Mike Flynn Seizes the Rope to Hang Himself With: Pick Your Perjury

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As I noted Wednesday, Mike Flynn’s legal team and the government submitted a bunch of filings.

In this post, I suggested (controversially) that prosecutors may have had a different purpose for raising probation in their reply to Flynn’s sentencing memo, to remind Judge Emmet Sullivan how pissed he gets when powerful people demand special treatment that the little people go to prison for. In this post, I suggested that Flynn’s motion to dismiss would be better suited if Sidney Powell were representing Carter Page, not Flynn.

In this post, I’ll cover the meat of the issue, Flynn’s attempt to withdraw his guilty plea, made twice, under oath.

Before I get into that meat, though, note that with a sworn declaration Flynn submitted with this filing, he has given four sworn statements in this matter:

  • December 1, 2017: Mike Flynn pled guilty before Judge Rudolph Contreras to lying in a January 24, 2017 FBI interview.
  • December 18, 2018: Mike Flynn reallocuted his guilty plea before Judge Emmet Sullivan to lying in a January 24, 2017 FBI interview.
  • June 26, 2018: Mike Flynn testified to an EDVA grand jury, among other things, that “from the beginning,” his 2016 consulting project “was always on behalf of elements within the Turkish government,” he and Bijan Kian would “always talk about Gulen as sort of a sharp point” in relations between Turkey and the US as part of the project (though there was some discussion about business climate), and he and his partner “didn’t have any conversations about” a November 8, 2016 op-ed published under his name until “Bijan [] sent me a draft of it a couple of days prior, maybe about a week prior.” The statements conflict with a FARA filing submitted under Flynn’s name.
  • January 29, 2020: Mike Flynn declared, under oath that, “in truth, I never lied.”

Understand that from the moment Judge Emmet Sullivan picks up this motion to withdraw his plea, Sullivan will be faced with Flynn claiming he lied, at least once, under oath. Take your pick which one of these statements under oath Flynn now claims to be a lie, but at least one of them necessarily is. And Sullivan has made it clear he plans to put Flynn back under oath to resolve all this.

That’s the hole that Sidney Powell has crafted for her client to dig his way out of, a sworn statement that conflicts with two earlier ones, and sworn testimony that conflicts with her primary basis for withdrawing this plea.

Almost no mention of his lies about Russia

From there, she provides her client little help from the primary task before him: explaining why he is withdrawing his guilty plea that primarily relates to his January 24, 2017 FBI interview. In the first paragraph of her motion, she asserts that Mike Flynn does maintain he did not lie on January 24, 2017, meaning he lied under oath before both Contreras and Sullivan when he said he did.

Michael T. Flynn (“Mr. Flynn”) does maintain that he is innocent of the 18 U.S.C. §1001 charges; and he did not lie to the FBI agents who interviewed him in the White House on January 24, 2017.

She offers several different explanations for why her client apparently perjured himself twice before judges. The most sustained one — one Flynn fans have made persistently — is that he now thinks the agents didn’t actually believe he lied because they “saw no indications of deception” from Flynn, meaning that he didn’t act like he was lying. Bizarrely, one of the things Flynn includes in his sworn declaration is that he has a history of not being candid about sensitive and classified subjects with anyone who is not his superior (though I would imagine that his former superior James Clapper would argue even this is not true).

My baseline reaction to questions posed by people outside of my superiors, immediate command, or office of responsibility is to protect sensitive or classified information, except upon “need to know” and the proper level of security clearance. That type of filter is ingrained in me and virtually automatic after a lifetime of honoring my duty to protect the most important national and military secrets.

In short, Flynn claims under oath that he has a habit of not telling the truth about classified or sensitive matters. He doesn’t quite say that’s what happened here, but since he has stated under oath he knew that it was a crime to lie to the FBI and he knew the people interviewing him would have had access to transcripts of his calls with Sergei Kislyak, has has provided evidence, under oath, that he knew these FBI agents were people he had to tell the truth to and were included among those with the “need to know” about what he said to Kislyak. But the explanation that he has a virtually automatic filter that leads him not to tell the truth about sensitive information does explain why agents might observe that he had a sure demeanor even while knowing he lied: Flynn has had a lot of practice lying.

Now, this by itself surely can’t get him out of his conflicting sworn statements that he didn’t lie but he did.

So Flynn blames his former lawyers.

As part of a broader strategy to claim that Flynn’s Covington team was incompetent, Sidney Powell claims (relying on Flynn’s declaration) that when the government made it clear to his lawyers they knew he had been lying, Flynn asked his lawyers “to make further inquiry with the SCO prosecutors about whether the FBI agents believed I had lied to them” (Flynn’s declaration is internally contradictory on this point, because he claims he heard rumors they didn’t believe this by November 30 but then, seven paragraphs later, he claims he never heard those rumors before he pled guilty on December 1). His attorney inquired and came back with the truthful response that the “agents stand by their statements.” Flynn claims that his attorneys did not tell him what he claims to be a critical detail, that the agents thought he sounded like he was telling the truth even though abundant other evidence (including Peter Strzok’s texts to Lisa Page, written before any draft 302s) make it clear they knew he was lying.

The information that counsel withheld concerned prior statements that the two FBI agents who interviewed Mr. Flynn in the White House had made about his “sure demeanor,” the lack of “indicators of deception,” and similar observations. Exs. Michael Flynn Declaration;Lori Flynn Declaration.

In an earlier round of briefing in this case, the government represented that it had communicated this information to the defendant on the day that the plea agreement was signed, November 30, 2017 [Gov’t’s Opp’n, ECF No. 122 at 16]. In its December 16, 2019 Opinion, moreover, this Court accepted and relied on that representation [Memorandum Opinion, ECF No. 144 at 32].As the Flynn Declarations demonstrate, however, that representation was mistaken: the government almost certainly made a disclosure to the defendant’s counsel on that day, but Covington did not then communicate the information to the defendant himself. Of course, in the vast majority of cases, communication to counsel is communication to the client, but it was not that day.

Flynn now claims it would have changed his mind to plead guilty if he learned that the FBI agents thought he was a pretty convincing liar, but his lawyers incompetently didn’t share that detail with him.

But wait.

There’s more.

Powell also suggests that the way the FBI investigated Flynn — first by monitoring how he responded to Trump’s first national security briefing (the one Flynn attended while secretly signing up to work for the Turkish government) and then by interviewing him in the White House — is proof they weren’t really investigating him.

Meanwhile, on January 24, 2017, as we have briefed elsewhere, FBI Director Comey and Deputy Director McCabe dispatched Agents Strzok and “SSA 1” to the White House— deliberately contrary to DOJ and FBI policy and protocols—without notifying DOJ.9

9 This was actually the FBI’s second surreptitious interview of Mr. Flynn—without informing him even so much as that he was the subject of their investigation. SSA 1 had “interviewed him” in a “sample Presidential Daily Briefing” (“PDB”) on August 17, 2016—unbeknownst to anyone outside the FBI or DOJ until revealed in the recent Inspector General Report of December 9, 2019.

This also goes to Mr. Flynn’s claim of actual innocence. Against the baseline interview the FBI surreptitiously obtained under the guise of the PDB (in August 2016), the agents conducted the White House interview and immediately reported back in three extensive briefings during which both agents assured the leadership of the DOJ and FBI they “saw no indications of deception,” and they believed so strongly that Mr. Flynn was shooting straight with them that Strzok pushed back against Lisa Page’s disbelief and Deputy Director McCabe’s cries of “bullshit.” ECF No. 133-2 at 4. This development is addressed in Flynn’s Motion to Dismiss for Egregious Government Misconduct filed contemporaneously herewith.

[snip]

The electronic communication written by SSA 1 arising from the presidential briefing was approved by Strzok. It was uploaded into Sentinel August 30, 2016. IG Report at 343 and n. 479. In truth, but unknown to Mr. Flynn until the release of this Report, SSA1 was actually there because he was investigating the candidate’s national security advisor as being “an agent of Russia.” This report of that interaction including purported statements by Mr. Flynn was put it in a sub-file of the Crossfire Hurricane file. That, and the DOJ document completely exonerating Mr. Flynn of that slanderous assertion, has never been produced to Mr. Flynn. This was extraordinary Brady and Giglio information that should have been provided to Mr. Flynn by Mr. Van Grack no later than upon entry of this Court’s Brady order

[snip]

With every disclosure and IG Report of the last eighteen months, it has become increasingly clear the FBI was not trying to learn facts from Mr. Flynn on January 24, 2017. Rather, the Agents were executing a well-planned, high-level trap that began at least as far back as August 15, 2016, when Strzok and Page texted about the “insurance policy” they discussed in McCabe’s office, opened the “investigation” on Mr. Flynn the next day, and inserted SSA 1 surreptitiously into the “sample PDB” the next day to investigate and assess Mr. Flynn.

Even if these assertions were true, none of it rebuts that Flynn told lies in that interview.

Which is probably why Powell goes on to argue that the answers that Flynn claims weren’t lies weren’t material to the FBI investigation, based in part on Judge Sullivan’s comments from the December 2018 sentencing hearing that probably were more indication that he wanted prosecutors to lay out how bad Flynn’s lies were.

Finally, the Court was not satisfied with the factual basis for the plea. It said it had “many, many, many questions.” Hr’g Tr. Dec. 18, 2018 at 20. The Court, sensing the materiality issues in the case, specifically left those questions open for another day. Id. at 50. 40

40 The element of materiality boils down to whether a misstatement “has a natural tendency to influence, or was capable of influencing, the decision of the decision-making body to which it was addressed.” United States v. Gaudin, 515 U.S. 506, 522-23 (1995). In applying this rule, courts analyze the statement that was made and the decision that the agency was considering. Universal Health Services, Inc. v. U.S. ex rel. Escobar, 136 S. Ct. 1989, 2002-03 (2016). For a misstatement to be material, the agency must show that it would have made a different decision had the defendant told the truth.

The government alleges misstatements that were not material because the FBI agents did not come to the White House for a legitimate investigative purpose; they did not come to investigate an alleged crime. Instead, they came to get leverage over Mr. Flynn at a time when they felt the new administration was still disorganized. So they ignored policies and procedures. They went around the Department of Justice and the White House Counsel’s office, and they walked into the National Security Advisor’s office under false pretenses. They decided not to confront Mr. Flynn with any alleged misstatement not for a legitimate law enforcement purpose, but rather because they did not know if the effort to purge him from his office would be successful. If it was not, they wanted to maintain a collegial working relationship with him. If Mr. Flynn had answered the questions the way in which they imagine he should, nothing at all would have changed in the actions the FBI would have taken.

Powell, of course, presents no evidence for these wild claims. Moreover, she ignores the evidence of materiality that prosecutors submitted in their own sentencing memo.

The topic of sanctions went to the heart of the FBI’s counterintelligence investigation. Any effort to undermine those sanctions could have been evidence of links or coordination between the Trump Campaign and Russia.

She ignores, too, that prosecutors put her on notice that they’re going to show that Flynn continued to lack candor in his first meetings with Mueller’s team, a team that did not include either of the FBI agents she says had it in for her client.

Based on filings and assertions made by the defendant’s new counsel, the government anticipates that the defendant’s cooperation and candor with the government will be contested issues for the Court to consider at sentencing. Accordingly, the government will provide the defendant with the reports of his post-January 24, 2017 interviews. The government notes that the defendant had counsel present at all such interviews.

Flynn’s declaration actually accords with this. He describes how, after his first interview with Mueller’s prosecutors, “my attorneys told me that the first day’s proffer did not go well.” It wasn’t until several more meetings before Mueller’s team gave Flynn’s attorneys his first 302, which made it clear how dramatically he had lied.

All of which is to say that Powell’s most robust support for Flynn’s claim that he didn’t lie is that FBI agents believed he had lied well, which probably isn’t going to convince Sullivan to let him withdraw his sworn plea that he did in fact lie.

Cursory consideration of Cray

That makes it all the more problematic that Powell barely addresses what Judge Sullivan told both sides to: a hearing with sworn witnesses and to address US v Cray. True, she does say that if the government doesn’t agree with this motion Sullivan should maybe hold a hearing.

No hard and fast rule governs whether an evidentiary hearing is required before a court can properly adjudicate ineffective assistance of counsel claims, including those undergirding a motion to withdraw a guilty plea. Much depends on exactly what is being contested and what materials the court will have to consider in deciding the merits. In Taylor, 139 F.3d at 932-33, this Circuit wrote:

Ordinarily, when a defendant seeks to withdraw a guilty plea on the basis of ineffective assistance of trial counsel the district court should hold an evidentiary hearing to determine the merits of the defendant’s claims. . . . On the other hand, some claims of ineffective assistance of counsel can be resolved on the basis of the trial transcripts and pleadings alone.3

But she doesn’t commit to putting her client (and his former attorney) under oath, which is where this is heading.

And her briefing on Cray is cursory. She deals with the standard under which that defendant tried to withdraw his plea.

United States v. Cray, 47 F.3d 1203 (D.C. Cir. 1995), which this Court requested counsel address, denied withdrawal of a guilty plea because there was no violation of Rule 11. As more recent circuit decisions hold, Rule 11 violation is only one of the reasons that warrants granting a motion to withdraw a plea. Here, Sixth Amendment violations taint Mr. Flynn’s plea, and it cannot stand.38 United States v. McCoy, 215 F.3d 102, 107 (D.C. Cir. 2000) (“A plea based upon advice of counsel that ‘falls below the level of reasonable competence such that the defendant does not receive effective assistance’ is neither voluntary nor intelligent.”) (internal citation omitted).

Moreover, she claims there was a Rule 11 violation in the reallocution before Judge Sullivan, because he didn’t ask Flynn whether there were other promises to induce him to plead.

That plea colloquy did not, however, inquire into whether any undisclosed promises or threats induced the plea agreement. Moreover, the Court specifically expressed its dissatisfaction with the underlying facts supposedly supporting the factual basis for the plea. United States v. Cray, 47 F.3d 1203, 1207 (D.C. Cir. 1995) (“Where the defendant has shown his plea was taken in violation of Rule 11, we have never hesitated to correct the error.)”

But Judge Contreras did allocute to that (in addition to making Flynn attest that he was happy with the advice Rob Kelner gave him).

THE COURT: Have any threats or promises other than the promises made in the plea agreement been made to you to induce you to give up your right to the indictment?

THE DEFENDANT: No.

Flynn now claims that he pled to ensure Mueller would not prosecute his failson, but he didn’t raise it on December 1, 2017 when asked if there any more promises made to him.

Moreover, Powell does not address another part of Cray: that when the judge put him under oath, he revealed that his claims of innocence related to other charges, something Flynn is doing here.

Powell claims Covington did not give Flynn notice of their conflict but provides evidence they did

Rather than making a robust case that Flynn did not commit the crime that he pled guilty to, lying about Russia, she instead argues that Covington was fatally conflicted when they advised Flynn to plead guilty. She argues that Flynn told the entire truth to his Covington attorneys while they were preparing his FARA filing, they didn’t include the information he had provided them, and so they made him plead guilty to get out of trouble they had created themselves.

Before I explain the problems with this, recall that I raised questions about a conflict immediately after the December 2018 sentencing hearing. So I’m actually sympathetic to the argument.

But there are two problems with her argument.

First, she’s obscuring the nature of the lies in Flynn’s FARA filing in an effort to pretend that Flynn did not lie to Covington when preparing the filing. I debunked some of her claims here, but one bears repeating. Flynn’s statement of offense described one of the false statements on the filing as “an op-ed by FLYNN published in The Hill on November 8, 2016 was  written at his own initiative.” Powell pretends this is a dispute over whether Flynn actually wrote the op-ed himself. Flynn did tell Covington, truthfully, that Kian had drafted the op-ed, which Powell notes repeatedly.

But Covington’s notes also show that Flynn told Covington the op-ed had nothing to do with the Turkish contract, and that he did it solely to prove that the Trump campaign was serious about fighting Islamic terrorism.

That is, he not only lied about whether it was his idea to write it, but lied about it being the deliverable for the Turkish contact altogether. As noted above, Flynn testified under oath he didn’t even know this op-ed was coming until Kian delivered it in full draft form to him. And, as DOJ has already made clear, Covington’s lawyers will testify that Flynn didn’t tell them the truth about the op-ed, as this interview report from Rob Kelner makes clear.

(U//FOUO) KELNER was informed by FLYNN the published 11/8/2016 Op-Ed article in The Hill was something he, FLYNN, had wanted to do out of his own interest. FLYNN wanted to show how Russia was attempting to create a wedge between Turkey and the United States. FLYNN informed KELNER the Op-Ed was not on behalf of FIG’s project with INOVO.

So the public record — including notes released by Powell — shows that Flynn (and Kian) were responsible for the false statements in the FARA filing, not Covington.

Moreover, documents submitted by Powell on Wednesday make it clear Covington informed Flynn of the conflict. Flynn (and his wife, who submitted a declaration that now makes it possible for prosecutors to breach spousal privilege) suggests he was only informed of the conflict twice — once in August and once in November after his first proffers. He describes the August advice as a 15-minute conversation he had after pulling over on the side of a road.

The call then occurred while we were driving to have dinner with some friends. It was an approximately 15-minute phone call, where we had pulled off to the side of a highway. They informed us that there was a development regarding a conflict of interest. They also mentioned the possibility of Bijan being indicted. Speaking to the conflict of interest, they stated that they were prepared to defend as vigorously, if the conflict became an issue. We told them we trusted them.

The government has, in the past, noted they raised a potential conflict with Covington twice, on November 1 and November 16, before they ever spoke with Flynn. An exhibit Powell included Wednesday shows that on November 20, 2017, Flynn responded to a Covington email stating the description of the conflict “is very clearly stated” but that “we’re good going forward with you all and very much trust that you will continue to guide us through this difficult time.” The email reflected at least three warnings from Covington:

  • August 30, where they informed him of the conflict and suggested he “obtain advice from a lawyer independent of Covington”
  • A later conversation where they suggested the name of another lawyer with expertise in legal ethics who had already determined he had no conflict who was “willing to be engaged by you for a reduced, fixed fee”
  • The warning on November 19, which for the third time advised him to “seek advice from an independent lawyer about this”

Flynn did not contest their representation of those (at least) three warnings. Powell now claims they cited the wrong rule of professional conduct — about the only claim in the filing that might have merit. And — in a passage denying their (at least) third warning to Flynn — she also suggests that the Covington lawyers faced criminal liability themselves for repeating what their client told them.

What had begun as a simple mistake in doing the FARA filing suddenly had the potential of exposing the Covington lawyers to civil or criminal liability, significant headlines, and reputational risk. That the Covington lawyers thought that a “drive-by” cell-phone chat, while their client was on his way to dinner with his wife, was sufficient disclosure in these dire circumstances revealed their cavalier attitude and presaged far worse. [emphasis original]

She doesn’t note, of course, that Covington’s possible exposure on FARA, and the ability of the government to get them to testify, remained the same whether or not they remained Flynn’s lawyer.

And all that’s before Covington starts producing other records that are less complimentary to Flynn.

Remember: A key part of Sidney Powell’s argument here is that Covington — the lawyers who advised Flynn that if he withdrew his plea in December 2018 he’d only be giving Judge Sullivan more rope to hang himself with — provided obviously incompetent legal advice.

Be careful what you wish for

Way back when Flynn first got cute in advance of his December 2018 sentencing, I warned him, be careful what you wish for. Raising the circumstances of his FBI interview was likely, I predicted, to get Sullivan to ask for those details.

Which he subsequently did, resulting in damning new information about Flynn’s lies to be released.

I feel like that’s bound to happen here. For example, Powell keeps complaining that DOJ won’t provide her Flynn’s DIA briefings regarding his trips to Russia. She has raised what happened in Flynn’s proffers, but not provided the 302s which even Flynn’s declaration suggests was a disaster. The government has already telegraphed they may release this stuff.

There’s even the possibility that if Judge Sullivan asks to have witnesses, DOJ will ask that Don McGahn, John Eisenberg, or Reince Priebus testify. According to the Mueller Report, they all believed he was lying to them about what he remembered he had said to Kislyak.

So in addition to not heeding the advice about giving a judge more rope to hang you with, I feel like someone should have warned Flynn to be careful of what he wishes for. Again.

A number of people have pointed to Bill Barr’s sudden installation of a loyal aide at DC US Attorney and assumed it means the fix is in for the Flynn sentencing.

Attorney General William P. Barr on Thursday named former federal prosecutor Timothy Shea as the District’s interim U.S. attorney.

Shea, 59, currently serves as a counselor to Barr at the Justice Department. He will oversee the nation’s largest U.S. attorney’s office with 300 prosecutors.

The announcement comes just a day before Jessie K. Liu, the city’s current U.S. attorney, leaves office on Friday.

Liu, 47, has served in the post for a little over two years. President Trump on Jan. 6 nominated her to become the Treasury Department’s undersecretary for terrorism and financial crimes, and her nomination is pending before the Senate Banking Committee.

I absolutely don’t discount the possibility that Barr did this to better retaliate against Andrew McCabe and shut down the remaining investigations of Trump’s aides being conducted by the DC US Attorney’s office. As I may get around to showing, I think the risk is particularly acute for Roger Stone’s sentencing, where Trump has far more untapped exposure than Flynn. And it may well be the case that Barr and Shea force prosecutors to submit a half-hearted response to this motion to withdraw (though some of them are actually NSD attorneys who report up through other channels).

But at this point, the damage has already been done. There is no way to change the fact that Flynn has sworn to statements, under oath, before Judge Sullivan that materially conflict.

SDNY Prosecutors Protect Trump’s Privacy to Enter into a Joint Defense Agreement with the Russian Mob

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Whooboy is there an interesting flurry of motions over in the Ukrainian grifter prosecution. Effectively, SDNY prosecutors and (two of) Lev Parnas’ co-defendants want to slow him from sharing information with HPSCI. The letters include:

  • January 17: Parnas asks to modify the protective order a third time
  • January 22: Igor Fruman lawyer Todd Blanche says he has an attorney-client interest in some of what Parnas wants to and has already shared
  • January 22: Andrey Kukushkin lawyer Gerald Lefcourt says he just wants a privilege review
  • January 23: SDNY says Parnas should not be able to share iCloud information he obtained via discovery without review
  • January 24: Parnas lawyer Joseph Bondy makes a quick argument asserting they should be able to share the information
  • January 24: Bondy responds to Fruman letter at more length
  • January 27: Blanche responds again, invoking Dmitry Firtash to speak on behalf of unnamed others

The dispute started when Parnas asked to share content that the FBI seized from Parnas’ iCloud account and then provided to him in discovery. He listed just 11 Bates stamp numbers in the initial request, but it’s unclear what kind of files these are. In response, the lawyer that Fruman shares with Paul Manafort, Todd Blanche, objected to that request, and also asked to “claw back” any privileged materials that Parnas already produced to HPSCI (remember that Victoria Toensing has already complained that Parnas has violated privilege). Blanche makes a dig at Parnas’ media tour:

My obvious concern is that Mr. Bondy’s hasty efforts to find a forum (beyond MSNBC and CNN) for someone —  anyone — to listen to his client’s version of events caused him to irresponsibly produce privileged materials to the HPSCI.

One of the two other co-defendants, Andrey Kukushkin, weighed in — having been alerted by SDNY that, “its filter team identified materials in Mr. Parnas’ iCloud account that may fall within a common-interest attorney-client privilege held jointly by Mssrs. Kukushkin, Parnas, and aothers” — and stated that he did not object to Parnas sharing information “if all privileged materials can be removed from Mr. Parnas’ iCloud account prior to production to HPSCI.”

Having thus cued Parnas’ co-defendants to submit complaints, SDNY then weighed in, objecting to Parnas’ request. They invoke two reasons for their objection. The first poses interesting Fourth Amendment considerations; effectively SDNY argues that Parnas’ warrant return from Apple includes material that Parnas never possessed (and some material he deleted that only still exists because prosecutors obtained a preservation request).

The materials at issue include records that, as far as the Government knows, were never in Parnas’s possession. For instance, the data produced by Apple includes deleted records (which may only exist because of the Government’s preservation requests), account usage records, and other information to which a subscriber would not necessarily have access. The form of the report, which was created by the FBI, was also never in Parnas’s possession.

[snip]

Additionally, to the extent Parnas seeks to produce his own texts, emails, photographs or other materials, he should have access to the content stored on his iCloud account through other means: he can simply download his own iCloud account and produce it to HPSCI (and in fact, it appears he has already done so).

[snip]

To the extent that Parnas has deleted materials from his iCloud account, the Government is willing to work with counsel to ensure that Parnas can produce his own materials that are responsive to the Congressional request to HPSCI. To that end, the Government respectfully submits that Parnas’s counsel should identify for the Government any specific chats, emails, photographs, or other content Parnas is unable to access from his iCloud currently, but whic exist within the discovery that has been produced to him and in his view are responsive to the Congressional subpoena.

I find that stance interesting enough — basically a reverse Third Party doctrine, saying that subscribers aren’t the owners of the information Apple has collected on them, at least not in the former that FBI reports it out.

It’s the other objection I find most interesting. SDNY prosecutors — including one of the ones who argued against broad claims of privilege in the Michael Cohen — objects because the data from Parnas’ iCloud,

[I]t public disclosure still has the potential to implicate the privacy and privilege interests of third parties and co-defendants.

It then argues that requiring Parnas to specifically request content that he already deleted,

would also permit his co-defendants to raise any concerns with respect to their privilege or privacy interest prior to the materials’ release.

SDNY’s prosecutors are arguing that Parnas can’t release his own iCloud material because of other people’s privacy interests!! As if it is the place for SDNY’s prosecutors to decide what HPSCI considers proper levels of disclosure!!

I’ve been giving SDNY the benefit of the doubt on this prosecution, assuming that as prosecutors they would push back against any Bill Barr attempt to protect Rudy (though not the President). But this alarms me. It seems like SDNY is using Fruman — who is in a Joint Defense Agreement with Rudy — to speak for Rudy’s interests.

After making a cursory response to SDNY, Bondy responded in more detail to Fruman. In it, Bondy makes the kind of argument about the limits of privilege you’ll almost never see a lawyer make.

[T]he burden is on the party asserting the attorney-client privilege to first establish that there was: 1) a communication; 2) made in confidence; 3) to an attorney; 4) by a client; 5) for the purpose of seeking or obtaining legal advice. The part asserting attorney-client privilege has the burden of conclusively proving each element, and courts strongly disfavor blanket assertions of the privilege as “unacceptable.” In addition, the merre fact that an individual communicates with an attorney does not make the communication privileged.

There are also instances in which the attorney-client privilege is waived, including when the substance of otherwise privileged communications are shared with third parties, when the communications reflect a criminal or fraudulent intent between the parties, when the communications are part of a joint–yet conflicted–representation, and in cases where the parties to a joint defense have become adverse in their interests. 

Bondy then goes on to add that HPSCI “does not recognize attorney-client privilege,” which may be why, at about the time these letters were breaking, Jay Sekulow was on the floor of the Senate haranguing Democrats for not respecting that privilege (which Sekulow suggested was in the Bill of Rights). He uses that stance to suggest SDNY is making a claim that violates separation of powers.

From there, Parnas goes on to disavow any privilege shared in his brief Joint Defense Agreement with the Russian mob, in part based on discussions about his initial response to the HPSCI subpoena having been shared more widely.

Mr. Parnas waives all privilege with respect to the communications he had with Mssrs. Dowd and Downing. Furthermore, the substance of his and Mr. Fruman’s legal representation appears to have been shared with third parties, including Jay Sekulow, Rudolf Giuliani, John Sale, Jane Raskin, and others. … As the Court may know, Mssrs. Sekulow, Raskin, and Giuliani are also attorney for President Trump. Mr. Giuliani and the President have interests divergent from Mr. Parnas’s wish to cooperate with Congress and the Government. Mr. Parnas believes that his and Mr. Fruman’s ostensibly joint representation by Attorneys Dowd and Downing was conflicted and intended from its inception to obstruct the production of documents and testimony responsive to lawful congressional subpoena.

[snip]

Here, Attorney Dowd undertaking a joint representation of Mr. Parnas and Mr. Fruman — with the President’s explicit permission — constituted an actual conflict of interest at the time and appears designed to have obstructed Mr. Parnas’s compliance with HPSCI’s subpoenas and any ensuring efforts to cooperate with congressional investigators or federal prosecutors.

Bondy ends by saying it’s up to those claiming a conflict to invoke it.

Bondy makes it fairly clear: he believes the privilege SDNY has set Fruman up to object to involves Rudy and Trump, neither of whom are in a position to object, particularly given that if they do, Bondy will argue that Parnas believes their grift might be criminal and therefore the privilege doesn’t apply.

So instead of the President and his lawyer claiming that Parnas’ release of this material will violate privilege, Fruman does.

Mr. Fruman has reason to believe that the Production Material contains privileged information belonging to Mr. Fruman and others.

He invokes only the consultation of their shell company, Global Energy Producers, with [Rudy’s former firm] Greenberg Traurig in conjunction to substantiate a common attorney-client interest, then nods to more:

This is but one example, and there are many more, but certainly the privilege issues implicated by the repeated amendments to the Protective Order are far more expansive than the attorney-client relationships identified in Mr. Bondy’s letter.

Fruman then complains that he cannot — as Parnas has said he must do — invoke privilege because he’s not in possession of the materials (just the taint team and Parnas have them).

The best part is where, still faced with the problem that the people whose privilege is at issue (Rudy and Trump) cannot politically invoke it, Fruman finds someone else whose privilege, he says, has been violated: Dmitry Firtash.

Mr. Fruman is not the only person whose privilege information is at risk. For example, Mr. Parnas has represented that he was employed as a translator for Victoria Toensing and Joseph DiGenova in connection with their representation of Dymitry Firtash. Clearly, any materials Mr. Parnas received as a translator assisting attorneys in the representation of Mr. Firtash would be protected by attorney-client privilege. And that privilege would be held by Mr. Firtash, the client, not Mr. Parnas.

It’s increasingly clear what Parnas and Bondy are up to: They’re trying to make it politically (and given the OLC memo prohibiting the indictment of the President) bureaucratically impossible to pursue further charges. If everything recent Parnas did was done for the President, he shouldn’t be the only one facing prosecution for it.

Fruman, meanwhile, seems to be the sole member of the Joint Defense Agreement with the Russian Mob who is a party here, trying to prevent his position from deteriorating by speaking for all the affected parties, only without naming Rudy or Trump (presumably backed by the same old pardon promises Trump always uses to get witnesses against him to take the fall).

What’s not clear is what SDNY is up to. Because it sure seems like they’ve used Fruman to protect Trump’s and even Rudy’s interests.

Judge Oetken scheduled a hearing for Thursday to resolve all this. Which may be too late for Parnas’ play.

Charles Cooper’s Letter about Pre-Publication Review Discounts Any Executive Privilege Claims

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In the wake of yesterday’s NYT story revealing damning details about John Bolton’s book manuscript, his lawyer, Charles Cooper, released the letter sent on December 30 laying out what they expected from the pre-publication review.

In it, Cooper (who while he was at the Office of Legal Counsel wrote at least one opinion laying the foundation for the unitary executive, one that helped cover up Iran-Contra) suggests there is only one basis on which the White House can object to the content of his client’s manuscript: classification.

I appreciate your assurance that the sole purpose of prepublication security review is to ensure that SCI or other classified information is not publicly disclosed. In keeping with that purpose, it is our understanding that the process of reviewing submitted materials is restricted to those career government officials and employees regularly charged with responsibility for such reviews.

Cooper leaves unstated his assertion that the White House cannot object to material in the book on Executive Privilege grounds, or any Absolute Immunity grounds that Pat Cipollone might dream up.

Such an assertion is wholly inconsistent with Cooper’s previous assertion (made for his other client, Charles Kupperman but which Bolton adopted by association) that the White House has any say over whether Bolton must respond to a dually authorized Congressional subpoena. Normally, a subpoena can overcome Executive Branch demands that the subpoenaed person not testify, if they want to testify. Here, Cooper is suggesting that the only restriction that the White House can impose on Bolton’s non-subpoenaed speech is classification review.

I get why he said it. He was trying to lay the groundwork for the statement he released last night, in which he suggested the White House had circulated Bolton’s manuscript outside those career civil servants who are entitled to review it.

But it will make it far harder to ignore future subpoenas, whether from the Senate, the House, or SDNY (in a Rudy Giuliani investigation).

Mueller’s 302s: The Apparent Referral of Rick Gerson’s 302s May Be as Interesting as Kushner’s

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Last week, CNN explained why, even though DOJ had promised to release a certain set of FBI interview reports (302s) in the CNN/BuzzFeed FOIA for the underlying materials from the Mueller Report, Jared Kushner’s April 2018 interview report has not yet been released: An intelligence agency is reviewing the memo.

The Justice Department did not hand over the FBI’s summary of Jared Kushner’s interviews with special counsel Robert Mueller last week — despite a judge’s order to do so — because “a member of the intelligence community” needs to ensure the material has been properly redacted, a department attorney said Wednesday.

DOJ lawyer Courtney Enlow informed CNN as part of an ongoing lawsuit that Kushner’s memo, also known as a “302, will be released with the appropriate redactions” after the intelligence agency has finished its review.

Earlier this month, DOJ gave the plaintiffs in this FOIA suit a table that may provide useful background to it. Vast swaths of virtually all of these 302s have been withheld under a b5 exemption, which is broadly known as the deliberative privilege exemption. This table (“b5 table”) purports to explain which 302s have been withheld under which form of b5 exemption:

  • AWP: Attorney Work Product, basically a specious claim that because attorneys were present at an interview, the report produced by non-attorney FBI agents gets covered as a result
  • DPP: Deliberative Process Privilege, which is supposed to mean that the redacted material involves government officials trying to decide what to do about a policy or, in this case, prosecutorial decisions
  • PCP: Presidential Communications Privilege, meaning the redacted material includes discussions directly involving the President

The litigation over these b5 Exemptions was always going to be heated, given that DOJ is using them to hide details of what the President and his flunkies did in 2016. All the more so now that DOJ has adopted a broader invocation of b5 exemptions than they did earlier in this lawsuit, when they were limited to just discussions of law and charging decisions.

Still, the b5 table is useful in other ways.

Mary McCord interview purportedly includes Presidential Communications

For example, it shows that the government redacted parts of Acting NSD Director Mary McCord‘s interview report, which focused closely on her interactions with the White House Counsel about Mike Flynn’s lies to the FBI, as a Presidential Communication.

This claim  is probably fairly sketchy. She is not known, herself, to have spoken directly to Trump. And while much of her interview was withheld under b1 and b3 (at least partly on classification grounds pertaining to the FISA on which Flynn was captured, but also grand jury information with respect to the investigation into Mike Flynn) and b7E (law enforcement methods), the parts that were withheld under b5 appear to be her speaking to Don McGahn, including bringing information to him, rather than the reverse.

Crazier still, we’ve all been pretending that Flynn lied about his calls with Sergey Kislyak of his own accord; the Mueller Report remained pointedly non-committal on whether Flynn undercut Obama’s sanctions on Trump’s orders or not. Protecting these conversations as a Presidential Communication seems tacit admission that Don McGahn’s interactions with McCord were significantly about Trump, not Flynn.

Chris Ruddy’s interview unsurprisingly includes Presidential Communications

It is thoroughly unsurprising that DOJ is withholding parts of Chris Ruddy’s interview as Presidential Communications. After all, during the period about which the unredacted parts of the interview show he was interviewed (summer 2017), Ruddy served as Trump’s rational brain, so it would be unsurprising if Ruddy told Mueller’s team certain things he said to Trump.

Though even there, there are passages that seem like may be an improper assertion of Presidential Communications, such as what appears to be a meeting at the White House with Reince Priebus and Steve Bannon — neither of whom is the President — asking for his help to go make a public statement mind-melding him into not firing Mueller.

As the Mueller Report passages sourced to this interview make clear, this is a PR request, not a presidential communication.

On Monday, June 12, 2017, Christopher Ruddy, the chief executive of Newsmax Media and a longtime friend of the President’s, met at the White House with Priebus and Bannon.547 Ruddy recalled that they told him the President was strongly considering firing the Special Counsel and that he would do so precipitously, without vetting the decision through Administration officials.548 Ruddy asked Priebus if Ruddy could talk publicly about the discussion they had about the Special Counsel, and Priebus said he could.549 Priebus told Ruddy he hoped another blow up like the one that followed the termination of Comey did not happen.550 Later that day, Ruddy stated in a televised interview that the President was “considering perhaps terminating the Special Counsel” based on purported conflicts of interest.551 Ruddy later told another news outlet that “Trump is definitely considering” terminating the Special Counsel and “it’s not something that’s being dismissed.”552 Ruddy’s comments led to extensive coverage in the media that the President was considering firing the Special Counsel.553

White House officials were unhappy with that press coverage and Ruddy heard from friends that the President was upset with him.554

Still, the fact that DOJ maintains that some of this interview involves Presidential Communications is interesting because of the point I made in this post: Passages currently redacted for an ongoing criminal proceeding suggest Ruddy’s other communications, possibly with Manafort or his lawyer, are part of an ongoing criminal proceeding.

I’m interested in Ruddys’ 302 because four paragraphs that show a b7ABC redaction, which mostly has been used to hide stuff pertaining to Roger Stone.

I doubt this redaction pertains to Stone, though, at least not exclusively.

As I noted last June when Amy Berman Jackson liberated the Sean Hannity texts with Manafort, she withheld another set of communications (probably showing Kevin Downing reached out to the media, as he had done with Hannity, which is why they were submitted as part of Manafort’s sentencing). She withheld the other texts because of an ongoing proceeding.

At the time, I suggested that the other proceeding might pertain to Chris Ruddy because:

  • Ruddy was a key source for a key Howard Fineman story in the same time frame as Kevin Downing had reached out to Hannity
  • Prosecutors probably obtained all of Manafort’s WhatsApp texts after learning he had been witness tampering using that account
  • Ruddy testified to Mueller the day after they had extracted the Manafort-Hannity texts, suggesting he was a likely candidate to be the other person whose texts showed ongoing communication with the media

DOJ may be withholding discrete paragraphs in Ruddy’s interview both because they are a Presidential Communication and because they are part of an ongoing investigation. Which seems like something CNN and BuzzFeed might want to clarify.

Hiding the most damning Sater and Bannon and (possibly) KT McFarland interviews?

Then there are three interviews DOJ claims to have turned over for which the interviewee’s name has been withheld.

One of those, for an interview on August 15, 2017, happened on a day when Mueller’s team conducted five interviews (or, given the 1-page length of three of them, more likely phone calls setting up interviews). One of those is of Andrej Krickovic, a Carter Page associate who is not listed on the master list of interviews but whose name was identified in his 302. But the interview in question is being withheld under a Presidential Communications exemption, so surely is not Krickovic. There’s a 6-page interview from that date reflected in the DOJ list of all interviews (“Mueller interview list”) that is likely the one in question. And given that the earliest released interview of KT McFarland, dated September 14, 2017, describes her being “acquainted with the interviewing agents from a previous interview,” given reports that her first most egregious lies about Flynn’s calls to Kislyak came during the summer (before it was clear that Mueller’s team was going to obtain a warrant to get Transition emails from GSA), and given the September 302 reflects her attempt to clear up several existing untruths, I’m guessing that’s hers.

There’s more evidence regarding the subjects of two other 302s from which the names have purportedly been withheld. The b5 table includes a December 15, 2017 interview being withheld exclusively as Attorney Work Product. It seems likely that this is the December 15, 2017 Felix Sater interview reflected in the Mueller interview list. Immediately before the September 19, 2017 Sater interview are 7 pages that were entirely withheld (1394 through 1400) under b3 (grand jury or classification), b6 and b7C (collectively, privacy), b7E (law enforcement sources and methods), b7F (likely risk of death), and b5. Sater is one of — if not the only — person whose interviews have been protected under b7F (which makes sense, given that he was a high level informant for years).  Plus, there’s reason to believe that Sater’s story evolved after he was interviewed by HPSCI on December 14, 2017, and DOJ seems especially interested in hiding how some of these stories changed over time. In other words, DOJ seems to be hiding the entirety of a Sater interview the existence of which they already acknowledged under a whole slew of exemptions, including Attorney Work Privilege. That would be particularly egregious, given that Mueller relied on that interview to support the following details about Trump Tower:

Given the size of the Trump Moscow project, Sater and Cohen believed the project required approval (whether express or implicit) from the Russian national government, including from the Presidential Administration of Russia.330 Sater stated that he therefore began to contact the Presidential Administration through another Russian business contact.331

[snip]

The day after this exchange, Sater tied Cohen’s travel to Russia to the St. Petersburg International Economic Forum (“Forum”), an annual event attended by prominent Russian politicians and businessmen. Sater told the Office that he was informed by a business associate that Peskov wanted to invite Cohen to the Forum.367

In a follow-up, I’ll explain why DOJ’s attempt to withhold this interview by hiding the existence of it even though they’ve already acknowledged it is fairly damning.

In addition, the b5 table lists a January 18, 2019 interview withheld under Presidential Communication and Deliberative Process Privilege, but not Attorney Work Product (which might suggest it was an interview FBI agents conducted with no prosecutor present). While there was stuff pending in the Jerome Corsi investigation at the time (which might explain the lack of lawyers but probably not a Presidential Communication Privilege), the only interview on that date included in the Mueller interview list involves Steve Bannon. That’s interesting because while his proffer agreement (signed by Andrew Goldstein, so seemingly reflecting Goldstein’s presence at the interview of that date) shows in the batch of 302s in which this withheld one is supposed to have appeared, his interview of that date (which is 4 pages long) does not appear. There’s not an obvious set of withheld pages that might be that interview (there are 6-page withholdings that might include it). But Bannon’s January 18, 2019 was, given some comments at the Stone trial, particularly damning and conflicts with the one (of three) Bannon 302 that has been made public. Just one sentence of the Mueller Report — pertaining to the campaign’s discussions about upcoming WikiLeaks releases but still redacted for Stone’s trial — relies on this Bannon interview, but since it does, the interview itself should not be entirely redacted. (That said, the entirety of Bannon’s 16-page October 26, 2018 302 has also been hidden in plain sight in these releases.)

There is, admittedly, varying degrees of certainty about these hypotheses. But if they are correct, it would suggest that DOJ is systematically withholding 302s that would show significant changes in testimony among people who were not charged for lying in the earlier ones. Of particularly note, they may be hiding one each that BuzzFeed (which had the lead in reporting the Felix Sater story) and CNN (which was one of the few outlets that reported how KT McFarland had to clean up her testimony) have an institutional stake in.

Rick Gerson disappeared into the same Agency review as Jared Kushner?

Finally, the b5 table reveals DOJ has “released” the two interviews from Rick Gerson, even though we’ve seen no hint of them.

You might be forgiven for forgetting who Rick Gerson is — Steven Bannon even claimed to have in his first, least forthcoming interview. He’s a hedgie who is close to Jared Kushner who actually had a key role in setting US-Russian policy from the start of the Trump Administration. George Nader introduced him to the CEO of the Russian Direct Investment Fund, Kirill Dmitriev, after which Gerson (who had no official role in the Transition or Administration so presumably had no security clearance) and Dmitriev put together a reconciliation plan between Russian and the US.

In addition, the UAE national security advisor introduced Dmitriev to a hedge fund manager and friend of Jared Kushner, Rick Gerson, in late November 2016. In December 2016 and January 2017, Dmitriev and Gerson worked on a proposal for reconciliation between the United States and Russia, which Dmitriev implied he cleared through Putin. Gerson provided that proposal to Kushner before the inauguration, and Kushner later gave copies to Bannon and Secretary of State Rex Tillerson.

Gerson’s two interviews are cited 17 times in the Mueller Report and cover topics including:

  • Gerson’s ties to Jared and non-existent role on the campaign
  • Gerson’s role setting up meetings with Tony Blair and Mohammed bin Zayed
  • How Nader introduced him to Dmitriev
  • How Dmitriev pitched Gerson on a potential joint venture
  • How Gerson, having been promised a business deal, then worked to figure out from Jared and Mike Flynn who was running “reconciliation” on the Transition
  • What Dmitriev claimed his relationship to Putin was
  • How Gerson, “on his own initiative and as a private citizen,” worked with Dmitriev during December 2016 to craft this “reconciliation” plan
  • How Gerson got that plan into Kushner’s hands and it formed a key part of the discussion between Trump and Putin on their January 28, 2017 call
  • How Dmitriev seemed to lose interest in doing business with Gerson once he had finished using him

A key part of this discussion relies on both Gerson’s interviews and the Kushner one that is being reviewed by an Agency.

On January 16, 2017, Dmitriev consolidated the ideas for U.S.-Russia reconciliation that he and Gerson had been discussing into a two-page document that listed five main points: (1) jointly fighting terrorism; (2) jointly engaging in anti-weapons of mass destruction efforts; (3) developing “win-win” economic and investment initiatives; (4) maintaining an honest, open, and continual dialogue regarding issues of disagreement; and (5) ensuring proper communication and trust by “key people” from each country. 1111 On January 18, 2017, Gerson gave a copy of the document to Kushner. 1112 Kushner had not heard of Dmitriev at that time. 1113 Gerson explained that Dmitriev was the head of RDIF, and Gerson may have alluded to Dmitriev’s being well connected. 1114 Kushner placed the document in a file and said he would get it to the right people. 1115 Kushner ultimately gave one copy of the document to Bannon and another to Rex Tillerson; according to Kushner, neither of them followed up with Kushner about it. 1116 On January 19, 2017, Dmitriev sent Nader a copy of the two-page document, telling him that this was “a view from our side that I discussed in my meeting on the islands and with you and with our friends. Please share with them – we believe this is a good foundation to start from.” 1117

1111 1/16/17 Text Messages; Dmitriev & Gerson.

1112 Gerson 6/5/18 302, at 3; Gerson 6/15/18 302, at 2.

1113 Gerson 6/5/18 302, at 3.

1114 Gerson 6/5/18 302, at 3; Gerson 6/15/18.302, at 1-2; Kushner 4/11/ 18 302, at 22.

1115 Gerson 6/5/18 302, at 3.

1116 Kushner 4/11/18 302, at 32.

1117 1/19/17 Text Message, Dmitriev to Nader (11: 11 :56 a.m.).

There are roughly 62 pages referred to another agency in the January 2 release (which is understood to include Kushner’s April 11, 2018 interview) is an 11-page series (1216-1226), which might be Gerson’s two interviews. That suggests we can’t even get the 302s that show how Putin’s selected envoy to the US managed to plan out the first phone call between Putin and Trump with a hedgie who went to college with Kushner with not formal ties to the Transition or Administration and no security clearance because they’re so sensitive — more sensitive than KT McFarland’s discussion of Transition national security discussions, for example — that some Agency like the CIA has to give us permission first.

NSA Is Probably Withholding Details of the Alleged Burisma Hack from Congress

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Over the weekend, Adam Schiff and other impeachment managers started alleging that the NSA is withholding information about Ukraine from the Intelligence Committees and impeachment team.

“And I’ll say something even more concerning to me, and that is the intelligence community is beginning to withhold documents from Congress on the issue of Ukraine,” Schiff said. “The NSA, in particular, is withholding what are potentially relevant documents to our oversight responsibilities on Ukraine, but also withholding documents potentially relevant that the senators might want to see during the trial.”

Schiff added: “There are signs that the CIA may be on the same tragic course. We are counting on the intelligence community not only to speak truth to power, but to resist pressure from the administration to withhold information from Congress because the administration fears that they incriminate them.”

An Intelligence Committee official later said, “Both the NSA and CIA initially pledged cooperation, and it appears now that the White House has interceded before production of documents could begin.”

Schiff had dropped the claim, at times, in his presentation to the Senate and to the press.

But in his stem-winding close last night, he mentioned the alleged Burisma hack in a way that strongly suggests that’s what NSA is withholding.

Now we just saw last week a report that Russia tried to hack, or maybe did hack, Burisma. Okay. I don’t know if they got in. I’m trying to find out. My colleagues on the Intel Committee, House and Senate, we’re trying to find out, did the Russians get in? What are the Russian plans and intentions? Well, let’s say they got in. And let’s say they start dumping documents to interfere in the next election. Let’s say they start dumping some real things they hacked from Burisma, let’s say they start dumping some fake things they didn’t hack from Burisma, but they want you to believe they did. Let’s say they start blatantly interfering in our election again, to help Donald Trump. Can you have the least bit of confidence that Donald Trump will stand up to them and protect the national interest over his own personal interest? You know you can’t.

Schiff’s speech was a planned show-stopper, climax, thus far, of the impeachment trial. It is highly unlikely Schiff included this mention, with the detail that he and both the Intelligence Committees are trying to figure out whether Burisma really got hacked, without very good reason.

But it also goes to the power of information war.

When NYT first reported that GRU had hacked Burisma, I had two thoughts.

The hackers fooled some of them into handing over their login credentials, and managed to get inside one of Burisma’s servers, Area 1 said.

“The attacks were successful,” said Oren Falkowitz, a co-founder of Area 1, who previously served at the National Security Agency. Mr. Falkowitz’s firm maintains a network of sensors on web servers around the globe — many known to be used by state-sponsored hackers — which gives the firm a front-row seat to phishing attacks, and allows them to block attacks on their customers.

“The timing of the Russian campaign mirrors the G.R.U. hacks we saw in 2016 against the D.N.C. and John Podesta,” the Clinton campaign chairman, Mr. Falkowitz said. “Once again, they are stealing email credentials, in what we can only assume is a repeat of Russian interference in the last election.”

[snip]

To steal employees’ credentials, the G.R.U. hackers directed Burisma to their fake login pages. Area 1 was able to trace the look-alike sites through a combination of internet service providers frequently used by G.R.U.’s hackers, rare web traffic patterns, and techniques that have been used in previous attacks against a slew of other victims, including the 2016 hack of the D.N.C. and a more recent Russian hack of the World Anti-Doping Agency.

“The Burisma hack is a cookie-cutter G.R.U. campaign,” Mr. Falkowitz said. “Russian hackers, as sophisticated as they are, also tend to be lazy. They use what works. And in this, they were successful.”

First, this attribution is not (yet) as strong as even the first attribution that GRU had hacked the DNC, to say nothing of the 30 non-government sources for that attribution since laid out in the GRU indictment and the Mueller Report. There’s good reason to remain cautious about this attribution until we get more than one not very well established contractor attributing the hack.

But to some degree, it doesn’t matter whether GRU hacked Burisma and whether they took documents with plans to leak them during the election. Indeed, disinformation may explain why this was an easily identifiable hack, whether done by GRU or someone else. Because the news that someone appearing to be GRU targeted Burisma in early November — when it was clear Trump would be impeached for extorting Volodymyr Zelensky to get dirt on Burisma — serves a clear purpose. It adds evidence that Trump is owned by Russia and, after the Senate doesn’t vote to remove him, will demonstration that Republicans don’t much give a damn that he is owned by Russia.

To be clear: There’s abundant evidence that Russia does have leverage over Trump, and more is likely to be forthcoming.

But that’s far more valuable, for Russia, if that’s public and if the Republicans in the Senate sanction it.

And that may explain why NSA is withholding the information, if indeed that’s what they’re withholding. In the same way that the FBI went to great lengths to withhold a letter they believed to be disinformation suggesting that Loretta Lynch would fix the Hillary investigation, information that appears to add to the already abundant case that Russia is in the tank for Trump. Given the stakes, that doesn’t justify it. But at this point, GRU wouldn’t need to hack Burisma for any point — the hack itself, in the middle of the impeachment investigation, is enough to lay a marker on Donald J. Trump.

He belongs to the GRU, the hack says, whether or not he does anything affirmatively to confirm that claim. But if the NSA is withholding that detail, it would seem to confirm the point.

Joshua Schulte Spoke Positively of Edward Snowden the Day Snowden Came Forward

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Here I thought that Joshua Schulte’s lawyers had finally come up with a decent argument, that Paul Rosenzweig’s testimony would be pointless to prove that Schulte, in choosing to leak to WikiLeaks, intended to damage the US because the government would have to prove Schulte knew of WikiLeaks when he allegedly first stole the CIA documents in May 2016.

But after pointing out that Schulte’s lawyers already blew their chance to make that argument, in a response the government  then pointed out how bad this argument is: because Schulte’s lawyers have already admitted that, “of course, Mr. Schulte knew” about Chelsea Manning’s leaks.

As an initial matter, the defendant’s Reconsideration Motion directly contradicts the argument he made in his original motions in limine concerning Mr. Rosenzweig’s testimony. The defendant argues in the instant motion that Mr. Rosenzweig’s testimony should not be admitted because there is no evidence that the defendant knew of, for example, Chelsea Manning’s disclosures to WikiLeaks. In his original opposition to the Government’s motions in limine, however, the defendant argued the exact opposite:

Next, the government says that it intends to introduce evidence of Mr. Schulte’s “knowledge of [Ms.] Manning’s leak.” Gov. Res. 11. The release of documents by Ms. Manning was front page news in every major news publication for numerous days. Of course, Mr. Schulte knew about it; so did everyone else who picked up a newspaper. It is not clear what the expert would have to add to this information. (Dkt. 242 at 44).

Worse, the government lays out not just that Schulte wrote about both Manning’s leaks to WikiLeak and Edward Snowden’s leaks, but discloses that they intend to introduce those chats at trial.

Moreover, even setting aside the dubious assertion that a member of the U.S. intelligence community could have been completely unaware of WikiLeaks’ serial disclosures of classified and sensitive information and the resulting harm, the Government’s proof at trial will include evidence that the defendant himself was well aware of WikiLeaks’ actions and the harms it caused. For example, WikiLeaks began to disclose classified information Manning provided to the organization beginning in or about April 2010, including purported information about the United States’ activities in Afghanistan. In electronic chats stored on the defendant’s server, the defendant discussed these disclosures. For example, on August 10, 2010, the defendant wrote in a chat “you didn’t read the wikileaks documents did you?” and, after that “al qaeda still has a lot of control in Afghanistan.” In addition, on October 18, 2010, the defendant had another exchange in which he discussed Manning’s disclosures, including the fact that the information provided was classified, came from U.S. military holdings, and that (according to the defendant) it was easy for Manning to steal the classified information and provide it to WikiLeaks. Similarly, in a June 9, 2013 exchange, the defendant compared Manning to Edward Snowden, the contractor who leaked classified information from the National Security Agency, and stated, in substance and in part, that Snowden, unlike Manning, “didnt endanger in [sic] people.”

Effectively, the government is going to show that Schulte — who like Snowden worked at both CIA and NSA (though in reverse order) — had decided the day that Snowden revealed himself that he hadn’t endangered someone.

I suggested in this post that the government appears to be preparing to use Schulte as an exemplar of an ongoing conspiracy, complete with their reliance on organized crime precedents.

[T]he government is preparing to argue that Schulte intended to harm the United States when he leaked these files to WikiLeaks, a stronger level of mens rea than needed to prove guilt under the Espionage Act (normally the government aims to prove someone should have known it could cause harm, relying on their Non-Disclosure Agreements to establish that), and one the government has, in other places, described as the difference between being a leaker and a spy.

To make that argument, the government is preparing to situate Schulte’s leaks in the context of prior WikiLeaks releases, in a move that looks conspicuously like the kind of ongoing conspiracy indictment one might expect to come out of the WikiLeaks grand jury, one that builds off some aspects of the existing Assange indictment.

That is, the government appears to be using Schulte to lay out their theory — rolled out in the wake of the Vault 7 leaks — that WikiLeaks is a non-state hostile intelligence service.

To be sure, there’s nothing in the least bit incriminating about talking about Snowden in real time. But it will make it a lot easier to hold Schulte accountable for leaking stuff in a far more damaging way in 2016 than Snowden did in 2013.

As I disclosed in 2018, I provided information to the FBI in 2017.

Joshua Schulte’s Plans from Jail: “#TopSecret#FuckYourTopSecret”

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In response to an order from Judge Paul Crotty, the government laid out what evidence it wants to use from prison notebooks seized from accused Vault 7 leaker Joshua Schulte’s jail cell. The whole filing is –as all descriptions of these notebooks have been — utterly damning.

For example, the filing explains a reference the government had earlier made: that Schulte had made reference to non-public information about what WikiLeaks had received in the Vault 7 leak. Schulte wrote a note sometime in July 2018 suggesting that if “you” needed help, they should ask WikiLeaks for Schulte’s “code.”

“Ask WikiLeaks” (014099) (undated): In the middle of the page, the defendant writes, “If you need help ask WikiLeaks for my code.”3 The defendant’s direction to consult WikiLeaks about his “code” is admissible as Nonpublic Information Evidence, because it is a statement that WikiLeaks is in possession of source code for tools upon which the defendant worked and that are contained in the back-up file that was stolen, even though WikiLeaks has not publicly disclosed that it possesses any source code for all of the tools. Schulte’s knowledge of non-public aspects of the information that was given to WikiLeaks helps to demonstrate that he was the one who gave that information to WikiLeaks in the first place.

Schulte wrote this in the second person, suggesting he was advising (or planning to advise) someone to use source code he wrote. He is known to have worked on obfuscation tools and a remote USB exfiltration tool. If he did intend that as instruction, he assumed the person in question would have been able to consult directly with WikiLeaks. It’s unclear to what end Schulte was imagining advising someone to use obfuscation or hacking tools written for the CIA.

In any case, the government claims that’s proof that Schulte knows exactly what was in WikiLeaks’ possession.

A later entry suggests Schulte and someone else — “we” — were trying to compromise email, possibly his own CIA email.

“What We Expect to Find in Emails” (014136) (undated): At the top of this page, the defendant writes “What we expect to find in emails.” On the remainder of the page, the defendant writes a list of items, many of which contained classified information. This portion of the Blue Notebook is admissible as Intent Evidence and MCC Classified Information Evidence, because it shows the defendant cataloguing classified information that, if publicly disclosed, would likely be harmful to the United States. Indeed, some of the categories of information identified by the defendant on this page—such as certain operations—is the same as the classified information contained in the Fake Authentication Tweet, which serves to show that the defendant’s intent was to collect these materials for dissemination, not for any legitimate purpose related to his defense.

Later, the letter describes a part of Schulte’s planned Information War on the United States, probably dating to late August or early September 2018, one he wanted to roll out in a tweet with the hash tag, “#TopSecret#FuckYourTopSecret.”

Over these three pages, Schulte wrote the following. At the top of the first page, Schulte wrote “#TopSecret#FuckYourTopSecret,” and under that draws an arrow to the phrase “or dump the secrets here:”. At the top of the page Schulte also wrote “establish credibility,” and, underneath that appears another version of the Fake Authentication Tweet. Later, the defendant recommends to U.S. intelligence agency employees to “send all your govt’s secrets here: WikiLeaks” until the U.S. government “honors” their service. As with the last entry, this is entry contains MCC Classified Information Evidence in the form of the Fake Authentication Tweet. In addition, the instruction to intelligence agency employees to give their “secrets” to WikiLeaks is Intent Evidence.

Effectively, the government seems to be arguing, Schulte planned to use a Twitter account in the name of Jason Bourne to encourage US intelligence agency employees to leak information to WikiLeaks, something Julian Assange did himself in a post-Snowden 2013 speech. Not only does this suggest Schulte was shifting into recruitment mode, but it validates the motive the government claims he himself had for leaking the CIA’s hacking tools, because the CIA didn’t “honor” his service. That’s one of the classic recruitment motives (of money, ideology, compromise, and ego, the latter).

These parts of Schulte’s prison notebooks, then, suggest he was doing more than just posting his blogposts and sharing a CIA network diagram from jail. He was at least imagining he might use tools he wrote for the CIA to steal emails full of classified secrets and also recruit others to feed WikiLeaks with more classified information over Twitter.

Schulte’s team, in one of the only filings they’ve submitted that makes a decent point in Schulte’s defense, finally offered an explanation for why this may not be as damning as it looks.

In yet another bid to get Paul Rosenzweig’s testimony showing how Schulte’s actions fit into a pattern that make look WikiLeaks look like a criminal organization, they argue that Rosenzweig’s testimony that leaking to WikiLeaks would exhibit an intent to damage the US could only work if the government first proved that Schulte knew how WikiLeaks worked.

The Court ruled, in relevant part, that “[a]n understanding of the WikiLeaks organization and how it operates is directly relevant to the allegation that, In transmitting Classified Information to WikiLeaks, Schulte intended or had reason to believe there would be injury to the United States.” Dkt. 256, at 4. This ruling makes sense only if the government first presents foundational evidence showing that Mr. Schulte knew how WikiLeaks was organized and operated. Absent such evidence showing what Mr. Schulte knew, expert testimony about these subjects would be totally disconnected from—and therefore would have no bearing on—Mr. Schulte’s state of mind.

[snip]

Here, absent proof that Mr. Schulte was aware of how WikiLeaks was organized or functioned, Mr. Rosenzweig’s testimony about those subjects, even if accurate and admissible under Fed. R. Evid. 702, would be irrelevant to what Mr. Schulte “intended or had reason to believe” when he allegedly leaked information to WikiLeaks in 2016. As in Kaplan, it would be error to admit this testimony without the required connection to what Mr. Schulte actually knew.

The same principle applies to Mr. Rosenzweig’s purported testimony about harm ostensibly caused by prior WikiLeaks revelations. If Mr. Schulte did not know in 2016 about the prior revelations or the harm they supposedly caused to the United States, any expert testimony about those revelations and resulting harm is irrelevant (and unfairly prejudicial under Rule 403).

In earlier filings, the government has made much of the fact that August 4, 2016 is the first or one of the first times Schulte ever searched Google for information on WikiLeaks. And, trust me, this guy recorded everything in his Google searches. So, the defense could argue, Schulte didn’t even begin to learn about the outlet he had leaked to until three months after he leaked the files to them (nevermind how he figured out how to get it to them).

This only works to limit the applicability of Rosenzweig’s testimony for the CIA leaks, not the leaks and attempted leaks from MCC. Plus, Schulte’s claim to have been part of Anonymous — whether or not it’s true — would amount to a claim that he operated in an environment where he would have learned of WikiLeaks in chatrooms. But it’s not clear the government could prove that.

Whether or not they can show Schulte’s actions are part of a longer campaign by WikiLeaks to encourage intelligence professionals to leak to WikiLeaks to avenge slights by the government, the notebooks are even more damning than the government has previously revealed.

As I disclosed in 2018, I provided information to the FBI on issues related to the Mueller investigation.

Lev Parnas Says Bill Barr Should Recuse … But Doesn’t Say Why

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In this post, I laid out why Lev Parnas’ current publicity tour may not be as insane, from a defense standpoint, as it seems. I laid out how Barr would have significant ability to protect potential co-conspirators of Parnas — starting with Rudy and extending to Rudy’s client. I explained how Barr’s veto authority over some of this might limit Parnas’ ability to cooperate his way out of his legal problems, and at the very least increases the chance he’s stuck holding the bag for various plots that include far more powerful people. Most interesting, however, were the ways Parnas hinted at but stopped short of implicating Barr in the plot by suggesting,

  • He had been told, by Rudy and others, they had spoken to Barr about all this
  • He had witnessed Rudy and others speaking to Barr about all this
  • He might have texts proving Barr’s involvement, but couldn’t remember whether that was the case or not

To be clear: Parnas is obscuring the degree to which he insinuated himself in Trump’s circles to make all this possible. He is pretending everything he did was ordered by powerful Americans, when the evidence suggests otherwise. So it might not serve justice for him to try to cooperate with prosecutors (because he could well be the most responsible). But I’m beginning to understand how pursuing this angle might be a reasonable defensive approach.

Today, Parnas’ lawyer Joseph Bondy just sent a request to Barr requesting his recusal, copying it to his docket.

It actually flubs the argument it tries to make about how impeachment relates to this criminal case, describing how both the July 25 Trump-Zelensky call transcript and the whistleblower complaint mention Barr over and over, without mentioning that Parnas and Igor Fruman were also incorporated in the whistleblower complaint by repeated reference to this article, which includes the influence peddling for which the grifters were already indicted. That is, the case is far stronger than this letter lays out, because both Parnas and Barr were named in the whistleblower complaint.

Worse still, this letter doesn’t talk about any of the things Bill Barr’s DOJ has done that obstructed full investigation of the complaint:

  • Scoping the assessment of the complaint to specifically avoid connecting the complaint to the investigation of Parnas and Fruman
  • Not sharing the complaint, as required by MOU, with the FEC, which would have led the FEC to tie the complaint to the pre-existing investigation it had of Parnas and Fruman
  • Getting OLC to invent reason to withhold the complaint from Congress, which if it had been successful would have prevented all investigation of these activites

In short, the actions of DOJ overseen by Barr, not just his mention in the complaint and ties to Victoria Toensing and Joe DiGenova, mandate his recusal. But for some reason (perhaps because that would be more aggressive than even Bondy is willing to go), Bondy doesn’t include those actions.

Most interestingly, Bondy doesn’t include any of the allegations Parnas had made publicly about Barr’s potential more direct role. Nor does he answer the question of whether or not Parnas has texts more directly implicating Barr.

What Bondy does do, in the wake of the press blitz he has choreographed, is note that “evidence has been brought to light linking you further to your long-time colleagues Victoria Toensing and Joseph DiGenova, as well as to Mr. Giuliani, which undoubtedly creates at least the public appearance of a conflict of interest.” I mean, there is, absolutely, the appearance of a conflict of interest, but Bondy was the one who brought all that evidence to light!

Finally, though, Bondy suggests, with uncertain veracity, that SDNY has done things that suggest a purported conflict has already harmed Parnas.

In addition to harmful perceptions, this conflict of interest appears to have caused actual harm to Mr. Parnas who, given delays in the production of discovery in his federal case, was rendered unable to comply with a duly-issued congressional subpoena in time for congressional investigators to make complete use of his materials or properly assess Mr. Parnas as a potential witness. Furthermore, prosecutors have, thus far, refused to meet with Mr. Parnas and to receive his information regarding the President, Mssrs. Giuliani, Toensing, DiGenova and others–all of which would potentially benefit Mr. Parnas if he were ever to be convicted and sentenced in his criminal case.

For better and worse, getting FBI to image a bunch of phones and return them to a defendant within three months including two major holidays is not that long a wait. It took two months before Special Master Barbara Jones first started making privilege designations in the Michael Cohen case (involving one of the same prosecutors), and that was an even more politically sensitive case than this one. So while mentioning the delay is useful for Democrats (especially when the Senate tries to refuse to hear Parnas’ testimony because it didn’t get turned over in time), and valuable from a defense standpoint as it lays groundwork for appeal, it’s not a real injury on the part of prosecutors.

With regards to prosecutors’ refusal to meet with Parnas about cooperating against his possible co-conspirators, as the WSJ reported yesterday, late last year Bondy failed to convince SDNY that Parnas was not — as accused in his indictment — directed by a still-unnamed Ukrainian official to try to oust Marie Yovanovitch.

At a meeting with prosecutors from the Manhattan U.S. attorney’s office late last year, people familiar with the matter say, Mr. Parnas’s attorney disputed that he pushed for the removal of the U.S. ambassador to Ukraine at the behest of a Ukrainian official—one of the charges in the campaign finance indictment.

This is another way of saying that Parnas is unwilling to plead to the allegations in the existing indictment, and may also suggest that while Parnas is happy to incriminate Rudy and his American buddies, he’s not willing implicate his original boss, whoever that might be. So prosecutors likely have good reason not to meet with Parnas to hear him implicate Rudy and friends (not least, because they already have this documentary evidence that implicates them anyway, and now Parnas is providing whatever testimony they might need on the Rachel Maddow Show).

Bondy is absolutely right: Bill Barr should have recused from this — and all review of the whistleblower complaint — back in August when it was clear he was named. Even assuming Barr took no action on any of this influence peddling, this goes well beyond just the appearance of conflict to known participation in known events — such as the meeting with Rudy that DOJ admitted to only last week after covering it up for months — that merit recusal.

But Bondy is also being less than candid with his letter, playing the public docket as much as he is making a real legal request.

Lev Parnas Wouldn’t Reveal Whether He Has Receipts on Bill Barr

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I suggested in this post that Lev Parnas appears to believe that how and when he was arrested was an attempt to silence him and force him to take the fall for Trump.

With that in mind, I want to reexamine why he might believe that coming forward now might help his defense.

Obviously, one thing he is trying to do — thus far unsuccessfully — is make it clear that in his actions regarding Ukraine, he is a co-conspirator with the President, Victoria Toensing, Joe DiGenova, and, of course, Rudy Giuliani. That doesn’t mean he didn’t insert himself into that role — by all appearances he did; that’s what his existing indictment is about, how he spent big money to insinuate himself into Trump’s immediate circle.

But since that time, Rudy, Toensing, and DiGenova took actions that might be deemed an overt act of a conspiracy. So did Trump, not least on July 25, 2019, on a call with President Zelensky. Implicating powerful Americans in his influence-peddling is particularly important because, if he can’t do that, he may be exposed to further charges. WSJ reports that, late last year, Parnas’ lawyer Joseph Bondy tried to convince prosecutors that Parnas did not “push[] for the removal of the U.S. ambassador to Ukraine at the behest of a Ukrainian official—one of the charges in the campaign finance indictment.” If Parnas can claim that anything he did after some point in 2018 — which otherwise might be deemed to be FARA violations, suborning perjury, Foreign Corrupt Practices Act violations, bribery, and more — he did with the approval of the President of the United States, he might be able to claim that those actions were the official foreign policy of the United States, which would basically be the same claim Trump is using to defend against impeachment.

None of that may matter, however, depending on what SDNY plans or is allowed to do.

After all, Barr had been briefed on this investigation since shortly after he was confirmed, probably indicating that SDNY deemed it a significant matter reflecting the sensitivities of an investigation into political figures including Pete Sessions, some Las Vegas politicians, Ron DeSantis, and the President’s SuperPAC. As such, Barr would receive advance notice before SDNY took steps against any of these political figures (and it would have to happen before pre-election blackouts kick in in August). The Criminal Division would need to approve any search or prosecution of an attorney, covering Rudy, Toensing, and DiGenova. Barr would have to approve any legal process targeting media figures like John Solomon or Sean Hannity, as he would have to approve their treatment as subjects of the investigation. And, just on Monday, Barr stated he will require Attorney General approval before DOJ or FBI can open a counterintelligence investigation into a presidential campaign (and Trump started his reelection campaign almost immediately upon inauguration).

In short, for SDNY to go after any of Parnas’ other known potential co-conspirators, aside from Fruman, Bill Barr or Criminal Division head Brian Benczkowski would have to approve.

That gives Barr veto power over including most of Parnas’ potential co-conspirators in an indictment with him. And he has made no secret that he was brought in to protect Trump from facing any legal consequences for his crimes.

For a time, it looked like Barr believed he couldn’t protect Rudy. But then Rudy loudly announced he had insurance.

“I’ve seen things written like he’s going to throw me under the bus,” Giuliani said in an interview with Fox News’ Ed Henry about the characterizations and comments made in the media about him and his relationship with the president. “When they say that, I say he isn’t, but I have insurance.”

And if Rudy’s actions are beyond legal sanction, then Parnas is left holding the bag, just like Michael Cohen appears to have been for hush payments he made on the orders of Trump. Indeed, while Parnas expressed some interest in cooperating with prosecutors, if prosecutors are barred from pursuing anyone more senior than Parnas, then there’s little for Parnas to offer.

Which brings us to Parnas’ expressed fear of Barr.

In the second installment of his Maddow interview, Parnas claimed he was doing all of this because he fears Barr — or deems Trump too powerful when he is protected by Barr.

PARNAS: The only reason – if you’ll take a look, and you know very well because you have been following, the difference between why Trump is so powerful now, and he wasn’t as powerful in ’16 and ’17 –

MADDOW: Uh-huh.

PARNAS: – he became that powerful when he got William Barr.

MADDOW: Yes.

PARNAS: People are scared. Am I scared? Yes, and because I think I`m more scared of our own Justice Department than of these criminals right now, because, you know, the scariest part is getting locked in some room and being treated as an animal when you did nothing wrong and – or when you’re not, you know, and that’s the tool they’re using.

I mean, just – because they’re trying (ph) to scare me into not talking and with God’s help, and with my lawyer next to me that I know will go bat for me no matter what, with the truth –

MADDOW: Yes.

PARNAS: – and I’m taking a chance.

That comment makes sense whether he believes Barr had him arrested to silence him or even just worries that Barr will protect everyone else. It would even make sense if — as is quite possible — Parnas is working for powerful Russians or Ukrainians who’ve been trying to control Trump by making him vulnerable.

There’s no doubt that abundant evidence can be shown that Barr is not just covering up, but actively obstructing any investigation into Trump’s actions. As I’ve noted repeatedly, Barr or one of his subordinates:

  • Scoped the assessment of the whistleblower complaint to ensure it wasn’t tied to the ongoing investigation of Parnas and Fruman in SDNY
  • Failed to share the whistleblower complaint with the FEC, which (if it were functional) could have imposed civil penalties for the illegal solicitation of campaign help
  • Had OLC invent a bullshit reason to withhold the complaint from Congress
  • Had Kerri Kupec exonerate Trump publicly, reportedly in response to a demand from Trump

Mind you, I’m the only one harping on this obstruction, but they’re still details that deserve more attention.

But that’s not how Parnas is focusing on Barr.

In his interview with Maddow, Parnas twice alleged that he had seen Barr receiving calls from Rudy and others on this stuff. First, he said that Rudy and Toensing and DiGenova had told him they were engaging Barr on this project.

MADDOW:  Did Rudy Giuliani tell you he had spoken to the attorney general specifically about Ukraine?

PARNAS:  Not only Rudy Giuliani. I mean, Victoria and Joe, they were all best friends. I mean, Barr was – Attorney General Barr was basically on the team.

He then expanded on that to say, first, that he witnessed conversations between the lawyers and Barr, and then, less convincingly, claimed that “Barr had to have known everything. I mean, it’s impossible.”

PARNAS:  I personally did not speak to him, but I was involved in lots of conversations that Joe diGenova had with him in front of me, Rudy had with him in front of me, and setting up meetings with Dmytro Firtash’s team. I was involved in that.

MADDOW:  Do you know if Rudy Giuliani was ever in contact with Mr. Barr, specifically about the fact that he was trying to get Ukraine to announce these investigations into Joe Biden?

PARNAS:  Oh, absolutely.

MADDOW:  Mr. Barr knew about it?

PARNAS:  Mr. Barr had to have known everything. I mean, it’s impossible.

MADDOW:  Did Rudy Giuliani tell you he had spoken to the attorney general specifically about Ukraine?

PARNAS:  Not only Rudy Giuliani. I mean, Victoria and Joe, they were all best friends. I mean, Barr – Barr was – Attorney General Barr was basically on the team.

Claiming “Barr had to have known everything,” while seemingly consistent with the public actions of Barr’s DOJ, is not going to be strong enough to get Barr, personally, in trouble.

Though it is worth noting that (in the same way that Devin Nunes unforgot speaking to Parnas as Parnas started rolling out receipts), CNN reported that Barr had attended a meeting where Rudy pitched the case of the Venezuelan paying for the grift long after he had to have known Rudy was under criminal investigation.

The Giuliani meeting at the Justice Department in September became public months ago in the wake of the arrest of two Giuliani associates, Lev Parnas and Igor Fruman, who were working on Giuliani’s Ukraine mission for the President.

Brian Benczkowski, assistant attorney general for the criminal division, issued a public statement at the time expressing regret for holding the meeting and saying he wouldn’t have met with Trump’s personal lawyer had he known about Giuliani’s role in the ongoing investigation.

But department officials didn’t mention then that Barr was also in the meeting. Barr was at the meeting for about 10 minutes and had dropped in to greet other lawyers who worked alongside Giuliani to represent the Venezuelan businessman, according to a Justice Department official. His presence is also notable because Justice officials have said he was briefed after taking office in February on the investigation by Manhattan federal prosecutors into Parnas and Fruman, and the connections with Giuliani.

There’s almost certain to be more, though. When Maddow asked Parnas whether he knew whether Barr ever spoke with any of the Ukrainians that Parnas was grifting (the question I’ve been asking for some time), he claimed not to recall, even though the entire point of his interview was to talk about how he had come forward out of fear of Bill Barr.

MADDOW:  Do you know if Attorney General William Barr every [sic] spoke with any Ukrainian officials?

PARNAS:  I don’t recall at this moment. I’d have to look at my text messages and see.

There is absolutely no way that Parnas did not know, when he gave this answer, whether he has proof that Barr was personally involved with the three Ukrainians who have spoken to John Durham. None.

Which likely means Parnas does have proof that, contrary to every denial DOJ has issued since they started issuing very carefully crafted denials since September 25, Barr did interact with the corrupt Ukrainians Rudy was teeing up.

Parnas kept receipts, for just the moment when his grifting on behalf of Trump and his associates can do damage. Those receipts might, conservatively, make additional charges from SDNY more difficult. They might even make a cooperation deal possible.

But it sure sounds like something even crazier. Parnas apparently believes Barr makes Trump something he hadn’t been before, protecting Trump in a way he hadn’t been. But that’s only true if Parnas can’t produce proof that Barr is part of this conspiracy.

In other words, whatever the reality, Parnas appears to be dribbling out the receipts implicating the people that SDNY prosecutors work for in an attempt to either increase the chances of cooperating out of his indictment or at least raising the costs of any further charges.

Perhaps a more interesting question is why SDNY prosecutors permitted Parnas to launch this media campaign. They didn’t have to: Parnas got permission to modify the protective order on this stuff so he could release it, and they may have had to question Robert Hyde earlier than they otherwise intended to because of the publicity surrounding Parnas’ texts with Hyde. SDNY might be doing it to encourage a criminal target to run his mouth and say something incriminating. They might have done it for counterintelligence reasons, to see who responded to this media campaign. But it’s also possible that SDNY is happy for Parnas to expand the possible scope of their own investigation by making it harder for Barr to protect Rudy and others.

The suspense, though, has to do with that non-committal answer Parnas gave about whether he has any texts directly implicating the Attorney General of the United States. A defendant being prosecuted by the Department of Justice was asked whether he had proof that the top law enforcement officer in the country was personally implicated in his corrupt influence peddling.

And Parnas is not telling. Yet.

Useful But Not Sufficient: FBI’s FISA Fix Filing

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As one of her last acts as presiding FISA judge, Rosemary Collyer ordered the government to explain how it will ensure the statement of facts in future FISA applications don’t have the same kind of errors laid out in the DOJ IG Report on Carter Page.

THEREFORE, the Court ORDERS that the government shall, no later than January 10, 2020, inform the Court in a sworn written submission of what it has done, and plans to do, to ensure that the statement of facts in each FBI application accurately and completely reflects information possessed by the FBI that is material to any issue presented by the application. In the event that the FBI at the time of that submission is not yet able to perform any of the planned steps described in the submission, it shall also include (a) a proposed timetable for implementing such measures and (b) an explanation of why, in the government’s view, the information in FBI applications submitted in the interim should be regarded as reliable.

DOJ and FBI submitted their response on Friday. (This post lays out new revelations about the FISA process in it.) While I think there are useful fixes, most laid out in FBI Director Chris Wray’s response to the IG Report itself, the fixes are insufficient to fix FISA.

The filing largely focuses on the institution and evolution of the current accuracy review process. It promises to review the memorandum guiding that process (though doesn’t set a deadline for doing so), and adds some forms and training to try to ensure that FBI Agents provide DOJ all the information that the lawyers should include in an application to FISA. One of those forms — pertaining to human sources — seems important though might lead to counterintelligence problems in the future. Another, requiring agents to provide all exculpatory information, may improve the process. But fundamentally, DOJ and FBI assume that the process they currently use just needs to be improved to make sure it works the way they intend it to.

They’re probably insufficient to fix the underlying problems in the Carter Page FISA application.

The FISA Fix Filing is based on faulty assumptions

I say that, first of all, because the FISA Fix Filing adopts certain assumptions from the DOJ IG Report that may not be valid. The FISA Fix Filing assumes that:

  • FBI was responsible for all the errors on the Carter Page application
  • The right people at FBI had the information they needed
  • The Carter Page application was an aberration

The IG Report ignored where DOJ’s National Security Division contributed to errors

As I note in this post, possibly because of institutional scope (DOJ IG cannot investigate DOJ’s prosecutors), possibly because of its own confirmation bias, the IG Report held the FBI responsible for all the information that was known to investigators, but not included in the Carter Page FISA applications. Yet the report showed that at least two of the things it says should have been included in the Page applications — Page’s own denials of a tie with Paul Manafort, and Steele’s own derogatory comments about Sergei Millian — were shared with DOJ’s Office of Intelligence, which writes the applications. Indeed, Rosemary Collyer even noted the latter example in her letter. It also shows DOJ’s National Security Division had confirmed a fact — that Carter Page had no role in the platform change at the RNC — before FBI had.

Because the FISA Fix Filing assumes FBI is responsible for everything mistakenly excluded from the applications, the proposed fixes shift even more responsibility to FBI, requiring agents, with FBI lawyers, to identify the information that should be in an application. But if — as the IG Report shows — sometimes FBI provides the relevant information but it’s not included by the lawyers, then ensuring they provide all the relevant information won’t be sufficient to fix the problem.

The focus on FBI to the detriment of NSD has one other effect. NSD includes few changes to their behaviors in the FISA Fix Filing (largely limited to training and inadequate accuracy reviews). And where they do consider changes, they do not — as ordered by the court — set deadlines for themselves.

The IG Report barely noted the import of the failure to share information in timely fashion

The IG Report deviates radically from almost twenty years of after-action reports that have consistently advocated for more sharing of national security information. It recommends that Bruce Ohr be disciplined for doing just that. Perhaps to sustain that bizarre conclusion, the IG Report focuses almost no attention on an issue that is critical to fixing the problems in the Carter Page applications: ensuring that the people submitting a FISA application have all the information available to the US government. The IG Report showed a 2 month delay before the Crossfire Hurricane team obtained the Steele reports, a month delay in getting feedback from State Department official Kathleen Kavalec, and delays in obtaining the full extent of Bruce Ohr’s knowledge on the dossier, all of which contributed to the delayed vetting of the dossier. But the IG Report doesn’t explore why this happened. And the FBI FISA Fix only addresses it by reminding agents to consult with other agencies.

In another of the 17 problems with the FISA applications, the people submitting the applications apparently did not learn that Christopher Steele had admitted meeting with Yahoo in court filings.

According to the Rule 13 Letter and FBI officials, although there had been open source reporting in May 2017 about Steele’s statements in the foreign litigation, the FBI did not obtain Steele’s court filings until the receipt of Senators Grassley and Graham’s January 2018 letter to DAG Rosenstein and FBI Director Christopher Wray with the filings enclosed. We found no evidence that the FBI made any attempts in May or June 2017 to obtain the filings to assist a determination of whether to change the FBI’s assessment concerning the September 23 news article in the final renewal application.

In other instance (as noted above), while NSD had affirmative knowledge that Carter Page had not been involved in the change to the RNC platform, FBI had a different view, yet this issue was not resolved to fully discount the claim in FISA applications. The IG Report also faults FBI managers (but never NSD ones) for not aggressively questioning subordinates to get a full sense of problems with the applications. All of these are information sharing problems, not errors of transparency. Making the case agent fill out forms about what he or she knows will have only limited effect on ensuring that those agents obtain all the information they need, because if they don’t know it, they won’t know to look for it.

With the Crossfire Hurricane investigation, that problem was exacerbated by the close hold of the investigation (most notably by running the investigation out of Main Justice) and, probably, by the urgency of investigating an ongoing attack while it’s happening, which likely led personnel to focus more on collecting information about the attack than exculpatory information.

The FISA Fix Filing includes a vaguely worded document describing technological improvements — including a workflow document that sounds like bureaucratic annoyance as described — that suggest FBI is considering moving some of this to the cloud.

Corrective Action #11 requires the identification and pursuit of short- and long-term technological improvements, in partnership with DOJ, that aid in consistency and accountability. I have already directed executives in the FBI’s Information Technology Branch leadership to work with our National Security Branch leadership and other relevant stakeholders to identify technological improvements that will advance these goals. To provide one example of a contemplated improvement, the FBI is considering the conversion of the revised FISA Request Form into a workflow document that would require completion of every question before it could be sent to OI. The FBI proposes to update the Court on its progress with respect to this Corrective Action in a filing made by March 27, 2020.

It’s still not clear this would fix the problem (it’s still not clear how Bruce Ohr would have shared the information he had in such a way that he wouldn’t now be threatened with firing for doing so, for example). And for a close hold investigation like this, such a cloud might not work. But it would be an improvement (if FBI could keep it secure, which is a big if).

The FISA Fix Filing does have suggests to improve information sharing. But because the scope of the problem, as defined in the IG Report, doesn’t account for information that simply doesn’t get to the people submitting the application, it’s not clear it will fix that problem.

No one knows whether the Page applications are an aberration or not

Finally, no one yet knows whether the Carter Page application was an aberration, and thus far, no one at DOJ has committed to finding out. DOJ IG has committed to doing an audit of the Woods Procedure process that failed in the Carter Page case (and the FISA Fix Filing committed to respond to any findings from that).

The Government further notes that the OIG is conducting an audit of FBI’s process for the verification of facts included in FISA applications that FBI submits to the Court, including an evaluation of whether the FBI is in compliance with its Woods Procedures requirements. The Department will work with the OIG to address any issues identified in this audit.

Yet everyone involved admits that the most serious problems with the Page applications consisted of information excluded from the application, not inaccurate information in it.

Many of the most serious issues identified by the OIG Report were … [when] relevant information is not contained in the accuracy sub-file and has not been conveyed to the OI attorney.

Doing an audit of the Woods Procedures, then, does not test the conclusion that Page’s applications are an aberration, and therefore does not test whether more substantive fixes are necessary.

DOJ IG has considered doing more — and PCLOB suggested last year they might get involved (though technically, their counterterrorism scope wouldn’t even permit them to look at counterintelligence cases like Page’s) — but thus far there’s no plan in this filing to figure out of this is a broader problem.

The existing oversight for FISA may be inadequate

There are several reasons to believe that the existing oversight regime for FISA may be inadequate.

As noted, the existing IG plan to audit the Woods Procedure is insufficient to identify whether the existing FISA Fix Filing is sufficient to fix the problem. Also as noted above, the jurisdiction of DOJ’s IG, because it cannot review the actions of prosecutors, might not (and in this case, pretty demonstrably did not) adequately review all parts of the process, because it could not subject NSD attorneys to the same scrutiny it did FBI.

Then there are shortcomings to NSD’s oversight regime — shortcomings that Judge James Boasberg — the new presiding FISA Judge and so the just now in charge of overseeing these fixes — already highlighted in an opinion on problems with Section 702 queries.

As the FISA Fix Filing describes, OI (the same office that the IG Report let off when it received information but did not include it in applications) does a certain number of oversight reviews each year. But they don’t do reviews in every FBI field office (to which FBI devolved the FISA application process some years ago), and they don’t do accuracy reviews at every office where they do an oversight review.

OI’s Oversight Section conducts oversight reviews at approximately 25-30 FBI field offices annually. During those reviews, OI assesses compliance with Court-approved minimization and querying procedures, as well as the Court orders. Pursuant to the 2009 Memorandum, OI also conducts accuracy reviews of a subset of cases as part of these oversight reviews to ensure compliance with the Woods Procedures and to ensure the accuracy of the facts in the applicable FISA application. 5 OI may conduct more than one accuracy review at a particular field office, depending on the number ofFISA applications submitted by the office and factors such as whether there are identified cases where errors have previously been reported or where there is potential for use of FISA information in a criminal prosecution. OI has also, as a matter of general practice,_ conducted accuracy reviews of FISA applications for which the FBI has requested affirmative use of FISA-obtained or -derived information in a proceeding against an aggrieved person. See 50U.S.C. §§ 1806(c), 1825(d).

During these reviews, OI attorneys verify that every factual statement in the categories of review described in footnote 5 is supported by a copy of the most authoritative document that exists or, in enumerated exceptions, by an appropriate alternate document. With regard specifically to human source reporting included in an application, the 2009 Memorandum requires that the accuracy sub-file include the reporting that is referenced in the application and further requires that the FBI must provide the reviewing attorney with redacted documentation from the confidential human source sub-file substantiating all factual assertions regarding the source’s reliability and background.

As Boasberg noted in his 702 opinion last year, this partial review may result in problems going unaddressed for years.

Personnel from the Office of Intelligence (OI) within the Department of Justice’s National Security Division (NSD) visit about half of the FBI’s field offices for oversight purposes in a given year. Id at 35 & n 42. Moreover OI understandably devotes more resources to offices that use FISA authorities more frequently, so those offices [redacted] are visited annually, id at 35 n. 42, which necessitates that some other offices go for periods of two years or more between oversight visits. The intervals of time between oversight visits at a given location may contribute to lengthy delays in detecting querying violations and reporting them to the FISC. See, e.g., Jan. 18, 2019, Notice [redacted] had been conducting improper queries in a training context since 2011, but the practice was not discovered until 2017).

Furthermore, OI’s review of a subset of a subset of applications targeting Americans only reviews for things included in the application, not things excluded from it.

OI’s accuracy reviews cover four areas: (1) facts establishing probable cause to believe that the target is a foreign power or an agent of a foreign power; (2) the fact and manner of FBI’s verification that the target uses or is about to use each targeted facility and that property subject to search is or is about to be owned, used, possessed by, or in transit to or from the target; (3) the basis for the asserted U.S. person status of the target(s) and the means of verification; and (4) the factual accuracy of the related criminal matters section, such as types of criminal investigative techniques used (e.g., subpoenas) and dates of pertinent actions in the criminal case.

DOJ admits that this is a problem, and considers doing a check for the kind of information excluded from Carter Page’s applications, but doesn’t commit to doing so and (again, unlike FBI) doesn’t give itself a deadline to do so.

Admittedly, these accuracy reviews do not check for the completeness of the facts included in the application. That is, if additional, relevant information is not contained in the accuracy sub-file and has not been conveyed to the OI attorney, these accuracy reviews would not uncover the problem. Many of the most serious issues identified by the OIG Report were of this nature. Accordingly, OI is considering how to expand at least a subset of its existing accuracy reviews at FBI field offices to check for the completeness of the factual information contained in the application being reviewed. NSD will provide a further update to the Court on any such expansion of the existing accuracy reviews.

Improving these oversight reviews will have a salutary effect on all FISA authorities, not just individualized orders. Since Boasberg has already identified the inadequacies of the current reviews, I would hope he’d ask for at least an improved oversight regime.

Treating alleged subpoenas like they’re not subpoenas

There’s a change promised that I’m unsure about: Chris Wray’s voluntary decision to subject Section 215 and pen register orders to heightened accuracy reviews.

Currently, the accuracy of facts contained in applications for pen register and trap and trace surveillance pursuant to 50 U.S.C. § 1841 , et seq. , or applications for business records pursuant to 50 U.S. C. § 1861 , et seq. , must, prior to submission to the Court, be reviewed for accuracy by the case agent and must be verified as true and correct under penalty ofpeijury pursuant to 28 U.S.C. § 1746 by the Supervisory Special Agent or other designated federal official submitting the application. Historically, the Woods Procedures described herein have not been formally applied by the FBI to applications for pen register and trap and trace surveillance or business records. As discussed in the FBI Declaration, FBI will begin to formally apply accuracy procedures to such applications and proposes to update the Court on this action by March 27, 2020.

FBI has, for years, told the public these are mere grand jury subpoena equivalents, and so the privacy impact is not that great. That Wray thinks these need accuracy reviews suggests they’re more intrusive than that, in which case by all means FBI should add these reviews.

But as I suggested in this post, some of the problems with the Carter Page applications might have been avoided had the Crossfire Hurricane team obtained call records from both Page and George Papadopoulos early in the process, which would not only have confirmed Page’s accurate claim that Paul Manafort never returned his emails (undermining a key claim from the dossier), but it would have revealed Papadopoulos’ interactions with suspect Russian asset Joseph Mifsud, thereby pinpointing where the investigative focus should have been (and making it a lot harder for Papadopoulos to obstruct the investigation in the way he did). The IG Report doesn’t ask why this didn’t happen, but it seems an important question because if the FBI chose not to use ostensibly less intrusive legal process because existing Section 215 applications are not worth the trouble, then making the purportedly less-intrusive applications even more onerous will only lead to a rush to use full FISA, as appears to have happened here.

Further breaking the affiant-officer of the court relationship

One of the more insightful observations from the IG Report described how OI attorneys and FBI agents applying for FISA orders don’t work as closely as prosecutors and agents on a normal case.

NSD officials told us that the nature of FISA practice requires that OI rely on the FBI agents who are familiar with the investigation to provide accurate and complete information. Unlike federal prosecutors, OI attorneys are usually not involved in an investigation, or even aware of a case’s existence, unless and until OI receives a request to initiate a FISA application. Once OI receives a FISA request, OI attorneys generally interact with field offices remotely and do not have broad access to FBI case files or sensitive source files. NSD officials cautioned that even if OI received broader access to FBI case and source files, they still believe that the case agents and source handling agents are better positioned to identify all relevant information in the files.

The proposed FISA fixes seem to derive from this OI viewpoint, that because OI don’t work closely with agents they need to replace cooperation that is often inadequate on normal criminal investigations with a process that has even less cooperation for applications that are supposed to have a higher degree of candor.

The FISA Fix Filing seems to envision FBI lawyers picking up this slack, but especially since DOJ devolved the application process to Field Agents some years ago, it’s not clear, at all, why this would result in better lawyering.

Formalizing the role of FBI attorneys in the legal review process for FISA applications, to include identification of the point at which SES-level FBI OGC personnel will be involved, which positions may serve as the supervisory legal reviewer, and establishing the documentation required for the legal review;

[snip]

Corrective Action #7 requires the formalization of the role of FBI attorneys in the legal review process for FISA applications, to include identification of the point at which SES-level FBI OGC personnel will be involved, which positions may serve as the supervisory legal reviewer, and establishing the documentation required for the legal reviewer. Through this Corrective Action, the FBI seeks to encourage legal engagement throughout the FISA process, while still ensuring that case agents and field supervisors maintain ownership of their contributions.

As it is, the FISA process requires a more senior agent to be the affiant on an application, which in at least one of the Page applications, resulted in someone who had less knowledge of the case making the attestation under penalty of perjury.

It may be that these changes go in the opposite direction from where FISA should go, which would be closer to the criminal warrant model where a judge will have an FBI affiant who anticipates taking the stand at a trial (and therefore needs to retain his or her integrity to avoid damaging the case), and an office of the court signing off on applications (whom judges can sanction directly). That is, by introducing more layers and absolving OI from some of the direct responsibility for the process, these proposed changes may make FISA worse, not better.

Remarkably, the court might consider something far more effective.

On Friday, Boasberg appointed David Kris as amicus for this consideration. Kris literally wrote the book on all this, in addition to writing the 2001 OLC memo that eliminated the wall between the intelligence collected under FISA and the prosecutions that arise out of them. In a recent podcast, he mused that the way to fix all this may be to give defendants review of their applications, something always envisioned by Congress, but something no defendant has done. That — along with a more robust oversight process — seems like it has a better chance of changing the way the FBI and DOJ approach FISA applications than adding a bunch more checklists for the process.

The frothy right is in a lather over Kris’ appointment, which is a testament to how little these people (up to and especially Devin Nunes) understand FISA. But he has the institutional clout to be able to recommend real fixes to FISA, rather than a bunch of paperwork to try to make the Woods Procedure to work the way it’s supposed to.

DOJ could, voluntarily, provide review to more defendants. Alternately, Congress could mandate it in whatever bill reauthorizes Section 215 this year. Or Kris could suggest that’s the kind of thing that should happen.

Update: David Kris submitted his recommendations to Boasberg. Like me, he finds Wray’s plan useful but not sufficient. Like me he notes that the agents doing the investigation should be the ones signing off on affidavits (and he suggests the FISC review more applications until new procedures are in place). Kris also focuses on cultural changes that need to happen.

One thing he doesn’t do is review DOJ’s role (though he does argue that part of this stems from conflict between DOJ and FBI).

He also notes that DOJ has not imposed deadlines for itself.