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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

KRISHNAMOORTHI: Currently?

MUELLER: Currently.

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

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

[snip]

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

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

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

KISLYAK: yeah.

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

KISLYAK: You’re absolutely right.

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

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

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

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

[snip]

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

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

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

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

[snip]

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

[snip]

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

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

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

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

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

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

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

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

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

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

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Trump Told One Key Truth at His Convention

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

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

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

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

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

COVID vs. Law and Order

[snip]

the President is hammering a law-and-order message

[snip]

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

[snip]

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

FLYNN: Okay. Ummm

[Timestamp: 05:20]

KISLYAK: Is by security video. Secure video line.

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

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

KISL YAK: I will

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

KISL YAK:

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

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

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

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

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

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

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

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

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

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

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

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

Don Jr

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

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

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

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

Sam Clovis

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

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

Clovis could not be reached.

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

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

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

Erik Prince and Steve Bannon

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

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

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

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

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

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

That’s interesting because SSCI referred Bannon as well.

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

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

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

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

SSCI believes that Bannon may have lied to the committee.

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

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

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Horowitz

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

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

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

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

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

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

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

That’s true for three reasons:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

There are several takeaways from this table.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Updated for clarity.

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This is Impossible, Part One: Climbing the Mountain

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There’s no second wave of the Covid-19 pandemic, and there never really was a first wave. Like generals always fighting the last war, that’s a metaphor we lifted from the 1918 Flu Pandemic. Whether it was a good metaphor then or not, it’s not a good metaphor now. In a way, there isn’t even a pandemic, not in any functional sense. There’s just thousands and thousands of local epidemics, breaking out, dying down, and breaking out again. Because of this, we’re on edge, trying to judge our actions, trying to judge our risk, trying to understand what’s ok in the Fog of Disease. Deciding we don’t care, deciding we might be wrong again. Losing our damn minds. This is not something most people have to deal with.

But there is a group of people who do deal with the ups and downs, the sudden changes in freedom and pain all the time: people with chronic and remitting diseases. In a way, a pandemic is just the moment where society has a relapsing and remitting disease, though it’s not just Covid-19 itself, it’s also the economic and social impact, and how everything changes without warning.

I know these feelings well, I have several diseases that come and go, and I have dealt with them all my life, even before I knew what they were. One day I may be mostly ok, and the next, unable to get far from my bed. I might have weeks of freedom, then suddenly be barely able to get around my house. I have a partner, and a daughter, and many friends who have all come to understand that there are bad times and I can’t control them. I can influence them, but all my promises and all my plans are contingent.

What I have learned in the process of 40 years of dealing with incurable and unpredictable illness suddenly applies to the whole damn world, so here goes.

I call the process Climbing the Mountain, partly because I can’t climb a mountain. The Himalayas are right out.

I can push it down further but I’m told that’s gross.

I have a disease called Ehlers-Danlos Syndrome (hEDS) which causes my joints to skitter around in unpleasant ways, and when I was young I had a number of amazing party tricks my physical therapist has banned me from ever doing again. But I can show you one with my thumb doing things thumbs aren’t supposed to do, which has also been voted by one party of friends the least gross. When I was young I was a gymnast and a dancer, which is a mixed bag for EDS kids. You’re likely to damage your body, but you also get used to using and living in a damaged body, which can be a real blessing as you get older.

The first part of Climbing the Mountain, and for many people the hardest, is accepting what is. Just that: accepting what is, right now. There’s something bold and great in rejecting what is and doing what’s not possible, at least in stories. And there is power in rejecting the idea that what is can’t be changed, because it always can be in some way. But without accepting what is, you can’t make wise choices on how to change it.

I can’t climb a mountain. We can’t stop or cure SARS-CoV-2, at least right now. We can’t just go back to life as we knew it. One of the things you have to accept with chronic illness is that what was normal is gone, and it’s never coming back.

Let me say that again: What was normal life for you, from birth to 2019, is gone. It’s never coming back. Ever. What’s in front is unknown, confusing, distressing, painful, and not what you know as normal, and all you can do is go forward to climb a mountain you can’t climb.

I have PTSD, which some clinicians classify as cPTSD, but for the sake of clarity I’ll just call it fucking awful PTSD. Sometimes I can’t get out of bed because my brain is torturing me. One of the things I have PTSD from is an episode of activities done to me as a child in a clinical setting that many years later the US government would call “enhanced interrogation techniques” when done to Iraqis. Also, I have lost many people I loved. I have been homeless, stalked, and beaten. I have been hounded and harassed. I come by my crazy honestly. I have nightmares most of the time, and mornings just aren’t a thing I can do very often. When you’re looking forward into an abyss and feeling weak, it’s easy to write yourself, the world, or both, off. But just accepting the limitations makes you stronger. I pick my weak times and distract myself. I don’t try to be strong in the morning, when I’m waiting for the howling ghosts in my head to die down. But I’ve learned that they will.

This is the time I am preparing to climb the mountain. I eat a bit, do something nice, look after a plant, look at something pretty. NatGeo social media accounts are great. Food posts, nature, ceramic art, are all how I un-doomscroll in the morning, when I’m waiting for the screaming demons of last night to fade away.

For everyone, for you, now, it’s the same. You need a method of un-doomscroll to let dread and sadness pass. Nature Instagram, Paleontology podcasts, Bird YouTube. It’s all great.

Then, the climbing.

I am currently training to do a half-marathon. It’s something I’ve been doing on and off for about four years. Obviously, as my doctor and physical therapist would tell you, I should not run a half marathon, and it’s not my real goal. My real goal is a full marathon. 15 years ago when I got to my first physical therapist and was diagnosed with hypermobility, I couldn’t walk. “I’d like to do martial arts and parkour one day,” I told her. She gave me a look I can’t fit in words and replied “Let’s get you walking and see if we can get you back on a bike.” We did both of those, but it was long and hard and painful and I cried a lot. I still cry a lot, which is ok and kind of my thing.

I have had to start and stop my marathon training more times than I care to count, because I don’t care to count at all. I need every day to be new, because I can’t control where it goes. I listen to my body, and my reality, and let that guide me. I didn’t learn this with EDS originally, I learned it with my first chronic condition, childhood-onset IBS. I learned that sometimes I could do anything I wanted, and sometimes I couldn’t leave the house without throwing up and shitting myself. It’s a lot better than it was, because I’ve learned it. I’ve accepted it. Not at once, but eventually after a lot of failure and pain and gross bodily fluids. I did eventually accept it, I listened to it, some have said I gave into it. “You let these things define you and limit you,” I’ve been told by so many able-bodied people who I think just didn’t like what I represented: Working with a thing you can’t control, and can’t beat, taking over your life.

There’s a thing you can’t control, and can’t beat, taking over your life right now.

Working with that kind of thing means being mindful in the moment. Can I eat this? I ask myself, and if the answer is no, I don’t. Sometimes that means missing out, and sometimes it means pissing off friends and being a damn inconvenience. “How is the bathroom situation where we’re going?” “What kind of food is available, can I bring my own?” And the most dreaded and annoying: “I have to leave now. Right now.”

For you now, it’s the same. “Can I go there?”

“Is this way of eating out ok?”

“Do the government guidelines make sense?”

“How does this damn thing work and why does it keep changing?”

This is all the discomfort of climbing the mountain. You learn, you fiddle with it, and you let it change. You accept the change. You update how you live, knowing you’ll update it again.

But there’s the fun part too. Figuring out how long I can run/walk (called Jeffing in the running world) when I’m training, and learning to be an excellent cook in the process of understanding my relationship with food. But neither of these make it all better. Not training or cooking, or therapy for Major Depressive Disorder or medications for PTSD gets me to the top of the mountain. It’s like I keep telling you, I can’t climb to the top of the mountain. We can’t just make this go away. We won’t, and we can’t. It just is.

But, I can climb. Almost every day, in some way or another. And when I fall, and I will inevitably fall, I will land higher on the mountain than I would have if I hadn’t been climbing.

That’s the trick. Right there.

Everyday you accept what is and work with it. Everyday you exercise your mind, body, and spirit. When you fall, and you will fall, you won’t be as low on the mountain. And you can climb a little higher until the next fall.

I know it sounds sisyphean. But it’s just impossible, not meaningless. It is, in fact, the most meaningful thing we can do. It’s just the little bits of impossible things you do every day when there is no such thing as normal anymore.

Here is how you climb a mountain you can’t climb: Accept what is, accept that it will change without notice. Learn how your life works, and what is possible. Figure out what you can do today, do it, and maybe if you’re lucky, a tiny bit more. Love things, even when you hate them.

Be completely quiet sometimes. Cry. Look at pretty things. Try to rest.

Try again.

Accept what is. Learn. Move. Rest. Climb. Fall.

Accept what is.

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How Chuck Ross Helped Make Roger Stone a Felon

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Last night, Chuck Ross all but admitted he doesn’t know what he’s talking about with respect to to the Roger Stone case.

I tweeted several things in response to this Ross coverage of the exposure of Igor Danchenko as Christopher Steele’s primary subsource. Ross got sloppy with a lot of details in his story, including everything in this paragraph:

The special counsel’s report debunked the claim about Cohen, saying that he did not visit Prague. It also said that no Trump associates conspired with Russia or helped release emails through WikiLeaks.

My tweet thread started by noting that Mueller did not say no Trump associates conspired with Russia. It specifically said that when the report said the investigation did not establish something — presumably including any such conspiracy — that didn’t mean there wasn’t any evidence. Indeed, there was evidence they may have, but the investigation was thwarted by the obstruction of Trump, Paul Manafort, Erik Prince, and others, including Roger Stone.

I then noted that both of Ross’ claims about the WikiLeaks finding were overstated (note, Ross also falsely claimed the report said Cohen didn’t go to Prague; Mueller’s congressional testimony did).

As noted, the report states clearly that the investigation was never able to determine whether Stone — who had a slew of suspicious calls in the lead-up to the Podesta email release — had a role in their timely release.

The investigation was unable to resolve whether Stone played a role in WikiLeaks’s release of the stolen Podesta emails on October 7, 2016, the same day a video from years earlier was published of Trump using graphic language about women.

I further noted that when a bunch of Stone-related warrants were released in April, a bunch that focused on a new strand of the investigation, investigating Foreign Agent (18 USC 951) charges on top of the conspiracy one that had long been listed in warrants, remained heavily redacted as part of an ongoing investigation. One of those affidavits made clear that Stone was one of the subjects of the investigation they were hiding that Foreign Agent prong of the investigation from.

It does not appear that Stone is currently aware of the full nature and scope of the ongoing FBI investigation.

The thing that appears to have really set Ross off, however, was my observation that he got Stone subpoenaed by credulously reporting his lies.

To add to the fun, Ross claimed (after admitting he didn’t know what I was talking about) that he barely wrote about Stone until after he was subpoenaed.

Stone was never subpoenaed by the House Intelligence Committee (that was one reason the government was able to show he obstructed that investigation; by claiming he had no communications to subpoena, he made it more likely he wouldn’t be subpoenaed). He was subpoenaed by the Mueller team.

It’s not clear precisely what date Stone was subpoenaed, but he complied in November 2018. A warrant explaining the subpoena reveals that the government learned Stone had texts involving Randy Credico from media accounts. Later in the affidavit, it specifically cites this story from Chuck Ross. The government used Ross’ attribution to Stone as his source to justify searching Stone’s houses for the old phone.

“Julian Assange has kryptonite on Hillary,” Randy Credico wrote to Stone on Aug. 27, 2016, according to text messages that Stone provided to The Daily Caller News Foundation.

[snip]

Pointing to the text messages, Stone asserts that Credico “lied to the grand jury” if he indeed denied being Stone’s contact to Assange.

“These messages prove that Credico was the source who told me about the significance of the material that Assange announced he had on Hillary. It proves that Randy’s source was a woman lawyer,” Stone told TheDCNF.

Stone, who is the men’s fashion editor for The Daily Caller, had struggled for months to provide evidence to back up his claims about Credico. The former friends had engaged in a he said-he said battle through various media outlets for months.

But Stone finally obtained the text messages, which he says is smoking gun evidence supporting his claims, after his lawyers were able to extract the communications from a cell phone he stopped using in 2016.

It is unclear whether Mueller’s team has also obtained the messages.

It turns out Mueller had obtained some of these texts from Stone’s iCloud and from Randy Credico. But there were a set that Credico no longer had, and so Ross’ credulous reporting of an obviously cherry picked set of texts provided some of the key justification for the subpoena and warrant. An initial version of the government’s exhibit list appears to source a series of texts between Credico and Stone from August and September 2016 to Stone’s return. Those texts included some showing the circumstances of Credico’s August 2016 interview with Julian Assange, which were part of the proof that Credico couldn’t have been the guy Stone was claiming as his go-between in early August 2016.

I’ve noted repeatedly that, by sharing his comms with Credico and Corsi in an attempt to rebut public claims, Stone proved two of the charges against him, that he lied when he claimed he had no such communications (and, indeed, provided proof that he knew of those texts). All that said, given that Trump commuted his sentence and that Ross and other frothers continue to lie about what Mueller found, telling lies to journalists that ended up getting him subpoenaed probably was a good trade-off for Stone.

Unless, of course, there was something more interesting on that phone that Ross’ credulous reporting helped prosecutors get a warrant for.

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The Absurdity of the Present: Stealing Vaccine Research

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Last week the breaking news in international political/media drama was the Russians hacking vaccine research in Europe and America, and on Tuesday the DOJ charged two Chinese hackers for hacking what Politico called “hundreds of millions of dollars worth of intellectual property and trade secrets” about vaccines for a deadly virus that is currently ravaging humanity.

Right now the world is working on a lot of vaccines, as well as treatments, for and research about the virus. We’re not just trying to end it, we’re trying to pull the virus, and ourselves, out of the fog of war that we’re in right now. Some of that research is ending up as trade secrets and intellectual property, the modern legal equivalent of what was once the secrecy of alchemists.

Russia and China are not rich countries the way the US is, though they are spending their blood and treasure on medical research and treatment just like the rest of us. Journalists and experts, particularly in cybersecurity, have blasted their efforts at hacking European and North American corporations as a kind of greed and cheating when it comes to the vaccines research process.

This all makes sense, from the perspective of the absurdity of the present moment. As Misha Glenny, a cybersecurity reporter who went on the BBC’s Newscast to blast the Russian effort to get medical research data said, “They’re just trying to get a vaccine on the cheap as far as I can see.”

Of course they are. It’s a fucking vaccine for a disease that’s causing a global pandemic.

Before we talk about how important it is to motivate biotech firm Moderna to work on a medicine that could save millions and put the planet to rights again (at least in this one way), let’s talk about where we are right now.

As of this writing, there have been 15 million confirmed cases of Covid-19 and 600,000 deaths. It’s clear there will be millions of deaths before the pandemic is over and millions more maimed from the inside by the disease. There is also the suffering of families and communities as folks bury some of their loved ones and support loved ones who will suffer with the long term effects of Covid-19 for years or decades. There is no global public health infrastructure or even much in the way of public health standards around the world.

Most people can’t get good quality care at the best of times, even though we have the ability as a species to provide it several times over. It’s normally bad and it’s all much worse right now. Pediatric vaccination rates has fallen through the floor the world over, and it could be that millions more children die of preventable diseases than adults of Covid-19, just because Covid-19 has wrecked public health infrastructure so badly. And with economic downturns around the world, there’s no money to pay for routine care which could cost more lives than the disease itself, again.

But there’s reasons things are shut down. The thing about a respiratory virus like SARS-CoV-2 is that it’s so aggressively transmissible that no one is safe until everyone is safe. Despite how much we all hate each other, if Russian and Chinese people can’t vaccinate against both Covid-19 and Measles, we will all pay, in blood, and treasure, and the kind of grief that takes generations to mend.

Will those generations care about Moderna, GlaxoSmithKline, or Sanofi’s Q4 2020?

No, they will not care. They will be as mystified by what we’re doing now, by what we’re valuing now, as we are by the people in history who drank mercury trying to live forever, or attached leeches to George Washington until he died of blood loss, or any of the other stupid things we did that killed people or actively spread disease over the millennia.

We still live with the biological and cultural trauma of the Black Death, and our whole world order was configured by Smallpox. But still, we are ghouls and deatheaters, asking about intellectual property rights when someone is using hacking to try to save lives, for once.

Why is any of this, any of this at all, still a secret? Why isn’t all the data and research being published and collated and poured through by the scientific community the moment the data is collected? Why are we still such ghouls when it comes to public health?

Why do children still die of Measles? Why do 10 million people fall ill with TB every year? Why, in fucking 2020, do people die of fucking Consumption?

We could stop all of this.

But we think health should be a profitable business, like it’s making fancy handbags or golf clubs or something.

We don’t think voting is something you should pay for, or that only the well enough off should be governed. We don’t think streets should turn a profit, or that you should pay a monthly fee to maintain your human rights. We don’t even think you should pay firefighters to save your house, especially since it’s going to set the rest of your city on fire. But we think Chinese people or Russians or you should pay for a vaccine, even though if you can’t, it’s going to set the rest of your city and then the world on fire.

It’s evil, it’s madness, and the fact that it’s just the way things are doesn’t make it even the tiniest bit less absurd. And my colleagues in the media would do well to point that out, and not just leave it to comment sections below their articles and Trevor Noah.

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

 

 

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Earlier This Year, Billy Barr Minimized Threats of Violence against Judges

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Billy Barr lies, a lot.

One of the things he has lied about — first anonymously to irresponsible beat reporters and then repeatedly on the record — is that Amy Berman Jackson agreed with his sentencing recommendation in the Roger Stone case. To Steve Inskeep, for example, Barr first lied by hiding that he created a dispute by replacing Jesse Liu with his crony Timothy Shea  so Shea could start disagreeing with prosecutors.

I was the decision maker in that case because there was a dispute. And usually what happens is, disputes, especially in high profile cases, come up to the attorney general. It’s not unusual for there to be a dispute in a high-profile case and for it to be resolved by the attorney general. And what actually happened in that case is that the four prosecutors who had prosecuted the case, the first line, they wanted to recommend a seven to nine year sentence on Stone, and the U.S. attorney felt that was too severe and was not justified under the circumstances.

Barr then claimed that all he did, in replacing the sentencing memo written by prosecutors adhering to DOJ guidelines on calling for the maximum sentence with one calling for far less, was to lay out the relevant information and let Amy Berman Jackson decide.

And what I said was set forth all the relevant information and leave it to the judge’s discretion to select the right decision, which is also not uncommon in the department. And that judge actually gave the sentence that I thought was correct, which was half of what the line prosecutors were recommending. They could not point to any case even remotely close to the seven to nine year sentence. The cases were essentially centered on about two and a half to three years. The judge gave him three years and four months, which I thought was a fair sentence under the circumstances. And it was essentially what I was proposing, or thought was fair. And so the proof of the pudding is in the eating. I made that decision based on what I was felt was fair to that person.

Aaron Zelinsky has made it clear that, in fact, even in the first memo, prosecutors were ordered to downplay certain information.

The more important detail — given that an anti-feminist Trump supporter allegedly targeted the family of federal judge Esther Salas, killing her son and also shooting her spouse — is how he overrode the sentencing recommendation of prosecutors.

As I laid out in this post, prosecutors asked for the following enhancements:

  • 8 levels for the physical threats against Randy Credico
  • 3 levels for substantial interference
  • 2 levels for the substantial scope of the interference
  • 2 levels for obstructing the administration of justice

The last of these, per the original sentencing memo, had to do with Stone’s threats against ABJ.

Finally, pursuant to U.S.S.G. § 3C1.1, two levels are added because the defendant “willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the prosecution of the instant offense of conviction.” Shortly after the case was indicted, Stone posted an image of the presiding judge with a crosshair next to her head. In a hearing to address, among other things, Stone’s ongoing pretrial release, Stone gave sworn testimony about this matter that was not credible. Stone then repeatedly violated a more specific court order by posting messages on social media about matters related to the case.

This enhancement is warranted based on that conduct. See U.S.S.G. § 3C1.C Cmt. 4(F) (“providing materially false information to a magistrate or judge”); see, e.g., United States v. Lassequ, 806 F.3d 618, 625 (1st Cir. 2015) (“Providing false information to a judge in the course of a bail hearing can serve as a basis for the obstruction of justice enhancement.”); United States v. Jones, 911 F. Supp. 54 (S.D.N.Y. 1996) (applying §3C1.1 enhancement to a defendant who submitted false information at hearing on modifying defendant’s conditions of release).

Barr’s memo got to the outcome he wanted by eliminating the 8-point enhancement for physically threatening Credico and the 2-point enhancement for threatening ABJ.

The memo suggested the 8-level enhancement shouldn’t apply, first, because doing so would double Stone’s exposure.

Notably, however, the Sentencing Guidelines enhancements in this case—while perhaps technically applicable— more than double the defendant’s total offense level and, as a result, disproportionately escalate the defendant’s sentencing exposure to an offense level of 29, which typically applies in cases involving violent offenses, such as armed robbery, not obstruction cases. Cf. U.S.S.G. § 2B3.1(a)-(b). As explained below, removing these enhancements would have a significant effect on the defendant’s Guidelines range. For example, if the Court were not to apply the eight-level enhancement for threatening a witness with physical injury, it would result in the defendant receiving an advisory Guidelines range of 37 to 46 months, which as explained below is more in line with the typical sentences imposed in obstruction cases.

[snip]

Then, Barr’s memo argued (and this is the truly outrageous argument) that Stone’s attempts to obstruct his own prosecution overlapped with his efforts to obstruct the HPSCI investigation.

Second, the two-level enhancement for obstruction of justice (§ 3C1.1) overlaps to a degree with the offense conduct in this case. Moreover, it is unclear to what extent the [defendant’s obstructive conduct actually prejudiced the government at trial.]

Effectively, this language treated threats against a judge as unworthy of enhancement.

The Attorney General of the United States found a way to go easy on the President’s life-long rat-fucker by downplaying the importance of threats against those participating in trials.

ABJ disagreed with both of those changes (though she did rule against the government’s enhancement on scope), taking Credico’s letter asking for leniency into account but also noting that in his grand jury testimony Credico had described being genuinely fearful of Stone’s thuggish buddies, and insisting on the import of the threat against her.

She got to close to the same conclusion as Barr, however, because she believes that sentencing recommendations are too harsh.

On one side, Barr dismissed the import of physical threats against a witness and a judge (while otherwise backing harsh sentencing). On the other side, ABJ insisted in the import of threats to participants in the judicial system, while finding sentencing recommendations generally too harsh.

ABJ in no way agreed with Barr’s logic, in part because she felt it important to punish threats against judges. Barr, however, thought it more important to go easy on Trump’s rat-fucker than reinforce the danger of threats to judges.

Then Trump commuted Stone’s sentence, showing that he doesn’t much give a damn if people threaten witnesses and judges either (unsurprisingly, because he does so much of it himself).

In the wake of the attack on Salas, Barr has taken to the press, proclaiming how serious he thinks such attacks to be.

U.S. Attorney General Bill Barr also offered his condolences to Judge Salas and her family.

“This kind of lawless, evil action carried out against a member of the federal judiciary will not be tolerated, and I have ordered the full resources of the FBI and U.S. Marshals Service to investigate the matter,” Barr said in a statement.

Bullshit.

You don’t get to proclaim how serious you think attacks on judges are if earlier this year you took extraordinary measures to minimize threats on a judge. The actions Barr and Trump took earlier this year sent the message that it doesn’t much matter if someone undermines the entire judicial system by intimidating judges and witnesses — particularly if they’re supporters of Trump.

Billy Barr wants you think he’s a hard ass on such violence. But earlier this year, he took unprecedented action to dismiss the import of violence against judges. No credible journalist should print his statements without explaining that Barr is part of the problem.

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