Thoughts on the NYT Comey Blockbuster

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The NYT has a big piece on Jim Comey’s involvement in the election you should definitely read. Rather than share my thoughts in a tweet storm I thought I’d share here so we can all gab about it.

Consensus coming closer to Jim Comey being self-righteous

As long time readers know, I think Jim Comey is self-righteous. He creates a heroic self-image that is often overblown (as it was regarding the post hospital hero events). So I was happy to see this paragraph — and observations matching it — through out the story.

Mr. Comey made those decisions with the supreme self-confidence of a former prosecutor who, in a distinguished career, has cultivated a reputation for what supporters see as fierce independence, and detractors view as media-savvy arrogance.

Comey deserves all the criticism he has gotten for his statements about the Hillary investigation. But we’re stuck with Comey for now; he’s one of the few checks against Trump’s arbitrary rule (and Comey is enough of a media hound to be able to create the space to conduct the investigation into Trump).

But one way or another I’m happy people are beginning to understand Comey not as the hospital hero, nor as a partisan, but as someone who doesn’t (or didn’t?) assess his own actions with a fair measure.

The secret David Margolis meeting

One of two really interesting new details in this story is that, when Comey was trying to decide what to do, he consulted with David Margolis, who has long been treated as the conscience of DOJ by DOJers. (See this bmaz post for more background on Margolis.)

Mr. Comey sought advice from someone he has trusted for many years. He dispatched his deputy to meet with David Margolis, who had served at the Justice Department since the Johnson administration and who, at 76, was dubbed the Yoda of the department.

What exactly was said is not known. Mr. Margolis died of heart problems a few months later. But some time after that meeting, Mr. Comey began talking to his advisers about announcing the end of the Clinton investigation himself, according to a former official.

This meeting (and the description of how they staged Margolis’ funeral so the DOJ people criticizing Comey wouldn’t have to share a stage with him) plays a weird role in the story, as if just the mention of the meeting serves to exonerate Comey’s terrible decision to announce the end of the Hillary investigation.

But what the story doesn’t note is that Comey was effectively consulting with the person who for years always intervened to make sure DOJ’s lawyers don’t get held accountable for their misconduct (most notably, he did this for John Yoo). Now, I’m not sure whether as FBI Director Comey’s behavior might have been reviewed by the Office of Professional Responsibility; as it happens DOJ IG is doing so. But it is not ethical to have the guy who, later on, would bless your actions, bless them before the fact. It’s like getting pre-approval to break the rules.

Loretta Lynch should have recused

One of the details others find most interesting is that the FBI acted as they did, in part, because a Democratic operative suggested in an email that Loretta Lynch would ensure nothing came of the investigation.

During Russia’s hacking campaign against the United States, intelligence agencies could peer, at times, into Russian networks and see what had been taken. Early last year, F.B.I. agents received a batch of hacked documents, and one caught their attention.

The document, which has been described as both a memo and an email, was written by a Democratic operative who expressed confidence that Ms. Lynch would keep the Clinton investigation from going too far, according to several former officials familiar with the document.

Read one way, it was standard Washington political chatter. Read another way, it suggested that a political operative might have insight into Ms. Lynch’s thinking.

Normally, when the F.B.I. recommends closing a case, the Justice Department agrees and nobody says anything. The consensus in both places was that the typical procedure would not suffice in this instance, but who would be the spokesman?

The document complicated that calculation, according to officials. If Ms. Lynch announced that the case was closed, and Russia leaked the document, Mr. Comey believed it would raise doubts about the independence of the investigation.

I’ve got a slew of hacking related questions about this document — starting with why it hasn’t, as far as I know, been leaked. The described timing as “early last year” suggests that it may have been hacked in the FSB phase of the hacking. But the document would have solidified the narrative the Russians were reportedly fostering about Hillary.

The article doesn’t pursue those questions, but it notes that in response to finding it, Comey did not ask Lynch to recuse. He should have. You recuse whether or not there’s basis for recusal but because of appearances as well. Moreover, so much awfulness could have been avoided had she recused. This was one of the big own goals of this whole mess.

CIA Directors should not meet with just one Gang of Eight member

The second detail I find most interesting in this story is that John Brennan privately briefed Harry Reid about his concerns about the Russians.

John O. Brennan, the C.I.A. director, was so concerned about the Russian threat that he gave an unusual private briefing in the late summer to Harry Reid, then the Senate Democratic leader.

Top congressional officials had already received briefings on Russia’s meddling, but the one for Mr. Reid appears to have gone further. In a public letter to Mr. Comey several weeks later, Mr. Reid said that “it has become clear that you possess explosive information about close ties and coordination between Donald Trump, his top advisors, and the Russian government — a foreign interest openly hostile to the United States.”

While I’m generally sympathetic to Democrats’ complaints that DOJ should have either remained silent about both investigations or revealed both of them, it was stupid for Brennan to give this private briefing (and I hope he gets grilled about it by HPSCI when he testifies in a few weeks). In addition to the things Reid said publicly about the investigation, it’s fairly clear he and his staffers were also behind some of the key leaks here (and, as CNN reported yesterday, leaks about the investigation actually led targets of it to alter their behavior). For reasons beyond what appears in this story, I think it likely Reid served as a cut-out for Brennan.

And that’s simply not appropriate. There may well have been reasons to avoid briefing Richard Burr (who was advising Trump). But spooks should not be sharing information with just one party. CIA did so during its torture cover-up in ways that are particularly troubling and I find this — while not as bad — equally problematic.

Two missing details: the leaks and the delayed notice to Congress

While this is already a comprehensive story (though its telling of October 7 omits key details), there are two parts that seem critical that are missing: the flood of leaks from FBI and the decision to delay notifying the Gang of Four of the CI investigation.

This week, CNN reported that the FBI was “clarifying” an earlier policy fostering more contact between FBI employees with the media in response to leaks about the Trump campaign. (Click through to read about the TV series coming out focusing on FBI heroism that the FBI exercised editorial control over!!!)

The FBI is overhauling its media policy, restricting contacts between the news media and its employees amid controversy over alleged leaks, bureau officials told CNN.

The new media policy was rolled out this week at a conference in Washington attended by FBI special agents in charge of its 56 field offices, according to officials who attended.
Media access to top officials at the FBI became more common in recent years under FBI Director James Comey, part of a transparency effort he said was aiming at demystifying the FBI and helping the public understand its mission. But the new policy appears to curtail that access.
An official familiar with the development of the new policy described it as largely a “clarification” intended to reinforce existing rules on who is authorized to talk to reporters, not a step back from Comey’s transparency initiatives.

Not only should this policy have been put in place before people leaked details of FISA orders, but it should have been put in place in early 2016, when it was clear FBI Agents were leaking details of the Hillary investigation to try to force their supervisors to expand its scope to include the Clinton Foundation.

Instead, the possibility that FBI Agents would leak was one of the reasons why Comey did what he did. The correct thing, instead of making unprecedented public statements as he did, would have been to shut down the leaking.

Additionally, according to Comey’s testimony, FBI actually delayed notifying at least the heads of the Intelligence Committees  until fairly recently. The NYT acknowledges that this detail was hidden. But I’d love to understand how this departure from normal briefing affected all the other decisions (particularly in light of the the Brennan meeting).

In any case, read the whole thing. It’s very frustrating. But it also lays out a series of things that Comey — and other Obama officials — should have done differently.

Last Fall’s Efforts against Russia: Influence versus Tamper

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NYT has a story — citing “former government officials” and eventually citing Harry Reid — that’s attracting a lot of attention. It explains the CIA had evidence in August that Russia was affirmatively trying to elect Trump, rather than just hurt Hillary.

In an Aug. 25 briefing for Harry Reid, then the top Democrat in the Senate, Mr. Brennan indicated that Russia’s hackings appeared aimed at helping Mr. Trump win the November election, according to two former officials with knowledge of the briefing.

The officials said Mr. Brennan also indicated that unnamed advisers to Mr. Trump might be working with the Russians to interfere in the election. The F.B.I. and two congressional committees are now investigating that claim, focusing on possible communications and financial dealings between Russian affiliates and a handful of former advisers to Mr. Trump. So far, no proof of collusion has emerged publicly.

[snip]

In the August briefing for Mr. Reid, the two former officials said, Mr. Brennan indicated that the C.I.A., focused on foreign intelligence, was limited in its legal ability to investigate possible connections to Mr. Trump. The officials said Mr. Brennan told Mr. Reid that the F.B.I., in charge of domestic intelligence, would have to lead the way.

Given Jim Comey’s description of the FBI assessment Russia wanted to elect Trump — which he described as an “enemy of my enemy” approach, rooting against the Pats at all times because he’s a Giants fan — and given the NSA’s continued moderate confidence in this claim, I don’t make too much of the CIA claim. Furthermore, given Roger Stone’s public exchanges with Guccifer 2 in the weeks leading up to this briefing (and CIA’s purported prohibition on involvement in domestic affairs), I also don’t put too much stock in CIA’s evidence of Russian coordination. In precisely this period, after all, Brennan continued to publicly brief that Putin was out of his depth, which seemed then and seems even more now to underestimate Putin’s ability to play the United States.

The line about Brennan saying FBI would have to investigate the ties between Trump and Putin also reminds me of the recent complaint, laundered through BBC’s Paul Wood, that FBI is fucking up the investigation and CIA should take the lead.

The rest of the article includes partisan details that have attracted a lot of attention but that — in light of this Lisa Monaco interview — seem to miss some distinction. The NYT describes a conflict between a bipartisan statement about the integrity of the election and a more assertive statement implicating Russia with influencing the outcome of the election.

In the briefings, the C.I.A. said there was intelligence indicating not only that the Russians were trying to get Mr. Trump elected but that they had gained computer access to multiple state and local election boards in the United States since 2014, officials said.

Although the breached systems were not involved in actual vote-tallying operations, Obama administration officials proposed that the eight senior lawmakers write a letter to state election officials warning them of the possible threat posed by Russian hacking, officials said.

But Senator Mitch McConnell of Kentucky, the Republican majority leader, resisted, questioning the underpinnings of the intelligence, according to officials with knowledge of the discussions. Mr. McConnell ultimately agreed to a softer version of the letter, which did not mention the Russians but warned of unnamed “malefactors” who might seek to disrupt the elections through online intrusion. The letter, dated Sept. 28, was signed by Mr. McConnell, Mr. Reid, Speaker Paul D. Ryan and Representative Nancy Pelosi, the ranking Democrat.

On Sept. 22, two other members of the Gang of Eight — Senator Dianne Feinstein and Representative Adam B. Schiff, both of California and the ranking Democrats on the Senate and House intelligence committees — released their own statement about the Russian interference that did not mention Mr. Trump or his campaign by name.

Here’s the full statement from Feinstein and Schiff:

Based on briefings we have received, we have concluded that the Russian intelligence agencies are making a serious and concerted effort to influence the U.S. election.

At the least, this effort is intended to sow doubt about the security of our election and may well be intended to influence the outcomes of the election—we can see no other rationale for the behavior of the Russians.

We believe that orders for the Russian intelligence agencies to conduct such actions could come only from very senior levels of the Russian government.

We call on President Putin to immediately order a halt to this activity. Americans will not stand for any foreign government trying to influence our election. We hope all Americans will stand together and reject the Russian effort.

Note the difference in emphasis: the letter from Congressional leaders emphasizes voting apparatus. Also note (and I suspect this is far more important than any report has yet made out) the letter Mitch McConnell was willing to sign states clearly that voting systems are not being designated critical infrastructure (which Jeh Johnson tried to do in early January, to much resistance from the states).

We urge the states to take full advantage of the robust public and private sector resources available to them to ensure that their network is secure from attack. In addition, the Department of Homeland Security stands ready to provide cybersecurity assistance to those states that choose to request it. Such assistance does not entail federal regulation or binding federal directives of any kind, and we would oppose any effort by the federal government to exercise any degree of control over the states’ administration of elections by designating these systems as critical infrastructure.

In other words, the Democrats wanted this to be about Russian influence, whereas the government was primarily worried about Russia affecting the outcome of the election at the polls.

Here’s how Monaco described the effort, which she describes as largely successful.

[M]y own view on that is we did not want to do anything to do the Russians’ work for them by engaging in partisan discussion about this, which is why we were so intent upon getting bipartisan support, and ultimately, we did so from the House and Senate leadership, in trying to get the state and local governments to work with us to shore up their cybersecurity.

We made a specific effort to go to Congress, to say we want bipartisan support for state governments to take us up on our offer to shore up their cybersecurity in their election systems, because there was a tremendous amount of resistance. This is an election year, I think there was a view that we—if we came to state and municipal governments and said, “We want to help you shore up your cybersecurity for your election system,” they viewed it as a big federal takeover.

We really needed bipartisan support for the efforts we were making, largely out of the Department of Homeland Security. Ultimately, that turned out to be a smart way of doing business, and we ended up having 48 of 50 states take us up on our offer, but we needed bipartisan support to do it. Ultimately, that turned out to be a smart way of doing business, and we ended up having 48 of 50 states take us up on our offer, but we needed bipartisan support to do it.

For Monaco, the effort was entirely about convincing states to accept help from DHS to ensure the machines counting the vote would not be compromised in a way that would affect the vote, not about the theft of emails from the DNC.

Incidentally, one of the two states that refused DHS help was Georgia, which of course is conducting an election to replace Tom Price as we speak, and which accused DHS of trying to hack its systems in the weeks after the election.

Two more comments on this. First, Mitch McConnell appears to have been in the right on this. Public discussion of the probes at the time noted that such hacks had happened in the past and generally sought credentials, not voting information. DHS released a warning on the polling probes on September 20, a week before the Leaders’ statement was released, and it still discussed the probes in terms of stealing PII.

(U//FOUO) DHS has no indication that adversaries or criminals are planning cyber operations against US election infrastructure that would change the outcome of the coming US election. Multiple checks and redundancies in US election infrastructure—including diversity of systems, non-Internet connected voting machines, pre-election testing, and processes for media, campaign, and election officials to check, audit, and validate results—make it likely that cyber manipulation of US election systems intended to change the outcome of a national election would be detected.

(U//FOUO) We judge cybercriminals and criminal hackers are likely to continue to target personally identifiable information (PII), such as that available in voter registration databases. We have no indication, however, that criminals are planning theft of voter information to disrupt or alter US computer-enabled election infrastructure.

And the October 7 joint DHS/ODNI statement –released after the Leaders’ statement — still stopped short of blaming Russia for those probes.

Some states have also recently seen scanning and probing of their election-related systems, which in most cases originated from servers operated by a Russian company. However, we are not now in a position to attribute this activity to the Russian Government.

In other words, McConnell’s resistance to blaming Russia in that September 28 letter was completely consistent with the public intelligence at the time.

Finally, now how the role of Richard Burr and Devin Nunes always gets glossed over in these descriptions? I get that people want to blame Mitch for refusing to take a tougher line. But what were Trump’s campaign surrogates doing at the time?

Raw Versus Cooked: Could NSC Monitor FBI’s Investigation?

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Multiple people,including Bart Gellman and Josh Marshall, are now arguing that the reason Ezra Cohen-Watnick and Michael Ellis found intercepts involving Trump’s people is that they were monitoring FBI’s investigation of the investigation.

I certainly think the Trump people would like to do that — and would be willing to stoop to that. I even believe that the response to the Russian hack last year had some counterintelligence problems, though probably not on the FBI side.

But there are some details that may limit how much the NSC can monitor the investigation.

First, Devin Nunes has always been very clear: the intercepts he was shown have nothing to do with Russia. That’s not, itself, determinative. After all, Cohen-Watnick and Ellis might have found a bunch of Russian intercepts, but only shared the non-Russian ones so Nunes could make a stink without being accused of endangering the investigation. Also, it’s possible that intercepts involving other countries — most notably Turkey, but there are other countries that might be even more interesting, including Ukraine or Syria — would impact any Russian investigation.

Also note that among the many things Nunes appears not to understand about surveillance is that there are two ways an American’s name can be visible outside the circle of analysts doing the initial review of them: their names can be put into finished intelligence reports that get circulated more broadly, with customers asking to have the name unmasked after the fact. Alternately, their names can be found off of subsequent searches of raw data. At the NSA and CIA, searches for US person content are somewhat controlled. At FBI they are not only not controlled, but they are routine even for criminal investigations. So if, say, General Flynn (or Paul Manafort) were under investigation for failing to register as a foreign agent, the FBI would routinely search their database of raw FISA material on his name. (These are the “back door searches” Ron Wyden has been screaming about for years, concerns which people like Devin Nunes have previously dismissed on national security grounds.) And we have every reason to believe that counterintelligence intercepts of Russians in the US are among the raw feeds that the FBI gets. So if Flynn had conversations with Russians (or Turks) in the US, we should assume that FBI saw them as a routine matter if Flynn became the subject of an investigation at all. We should also assume that the FBI did a search on every Sergey Kislyak intercept in their possession, so they will have read everything that got picked up, including all recorded calls with Trump aides.

On March 15, the House Intelligence Committee asked the NSA, CIA, and FBI for information on unmasking. I don’t believe that request asked about access to US person names on subsequent searches or raw material. Furthermore, at least as of last week, the FBI was not rushing to comply with that request. As I noted after the Jim Comey hearing before HPSCI, none of the Republicans concerned about these issues seemed to have any basic clue about FBI’s searches on raw data. If Nunes doesn’t know (and he appears not to), it’s unlikely Ellis knows, who was until this month Nunes’ aide.

But there’s one other thing that may prevent NSC from obtaining information about the investigation: FBI sometimes uses what are called “ad hoc databases” that include raw FISA data (and probably, post EO 12333 sharing rule changes, raw EO 12333 data) tied to particular investigations. It’s unclear what conditions might necessitate the use of an ad hoc database (see page 25ff for a discussion of them), but if security concerns would encourage their use, it would be likely to have one here, an investigation which Comey described as being so sensitive he delayed briefing the Gang of Four. Ad hoc databases are restricted to those working on investigations, and include specific records of those authorized to access the database. So if FBI were using an ad hoc database for this investigation, it would be even harder for the NSC to learn what they were looking at.

If the FBI’s investigation relies on raw intelligence — and it would be unfathomable that it does not, because it would probably receive the raw FISA data tied to such an investigation routinely, and EO 12333 sharing rules specifically envision the sharing of raw data associated with counterintelligence investigations — then the NSC’s access to finished intelligence reports would provide little insight into the investigation (Nunes was a bit unclear on whether that’s what he was looking at, but the entire premise of his complaints is that these were finished reports).

But while we’re worrying about whether and how Trump would monitor an investigation into his aides, remember that in 2002, Jay Bybee wrote a memo authorizing the sharing of grand jury information with the President and his close advisors including for counterintelligence investigations.

In addition, the Patriot Act recently amended 6(e) and Title III specifically to provide that matters involving foreign intelligence or counterintelligence or foreign intelligence information may be disclosed by any attorney for the government (and in the case of Title III, also by an investigative or law enforcement officer) to certain federal officials in order to assist those officials in carrying out their duties. Federal officials who are included within these provisions may include, for example, the President, attorneys within the White House Counsel’s Office, the President’s Chief of Staff, the National Security Advisor, and officials within the Central Intelligence Agency and the Department of Defense.

[snip]

Although the new provision in Rule 6(e) permitting disclosure also requires that any disclosures be reported to the district court responsible for supervising the grand jury, we conclude that disclosures made to the President fall outside the scope of the reporting requirement contained in that amendment, as do related subsequent disclosures made to other officials on the President’s behalf.

In other words, Trump could demand that he — or his National Security Advisor! — get information on any grand jury investigations, including those covering counterintelligence cases. And no judge would be given notice of that.

With Jeff Sessions’ recusal, that’s far less likely to happen than it might have been. But understand that the Executive Branch believes that the President can learn about the happenings in grand jury investigations of the sort that might target his aides.

Update: additional details have been added to this post after it was first posted.

Did Trump Just Confirm He Hid Sally Yates’ Warning from Mike Pence?

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The WaPo has another big story, this one reporting that the Trump Administration attempted to prevent Sally Yates from testifying about her warnings to the Trump Administration that Mike Flynn had had conversations about sanctions with Russian Ambassador Sergey Kislyak.

Scott Schools, another Justice Department official, replied in a letter the following day, saying the conversations with the White House “are likely covered by the presidential communications privilege and possibly the deliberative process privilege. The president owns those privileges. Therefore, to the extent Ms. Yates needs consent to disclose the details of those communications to [the intelligence panel], she needs to consult with the White House. She need not obtain separate consent from the department.’’

Yates’s attorney then sent a letter Friday to McGahn, the White House lawyer, saying that any claim of privilege “has been waived as a result of the multiple public comments of current senior White House officials describing the January 2017 communications. Nevertheless, I am advising the White House of Ms. Yates’ intention to provide information.’’

That same day, Nunes, the panel’s chairman, said he would not go forward with the public hearing that was to feature Yates’s testimony.

In response to the story, Adam Schiff suggested Yates might have testified about why Trump waited before firing Flynn.

[W]e would urge that the open hearing be rescheduled without further delay and that Ms. Yates be permitted to testify freely and openly so that the public may understand, among other matters, when the President was informed that his national security advisor had misled the Vice President and through him, the country, and why the President waited as long as he did to fire Mr. Flynn.

According to the WaPo, Yates informed Don McGahn that Flynn was lying about his calls, making him susceptible to blackmail, on January 26. She was fired on January 31. Flynn tried to lie about the conversation again on February 8. Then, as the WaPo was reporting this story, he altered his story. Nevertheless, it wasn’t until the WaPo reported on Yates’ warning, on February 13, that Trump forced Flynn to resign.

Two days after Yates’ warning, January 28, Trump spent an hour on the phone with Vladimir Putin, with Flynn (and Pence) in attendance.

So one of the things that Trump enabled by stalling on his response to Sally Yates was that phone call.

In any case, the claim that Yates’ conversations with McGahn should be covered by Executive Privilege is a stretch. Just by way of precedent, in 2007, Jim Comey testified about his conversations with White House Counsel Alberto Gonzales while serving as Acting Attorney General.

That is, Yates’ conversation should not be covered by Executive Privilege unless Trump is claiming he was involved in hiding this information from Mike Pence.

FBI Is Examining Possible Coordination with Russia, Not Collusion

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Jim Comey’s statement confirming an investigation including the Trump campaign on Monday said the following:

I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election, and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed. [my emphasis]

In spite of that careful, pre-approved word choice, “coordination,” members of Congress in the hearing, as well as the press both before and after the hearing, have used the term “collusion.”

But Comey made it clear much later in the hearing that the term coordination was deliberate. Mike Quigley asked for more details about how the FBI might find collusion with a foreign power. Comey corrected him, stating that he was investigating whether there had been coordination.

Collusion is not a legal term. It is not one I have used today. I said we are investigating to see if there is any coordination between people associated with the campaign–

I think — though the lawyers should correct me if I’m wrong — this suggests the FBI is thinking in terms of conspiracy.

That, along with Comey’s focus on knowing coordination, may put things like Roger Stone’s interactions in the limelight — though the case that Guccifer 2.0 is a Russian cut-out is and always has been one of the weakest parts of the public case against Russia, and even top intelligence community people stop short of calling Wikileaks a Russian cut-out (meaning Stone would be able to deny knowingly working with Russians).

It does, however, put the events surrounding the release of Podesta’s emails on October 7 in interesting light, though the lefty case on that is neither the best case for that period, nor does it account for all the details that would be of interest.

FBI Delayed Telling the Gang of Four about Trump-Related Investigation Because It Is So Serious

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As every newspaper in town has reported, at today’s hearing into Russia’s hack of the DNC, Jim Comey confirmed that the FBI has a counterintelligence investigation into the hack that includes whether Trump’s associates coordinated with Russian actors. Along the way, Comey refused to join in James Clapper’s statement that there was no evidence of collusion between Trump’s aides and Russia. When the now retired Director of National Intelligence said that, Clapper had emphasized that his statement only extended through the end of his service, January 20; he warned that some evidence may have been discovered after that.

A far more telling detail came close to the end of the hearing, during NY Congresswoman Elise Stefanik’s questioning. She started by asking what typical protocols were for informing the DNI, the White House, and senior Congressional leadership about counterintelligence investigations.

Stefanik: My first set of questions are directed at Director Comey. Broadly, when the FBI has any open counterintelligence investigation, what are the typical protocols or procedures for notifying the DNI, the White House, and senior congressional leadership?

Comey: There is a practice of a quarterly briefing on sensitive cases to the Chair and Ranking of the House and Senate Intelligence Committees. The reason I hesitate is, thanks to feedback we’ve gotten, we’re trying to make it better. And that involves a briefing briefing the Department of Justice, I believe the DNI, and the — some portion of the National Security Council at the White House. We brief them before Congress is briefed.

Stefanik: So it’s quarterly for all three, then, senior congressional leadership, the White House, and the DNI?

Comey: I think that’s right. Now that’s by practice, not by rule or by written policy. Which is why, thanks to the Chair and Ranking giving us feedback, we’re trying to tweak it in certain ways.

Note that point: the practice has been that FBI won’t brief the Gang of Four until after they’ve briefed DOJ, the DNI, and the White House. Stefanik goes on to ask why, if FBI normally briefs CI investigations quarterly, why FBI didn’t brief the Gang of Four before the last month, at least seven months after the investigation started. Comey explains they delayed because of the sensitivity of the investigation.

Stefanik: So since in your opening statement you confirmed that there is a counterintelligence investigation currently open and you also referenced that it started in July, when did  you notify the DNI, the White House, or senior Congressional leadership?

Comey: Congressional leadership, sometime recently — they were briefed on the nature of the investigation and some details, as I said. Obviously the Department of Justice must have been aware of it all along. The DNI … I don’t know what the DNI’s knowledge of it was, because we didn’t have a DNI until Mr. Coats took office and I briefed him his first morning in office.

Stefanik: So just to drill down on this, if the open investigation began in July, and the briefing of Congressional leadership only occurred recently, why was there no notification prior to the recent — the past month.

Comey: I think our decision was it was a matter of such sensitivity that we wouldn’t include it in the quarterly briefings.

Stefanik: So when you state “our decision,” is that your decision, is it usually your decision what gets briefed in those quarterly updates?

Comey: No. It’s usually the decision of the head of our counterintelligence division.

Stefanik: And just again, to get the details on the record, why was the decision not to brief senior congressional leadership until recently, when the investigation had been open since July, a very serious investigation. Why was that decision made to wait months?

Comey: Because of the sensitivity of the matter.

Stefanik then got Comey to reconfirm what the IC report says: that Russia had hacked numerous entities, he would later say over a thousand, including Republican targets.

Stefanik then turned to the Yahoo investigation. She asked whether the FSB officers involved conducted the hack for intelligence purposes — a question Comey refused to answer. He also refused to answer what the FSB did with the information stolen.

Stefanik: Taking a further step back of what’s been in the news recently and I’m referring to the Yahoo hack, the Yahoo data breach, last week the Department of Justice announced it was charging hackers with ties to the FSB in the 2014 data breach. Was this hack done, to your knowledge, for intelligence purposes?

Comey: I can’t say in this forum.

Stefanik: Press reporting indicates the Yahoo hack targeted journalists, dissidents and government officials. Do you know what the FSB did with the information they obtained?

Comey: Same answer.

Stefanik: Okay, I understand that.

This is important for a number of reasons, including the evidence that the FSB was hiding their hacking from others in Russia.

Stefanik then turned to the sanctions, asking if Comey had any insight into how the Obama Administration chose who got sanctioned in December — which included Alexsey Belan but not the FSB officers involved (one of whom, Dmitry Dokuchaev, was already under arrest for treason by the time of the sanctions).

Stefanik: How did the Administration determine who to sanction as part of the election hacking? How familiar are [] with that decision process and how is that determination made?

Comey: I don’t know. I’m not familiar with the decision-making process. The FBI is a factual input but I don’t recall — I don’t have any personal knowledge about how the decisions were made about who to sanction.

Again, her interest in this is significant — I’ll explain why in a follow-up.

Stefanik then asked what the intelligence agencies would do going forward to keep entities safe from Russian hacking. As part of the response, Mike Rogers revealed (unsurprisingly) that NSA first learned of FSB’s hacking of those many targets in the summer of 2015.

Finally, Stefanik returned to her original point, when Congress gets briefed on CI investigations. Comey’s response was remarkable.

Stefanik: It seems to me, in my first line of questioning, the more serious a counterintelligence investigation is, that would seem to trigger the need to update not just the White House, the DNI, but also senior congressional leadership. And you stated it was due to the severity. I think moving forward, it seems the most severe and serious investigations should be notified to senior congressional leadership. And with that thanks for your lenience, Mr. Chairman, I yield back.

Comey could have been done with Stefanik yielding back. But instead, he interrupted, and suggested part of the delay had to do with the practice of briefing within the Executive Branch NSC before briefing Congress.

Comey: That’s good feedback, Ms. Stefanik, the challenge for is, sometimes we want to keep it tight within the executive branch, and if we’re going to go brief congressional leaders, the practice has been then we brief inside the executive branch, and so we have to try to figure out how to navigate that in a good way.

Which seems to suggest one reason why the FBI delayed briefing the Gang of Four (presumably, this is the Gang of Eight) is because they couldn’t brief all Executive Branch people the White House, and so couldn’t brief Congress without first having briefed the White House.

Which would suggest Mike Flynn may be a very central figure in this investigation.

Update: I’ve corrected my last observation to match Comey’s testimony that the delay had to do with keeping things on a close hold within the Executive Branch. That may be nothing, it may reflect the delay on confirming Dan Coats, it may be Flynn (if you normally brief the NSC, after all the National Security Advisor would be among the first to be briefed), but it also could be Jeff Sessions.

Five Data Points on the Sessions News

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As you no doubt have heard, Jeff Sessions met twice with Russian Ambassador Sergey Kislyak last year, then told the Senate Judiciary Committee he had either not talked about the election with any Russians (a written response to Patrick Leahy’s question) or not talked with Russians as a surrogate of the campaign (an oral response to Al Franken).WSJ describes the probe as reviewing stuff in spring of last year, so before the July contact with Kislyak. Thus far, Sessions, his spox, and anonymous Trump official have offered three conflicting explanations for Sessions’ non-disclosure, including Sessions’ own, “I have no idea what this allegation is about. It is false.”

Already, Democrats are demanding Sessions’ resignation and more Democrats and some Republicans are calling for him to recuse himself for the FBI counterintelligence investigation. The Twittersphere is calling for prosecution for perjury.

Update: WSJ had originally said Sessions and Kislyak spoke by phone, then corrected to in-person. According to this, he had one of each, with a phone followup several days after the in-person. Which means there’d be a transcript.

Jeff Sessions will almost certainly not be prosecuted for perjury

Which brings me to my first data point. Jeff Sessions is not going to be prosecuted for perjury. And that’s true for more reasons than that he is the AG.

First, it’s a hard crime to prove, because you have to prove that someone knowingly lied. Right now Sessions is all over the map, but he’s also dumb enough to be able to feign stupidity.

Plus, lying to Congress just doesn’t get prosecuted anymore. Remember, Alberto Gonzales lied in his own confirmation hearing in 2005, claiming there were no disagreements about Stellar Wind. It was always clear that was a lie, but even after Jim Comey confirmed that was the case with his May 2007 SJC hospital heroes performance, AGAG stuck around for another three months. And while his lie has often been cited as the reason for his departure in August 2007, I believe that the proximate reason is that he refused to do something Bush wanted him to do, at which point the White House threw him under the bus.

Plus, there are already at least three Trump officials who lied in their confirmation hearings — Mnuchin on his role in robosigning, DeVos on her role in the Prince family foundation, and Pruitt on his use of private emails. None of them are going anywhere.

Finally, in 2013, Holder’s DOJ went way out of its way to protect former DOJ official Scott Bloch from doing time after he lied to the House Oversight Committee. That precedent will make it all the harder to hold anyone accountable for lying to Congress in the future.

The timing of this roll-out gets more and more interesting

Now consider the timing of how all this rolled out.

In another blockbuster (revealing that the Obama Administration squirreled away information on Trump’s advisors to protect informants IDs from him, but also to ensure incriminating information would be available for others), NYT reveals that, after Putin’s non-response to Obama’s December 28 sanctions raised concerns, the FBI found Mike Flynn’s contacts with Kislyak on January 2.

On Jan. 2, administration officials learned that Mr. Kislyak — after leaving the State Department meeting — called Mr. Flynn, and that the two talked multiple times in the 36 hours that followed. American intelligence agencies routinely wiretap the phones of Russian diplomats, and transcripts of the calls showed that Mr. Flynn urged the Russians not to respond, saying relations would improve once Mr. Trump was in office, according to multiple current and former officials.

On January 10, the Trump dossier began to leak. Al Franken actually used that as the premise to ask Sessions about contacts with the Russians.

On January 12, David Ignatius published the first word of the Flynn-Kislyak calls, alerting anyone dumb enough not to already know that the FBI was going through Kislyak’s ties with Trump officials.

This had the effect of teeing up Flynn as a target, without giving Sessions (and other Trump officials) that their contacts with Kislyak were being scrutinized. And only after Flynn’s departure has this Sessions stuff come out.

I imagine someone in the White House Counsel’s office is now reviewing all the metadata and transcripts tied to Kislyak to see who else had curious conversations with him.

The claim Kislyak is the top spy recruiter

CNN’s version of this story and a separate profile of Kislyak insinuates that Session’s contact with Kislyak by itself is damning, because he “is considered by US intelligence to be one of Russia’s top spies and spy-recruiters in Washington.”

Current and former US intelligence officials have described Kislyak as a top spy and recruiter of spies, a notion that Russian officials have dismissed. Kremlin spokesman Dmitri Peskov said that “nobody has heard a single statement from US intelligence agencies’ representatives regarding our ambassador,” and attacked the “depersonalized assumptions of the media that are constantly trying to blow this situation out of proportion.”

Even aside from the fact that two Democrats — Joe Manchin of his own accord, and Claire McCaskill after she claimed never to have spoken with Kislyak — have also had contact with him, this seems like a red herring. No matter what Kislyak’s intention, it is still acceptable for someone to meet with a person presenting as a diplomat (for example, no one used to care that Saudi Arabia’s Bandar bin Sultan was running ops when he was Ambassador to the US).

Moreover, if current and former US intelligence officials are so sure Kislyak is the master spook in the US, why wasn’t he at the top of the Persona Non Grata list of 35 diplomats who got ejected at the end of December (though, as I’ve noted in the past, the Russian press was talking about him being replaced).

The delayed preservation request

Yesterday, AP reported that Don McGahn instructed White House officials on Tuesday to retain information relating to Russian contacts.

One official said McGahn’s memo instructs White House staff to preserve material from Trump’s time in office, and for those who worked on the campaign, relevant material from the election.

But the timing of this actually raises more questions. Preservation requests first went out February 17. Reince Priebus admitted knowing about it on the Sunday shows February 19. Sometime during the week of February 20-24, Sean Spicer with Don McGahn conducted a device check with White House staffers to see whether staffers were using Signal or Confide, the latter of which automatically deletes texts, the former of which can be set to do so (after Spicer warned everyone not to leak about the device check, it leaked).

And yet, McGahn only gave preservation instructions on February 28?

Now it’s possible the White House didn’t receive one of the letters sent on February 17 (which would raise other questions), which seems to be the implication of the AP report. But if it did, then McGahn sat on that preservation request for over 10 days, even while being involved in activities reflecting an awareness that staffers were using apps that thwarted retention rules.

Some things can’t be prosecuted

Contrary to what you may believe, thus far none of these reports have confirmed a smoking gun, and the NYT pointedly makes it clear that its sources are not claiming to have a smoking gun (which may not rule out that they have one they’re not yet sharing).

The nature of the contacts remains unknown. Several of Mr. Trump’s associates have done business in Russia, and it is unclear if any of the contacts were related to business dealings.

But consider that smoking guns may be different depending on what they are. That’s true because somethings may be perfectly legal — such as investments from shady Russians — that nevertheless pose a serious counterintelligence risk of compromise going forward.

Its all the more true when you factor in the role of Sessions and Trump. For some of this stuff (including the September meeting with Kislyak) Sessions will be protected by Speech and Debate. It’d be very hard for DOJ to prosecute Sessions for stuff he did as a Senator, even assuming you had someone else in charge of the investigation or department.

Likewise, other crimes may not rise to the level of criminal prosecution but would rise to the level of impeachment. Which is why this passage from the NYT is so interesting.

Obama White House officials grew convinced that the intelligence was damning and that they needed to ensure that as many people as possible inside government could see it, even if people without security clearances could not. Some officials began asking specific questions at intelligence briefings, knowing the answers would be archived and could be easily unearthed by investigators — including the Senate Intelligence Committee, which in early January announced an inquiry into Russian efforts to influence the election.

If FBI judged it could not prosecute Trump or his close associates for something but nevertheless believed the evidence constituted something disqualifying, what they’d want to do is preserve the evidence, make sure SSCI could find it, and provide tips — laid out in the NYT, if need be — about where to look.

And any things that did rise to the level of criminal charges would be a lot easier to charge if someone besides Sessions were in charge.

This seems to be very methodical.

Update: February for January preservation date requests corrected. h/t TN.