “Pass on this. A lot of people come claiming to carry messages. Very few are able to verify. For now I think we decline such meetings. Most likely these people go back home and claim they have special access to gain importance for themselves. Be careful.” NOSC00005653 (5/17/16 Email, Kushner to Dearborn).

652 Kushner 4/11 /18 302, at 11-13.

But the unredacted details in Kushner’s 302 are of interest. They describe Simes sending Kushner a “memo on what Mr. Trump may want to say about Russia.” And in his interview, Kushner described never receiving information from Simes that could be “operationalized” (this passage appears before a description of Simes floating dirt on Clinton).

Similarly, the Mueller Report does not include something that appears in Kushner’s 302 describing the President’s son-in-law asking for a back channel, that Kushner asked to be connected with people “who can make decisions.” Days later, of course, Kislyak started to set up the meeting with Sergei Gorkov.

The Report notes that these meetings took place in either Kushner’s office or that of Colony Capital (Tom Barrack’s office). But the passage from Kushner’s 302 which the Report cites for the location of the Gorkov meeting (page 19) remains redacted.

The one-on-one meeting took place the next day, December 13, 2016, at the Colony Capital building in Manhattan, where Kushner had previously scheduled meetings. 1152

1152 Kushner 4/11/18 302, at 19; NOSC00000130-135 (12/12/16 Email, Kushner to Berkowitz).

And there’s a detail made public since the Mueller Report that suggests Kushner may not have been entirely candid in his interview: in testimony before Congress last year, Rex Tillerson disputed a key detail from Kushner’s testimony — that he had passed along a document from Dmitriev shared via Rick Gerson. There’s no record Mueller interviewed Tillerson.

To be fair, DOJ has released two details not included in the Mueller Report, which by the standards of this FOIA release is generous. Yet Jared also happens to be a top Trump advisor — the beneficiary of absurd levels of nepotism — involved in every aspect of foreign policy. He could not obtain security clearance on his own. And the details of these FOIA releases suggest that’s because it’s not yet clear what happened with Russian efforts to cultivate him during the election.

Given how the Mueller Report leaves out key details of Kushner’s vulnerability to such cultivation, DOJ should be forced to release more of this 302.