Why a Clinton Foundation/Crossfire Hurricane Comparison Might Backfire

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Billy Barr has suggested a couple of times that if Trump wins, he’ll shut down the Durham inquiry.

A story from NYT may provide some insight as to why (and also might explain why Nora Dannehy resigned). John Durham is comparing the decisions made on the Clinton Foundation investigation with those made on the Crossfire Hurricane investigation.

Mr. Durham, the U.S. attorney in Connecticut assigned by Mr. Barr to review the Russia inquiry, has sought documents and interviews about how federal law enforcement officials handled an investigation around the same time into allegations of political corruption at the Clinton Foundation, according to people familiar with the matter.

As NYT explains it, the basis of comparison is that when FBI agents tried to use the Clinton Cash book to get a subpoena, they were shot down, whereas the FBI did use oppo research — the Steele dossier — to get the Carter Page FISA.

The allegations against Mrs. Clinton were advanced in the book “Clinton Cash,” by Peter Schweizer, a senior editor at large at Breitbart News, the right-wing outlet once controlled by Mr. Trump’s former top aide Stephen K. Bannon. The book contained multiple errors, and the foundation has dismissed its allegations.

But the book caught the attention of F.B.I. agents, who viewed some of its contents as additional justification to obtain a subpoena for foundation records.

Top Justice Department officials denied a request in 2016 from senior F.B.I. managers in Washington to secure a subpoena, determining that the bureau lacked a sufficient basis for it and that the book had a political agenda, former officials said. Some prosecutors at the time felt the book had been discredited.

The decision frustrated some agents who believed they had enough evidence beyond the book, including a discussion that touched on the foundation and was captured on a wiretap in an unrelated investigation. Other F.B.I. officials at the time believed the conversation’s relevance to the foundation case was tenuous at best.

The disagreement erupted anew later in the summer of 2016, when a top Justice Department official suspected that F.B.I. agents in New York were trying to persuade federal prosecutors in Brooklyn to authorize a subpoena after the department’s officials in Washington had declined such a request. By the time the F.B.I. officials revisited the issue, the Justice Department officials were also concerned that serving subpoenas would violate the practice of avoiding such investigative activity so close to an election.

One obvious conclusion from this might be that, had the FBI vetted the Steele dossier the way they did the Clinton Cash book, they would have discovered problems and not obtained the application. (Never mind that the FBI was targeting a guy who might have been and later on did victimize Trump by claiming he represented him on Ukrainian matters, rather than Trump himself.)

It’s a fair point, if you ignore that Christopher Steele was an established informant.

But the comparison could also backfire in spectacular fashion.

After all, after multiple Inspector General reviews, Michael Horowitz never found proof that any political bias from Peter Strzok or others influenced an investigative decision. He did, however, show that the FBI agent running an informant on the Clinton Foundation was biased.

We reviewed the text and instant messages sent and received by the Handling Agent, the co-case Handling Agent, and the SSA for this CHS, which reflect their support for Trump in the 2016 elections. On November 9, the day after the election, the SSA contacted another FBI employee via an instant messaging program to discuss some recent CHS reporting regarding the Clinton Foundation and offered that “if you hear talk of a special prosecutor .. .I will volunteer to work [on] the Clinton Foundation.” The SSA’s November 9, 2016 instant messages also stated that he “was so elated with the election” and compared the election coverage to “watching a Superbowl comeback.” The SSA explained this comment to the OIG by saying that he “fully expected Hillary Clinton to walk away with the election. But as the returns [came] in … it was just energizing to me to see …. [because] I didn’t want a criminal to be in the White House.”

On November 9, 2016, the Handling Agent and co-case Handling Agent for this CHS also discussed the results of the election in an instant message exchange that reads:

Handling Agent: “Trump!”

Co-Case Handling Agent: “Hahaha. Shit just got real.”

Handling Agent: “Yes it did.”

Co-Case Handling Agent: “I saw a lot of scared MFers on … [my way to work] this morning. Start looking for new jobs fellas. Haha.”

Handling Agent: “LOL”

Co-Case Handling Agent: “Come January I’m going to just get a big bowl of popcorn and sit back and watch.”

Handling Agent: “That’s hilarious!” [my emphasis]

And, as Peter Strzok has said repeatedly, had he really wanted to sabotage Trump’s election, he would have leaked details of the investigation, particularly after, in August 2016, he was shot down in his effort to investigate more aggressively by doing things like issue a subpoena.

In precisely the same situation, the Clinton Foundation Agents did leak details of the investigation, and in fact did have an effect on the election.

Hell, if Durham were allowed to continue down this path of comparison, we might finally figure out which New York Field Office were leaking rampantly during the election, leading to promises of indictments on Fox News.

The Still-Secret Cultivation of Alex Jones by Guccifer 2.0

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One of the more interesting redactions in the SSCI Russia Report hides details of how dcleaks and Guccifer 2.0 reached out to Alex Jones. Citing to five pages of a report the title of which is also redacted, the four paragraphs appear between the discussions of Guccifer 2.0’s outreach to then-InfoWars affiliate Roger Stone and Guccifer 2.0 and dcleaks’ communication with each other.

Thomas Rid provides a bit of background in his book, Active Measures (which is good in some parts, offers details of the 2016 attack that aren’t readily public, but does really uneven and in a few places incorrect interpretation of what that evidence means).

The GRU’s active measures in 2016 were never meant to be stealthy, only to be effective. In early October, the Russian intelligence officers learned from an official press release of their American counterparts that their two U.S. front accounts had been exposed—which meant, in effect, that they knew the accounts were now under surveillance. Nevertheless, they still continued to use these very accounts to reach out privately to journalists, and to escalate their disinformation game.

On October 18, for example, as the election campaign was white hot and during the daily onslaught of Podesta leaks, both GRU fronts attempted to reach out to Alex Jones, a then-prominent conspiracy theorist who ran a far-right media organization called Infowars. The fronts contacted two reporters at Infowars, offered exclusive material, and asked to be put in touch with the boss directly. One of the reporters was Mikael Thalen, who then covered computer security. First it was DCleaks that contacted Thalen. Then, the following day, Guccifer 2.0 contacted him in a similar fashion. Thalen, however, saw through the ruse and was determined not to “become a pawn” of the Russian disinformation operation; after all, he worked at Infowars. So Thalen waited until his boss was live on a show and distracted, then proceeded to impersonate Jones vis-à-vis the Russian intelligence fronts.23

“Hey, Alex here. What can I do for you?” the faux Alex Jones privately messaged to the faux Guccifer 2.0 on Twitter, later on October 18.

“hi,” the Guccifer 2.0 account responded, “how r u?”

“Good. Just in between breaks on the show,” said the Jones account. “did u see my last twit about taxes?”

Thalen, pretending to be Jones, said he didn’t, and kept responses short. The officers manning the Guccifer 2.0 account, meanwhile, displayed how bad they were at media outreach work, and consequently how much value Julian Assange added to their campaign. “do u remember story about manafort?” they asked Jones in butchered English, referring to Paul Manafort, Donald Trump’s former campaign manager. But Thalen no longer responded. “dems prepared to attack him earlier. I found out it from the docs. is it interesting for u?”24

Rid describes just one of two outreaches to Jones (through his IC sources, he may know of the report the SSCI relies on). And while Thalen claims to have rebuffed this one, as SSCI notes, he did publish a less pertinent story using stolen documents.

This one, however, uses as entrée some stolen documents from May 2016 showing that the Democrats were doing basic campaign research on Trump’s financials. It then purports to offer “Alex Jones” information on early Democratic attacks on Paul Manafort’s substantial Ukrainian graft, possibly part of the larger GRU effort to claim that Ukraine had planned an election year attack on Trump.

Rid, as he does throughout his analysis of the GRU personas, treats this as a failed attempt to sow disinformation, without considering the performative aspects of DMs sent by entities that know law enforcement can see those DMs.

Still, none of that explains why this passage was redacted, even while — with the unredacted reference to Thalen — making it clear that the redaction pertains to InfoWars and therefore is (as it is in the report) Roger Stone-adjacent. It may be SSCI considered ties between Guccifer 2.0 and another of Trump’s right wing propagandists too sensitive to release, as they did with other information damaging to Trump. It may be that the IC still considers this outreach to Jones sensitive.

A Month after Trump Learned that Mueller Knew of the Pardon Deal, Cassandra Fairbanks Learned the Pardon Was Off

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Cassandra Fairbanks gave a statement in the Julian Assange extradition hearing yesterday that WikiLeaks supporters seem to believe will help Assange.

Mostly it reveals that Don Jr’s buddy, Arthur Schwartz, knew and shared highly classified details about the WikiLeaks investigation with a known WikiLeaks associate, one who had recently worked for Russia’s Sputnik and was visibly close with Guccifer 2.0 during the election operation. (Fairbanks rather pointedly avoided disclosing that she used to work for the Russian propaganda outlet, saying only she had been “involved in similar areas of work” as the propaganda she does for Gateway Pundit). Fairbanks’ statement reveals that she repeatedly shared the information she learned with Assange, but not publicly. She didn’t do so immediately. Rather, she did so around January 7, 2019, just  weeks before Roger Stone was indicted (Fairbanks met Stone in 2016 through far right channels), and then again on March 25, after Bill Barr revealed that Trump and his failson had avoided conspiracy charges.

Fairbanks’ statement further reveals that after Fairbanks had exposed Schwartz (and his source for the information) legally for sharing the information, Schwartz reacted like a lot of right wing men do when put in danger, by espousing violence, in this case, the death penalty for WikiLeaks associates. Fairbanks also described how both Schwartz and Ric Grenell are assholes who throw around their power, which might make Fairbanks reconsider the right wing nutjobs she chooses to hang out with, but likely won’t help Assange avoid extradition.

So far, that doesn’t help Assange all that much. It says that a former propagandist for Russia shared non-public information with Julian Assange and in response, her source for that information responded furiously.

Fairbanks also repeats Grenell’s name a lot, though without corroborating that he — and not Don Jr — was Schwartz’s source. Indeed, at one point, Fairbanks suggested that Schwartz, in October 2018, implied that “lifelong friends” might be affected, which she seems to have taken to mean Jr.

Fairbanks did one more thing. DOJ charged Assange on December 21, 2017. Fairbanks, by her own description, was lobbying for WikiLeaks in her right wing chat room in that period, but Schwartz didn’t reveal the charges then. Assange was indicted on March 6, 2018. By her own description, Fairbanks was still lobbying for Assange in that right wing chatroom, but Schwartz didn’t reveal the charges.

But on October 30, 2018, when Fairbanks lobbied for Assange, Schwarz not only revealed the charges (in great detail), but he also told Fairbanks, “a pardon is not going to fucking happen.”

Just over a month earlier, on September 17, 2018, by submitting questions to be answered, Robert Mueller had revealed to Donald Trump that he knew of the pardon discussions for Assange (it’s unclear whether that was the first Trump learned Mueller had this question, but it wasn’t in the set posed earlier in 2018). Trump would eventually answer — after the election — without even denying that those pardon discussions happened, but only denying that he recalled them starting prior to the 2016 election.

Did you have any discussions prior to January 20, 2017, regarding a potential pardon or other action to benefit Julian Assange? If yes, describe who you had the discussion(s) with, when, and the content of the discussion(s).

I do not recall having had any discussion during the campaign regarding a pardon or action to benefit Julian Assange.

This is a pardon discussion that Roger Stone appears to have kicked off. But it is also one that WikiLeaks has, twice, nudged Don Jr about. The second of those times, Julian Assange implicitly threatened — with the hashtag #Vault 8 — further leaks of CIA hacking tools.

It may be the case that the US government didn’t move to provide concrete assurances to the UK that Assange wouldn’t be executed until that time, though Fairbanks doesn’t specifically tie Schwartz’ knowledge to the agreement, and the ABC news article she claims does so would actually place it a month earlier, in September.

It may in fact be the case that Trump didn’t take concrete steps to facilitate the arrest that his DOJ had already put in motion until after he realized that providing the pardon offered so long before would put him, Trump, in concrete legal danger, to say nothing of his failson, Schwartz’s buddy.

Roger Stone (and possibly Don Jr) pursued a pardon for a guy who at that very time was burning the CIA to the ground. That’s, at the very least, politically awkward. It likely exposed Jr in ways that made Schwartz furious and defensive.

But this is, by Fairbanks’ own account, still about that pardon — the one that WikiLeaks keeps pretending doesn’t exist.

Randy Credico Refuses to Answer Whether Roger Stone Called Him about an Assange Pardon on November 9, 2016

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As I wrote back in April, the available evidence indicates that Roger Stone reached out to WikiLeaks lawyer Margaret Kunstler just seven days after the election. Randy Credico testified in Stone’s trial that “some time” after the election, Stone reached out and said he needed to talk to Kunstler about a pardon.

A. Well, sometime after the election, he wanted me to contact Mrs. Kunstler. He called me up and said that he had spoken to Judge Napolitano about getting Julian Assange a pardon and needed to talk to Mrs. Kunstler about it. So I said, Okay. And I sat on it. And I told her — I told her — she didn’t act on it. And then, eventually, she did, and they had a conversation.

A warrant affidavit released in April reveals that on November 15, 2016, Stone texted Kunstler with a link to use to download Signal. Kunstler responded,  saying she would call Stone.

Additionally, text messages recovered from Stone’s iCloud account revealed that on or about November 15, 2016, Stone sent an attorney with the ability to contact Julian Assange a link to download the Signal application. 15 Approximately fifteen minutes after sending the link, Stone texted the attorney, “I’m on signal just dial my number.” The attorney responded, “I’ll call you.”

15 This attorney was a close friend of Credico’s and was the same friend Credico emailed on or about September 20, 2016 to pass along Stone’s request to Assange for emails connected to the allegations against then-candidate Clinton related to her service as Secretary of State.

These stories are somewhat inconsistent (when Credico first explained the timing of this to me, he said Stone’s call happened before the end of 2016). Credico says that first he “sat on it.” And then, after he told Kunstler that Stone wanted to talk to her, “she didn’t act on it.” Only after Credico sat on it for some time and Kunstler also didn’t act immediately, “eventually, she did” act on it.

There’s not a whole lot of time for Credico to sit on a Stone request and Kunstler to not act on it after Credico passed it on in the seven day span between the time Donald Trump got elected and this affidavit says Stone and Kunstler first spoke.

One way to explain the discrepancy, though, is if Roger Stone called Randy Credico the day after the election to start talking about a pardon. That’d leave time for Credico to “sit on it,” and Kunstler to not act on it before, “eventually, she did.”

Of course, that would mean that on the same day that the WikiLeaks account DMed Roger Stone (having chastised him three weeks earlier for reaching out), and said, “Happy? We are now more free to communicate,” Stone called (or texted) Credico and said he wanted to approach Margaret Kunstler about a pardon. In any case, it had to have happened shortly thereafter.

It would mean that hours after Trump won the election, with help from Julian Assange, the WikiLeaks Twitter account wrote Stone and said they were more free to communicate, which would mean (if this indeed happened the same day), Stone immediately reached out to Credico, saying he wanted to talk to Kunstler about a pardon.

Randy Credico and I just got into a bit of a Twitter spat because I quoted something else he said at Stone’s trial. That led me to ask him for more details about this pardon dangle, the first (known) one. After Credico said he did not recant on his testimony and said he had nothing to hide, he then dodged and dodged and dodged, refusing to answer either of two questions: 1) when Stone first called him or 2) whether it was on November 9.

So in spite of my persistence, Randy Credico refused to answer basic questions about something that Trump also refused to answer about–pardon dangles during the transition period (though Trump also professed memory failure going back into the election).

Whatever date Stone actually called Credico, by all appearances Julian Assange gave the President’s rat-fucker a green light to reach out and Stone immediately set about pursuing a pardon for Assange.

And WikiLeaks would like to distract you with the pardon dangle from the suspected Russian asset, instead.

Trump’s rat-fucker started paying off Assange’s election assistance immediately after the election, and Donald Trump won’t deny that that started before votes were even cast.

Wherein WikiLeaks Brags about Entertaining a Pardon Dangle from a Suspected Russian Asset and a White Supremacist

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Yesterday, Julian Assange’s lawyer Jennifer Robinson had a statement (which has not been released) read at his extradition hearing describing that she witnessed a meeting between Assange and Dana Rohrabacher on August 15, 2017 (Neo-Nazi Chuck Johnson was also present), where the Congressman said he had a win-win deal to offer: Trump would pardon Julian Assange if Assange would say that the source of the stolen DNC emails was not Russia.

Robinson stated that Assange did not disclose the source. Based on reports, though, she did not appear to deny that Assange had claimed his source was not Russia, which is what Rohrabacher reported at the time.

A lawyer representing the United States did not contest Robinson’s report, agreeing that the offer occurred. But representatives from the US did state that Trump had not agreed to it (which, without access to the exact statement, could mean any thing, but Trump certainly hasn’t pardoned Assange, yet).

Amid a laudable parade of arguments at Assange’s extradition hearing about the Espionage Act and discussions of all the important disclosures associated with the 2010 WikiLeaks releases for which Julian Assange is fighting extradition — including testimony read from German torture victim Khaled al-Masri, one of the first times he has had his say in public — including this statement was a cynical, and I would argue, damning, ploy.

In spite of the frenzy from the US press about the statement, the claim is not new. It was reported immediately by the Daily Caller (I covered that report here). Then Assange tweeted and then released on Facebook a statement asserting that reports from others should not be deemed authoritative. “Only unmediated statements coming directly from me can be considered authoritative.” Rohrabacher issued a statement, in which he promised to divulge what Assange stated to Trump.

Neither explicitly admitted what was obvious, that it was a pardon quid pro quo.

In a follow-up interview with the Daily Caller, Rohrabacher claimed not to remember whether he spoke to anyone at the White House about the meeting. Then, in a follow-up interview with Sean Hannity, Rohrabacher said, “It is my understanding from other parties who are trying to arrange the rendezvous that a rendezvous with myself and the President is being arranged for me to give him the firsthand information from him.” Earlier this year (when WikiLeaks announced that Robinson was going to resuscitate this story), Kim Dot Com released texts describing how he had pushed Trump’s best friend (whom he claimed not to identify) to accept the deal.

Those texts identified the best friend as Sean Hannity, the same guy who hosted Rohrabacher to explain that, “other parties [were] trying to arrange the rendezvous that a rendezvous with myself and the President is being arranged for me to give him the firsthand information from him.”

Ultimately, Chief of Staff John Kelly refused to let the President meet with Rohrabacher, just like he refused other agents of disinformation about the Russian hack to meet with him in the same period.

Mr. Rohrabacher confirmed he spoke to Mr. Kelly this week but declined to discuss the content of their conversation. “I can’t confirm or deny anything about a private conversation at that level,” he said in a brief interview. He declined to elaborate further.

A Trump administration official confirmed Friday that Mr. Rohrabacher spoke to Mr. Kelly about the plan involving Mr. Assange. Mr. Kelly told the congressman that the proposal “was best directed to the intelligence community,” the official said. Mr. Kelly didn’t make the president aware of Mr. Rohrabacher’s message, and Mr. Trump doesn’t know the details of the proposed deal, the official said.

In the call with Mr. Kelly, Mr. Rohrabacher pushed for a meeting between Mr. Assange and a representative of Mr. Trump, preferably someone with direct communication with the president.

On its face, the pardon dangle story proves only that Julian Assange was willing to meet with someone widely presumed to be Russian asset, Dana Rohrabacher, and a far right white nationalist to help float false claims about Russia’s role in getting Trump elected. It also proves that, at the time (when Trump was desperately trying to shut down the investigation into his coordination with Russia in the 2016 election and one after another were giving false prepared statements denying such coordination), the President had a Chief of Staff with the ability to look out after his legal interests.

And while I doubt lawyers for the US will go there, in context, the fact that WikiLeaks’ defense team presented just one of the at least four pardon dangles — including one for which the import of Russian disinformation is more obvious than others — is a testament to the degree to which the true story of those pardon discussions would make WikiLeaks’ compromise by Russia clear.

Here are the known discussions of pardons since WikiLeaks released emails in such a way as to optimize their benefit to getting authoritarian torture fan Donald Trump elected.

  • Starting at least by November 16 (and probably earlier) and lasting at least through January 11, 2018, Roger Stone tried to broker a pardon; according to sworn testimony by Randy Credico, Margaret Kunstler was involved in this effort (and threatening to expose whatever role Kunstler had in the process is one of the ways Stone used to discourage Credico’s testimony).
  • Starting at least by January 12 and continuing until at least March 28, 2017, Adam Waldman — the lawyer that Assange shared with Oleg Deripaska, whom the SSCI Report shows had a central role in the 2016 operation — tried to negotiate a deal via which Assange would provide limited information to mitigate the harm of the Vault 7 leak and DOJ (or if that failed, SSCI) would give him immunity, effectively a pardon. Given WikiLeaks’ history of sharing raw documents with Russia and others, the entrée would have come long after WikiLeaks had had the opportunity to broker the files, which would have helped Russia not only identify CIA’s hacks of Russian computers, but also NOCs working for CIA. (I’ve started to wonder whether the Russian treason case from late 2016 has a tie.) John Solomon — who has spread Deripaska’s propaganda before — even blamed Jim Comey for the compromise that resulted. In short, the offer was far too late to be meaningful, but it was an effort to give Assange impunity for burning the CIA to the ground.
  • From August to October 2017, Rohrabacher pursued his pardon for disinformation deal.
  • Last week, in the guise of defending journalism, Glenn Greenwald went on Tucker Carlson’s show (where a number of people have successfully lobbied for a pardon) and pitched pardons for both Assange and Ed Snowden not, as he claimed, out of any defense of journalism or whistleblowers — both things that Trump affirmatively reviles — but instead because it’s a great way to stick it to the Obama Deep State.

So one pardon pitch immediately after Assange worked with Russia to get Trump elected, another one brokered by Oleg Deripaska’s lawyer, a third pitched by a Congressman widely believed to be a Russian asset, and finally Glenn’s pitch for a pardon as a great way to do damage to the intelligence community.

Not only did Russia figure in all of those pardon dangles, but each was pitched not as a way to honor Assange’s debt to journalism, but instead to serve Russia’s purposes. And for some reason WikiLeaks thinks that raising just one of these — while remaining silent about perhaps the most damning pardon dangle — helps prove its case that Julian Assange is a journalist and not the Russian spy the prosecutors in this case claim to believe he is.

The Closed Mueller Investigations: Erik Prince Skates on the Seychelles

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Fresh off an ex parte hearing, DOJ released a spreadsheet of original Mueller redactions they’re now willing to withdraw (on top of the ones they withdrew after the Roger Stone trial).

There’s a bunch of Internet Research Agency redactions the government has withdrawn I won’t lay out.

More interesting are the select few the government withdrew pertaining to Trump flunkies.

There are three search warrants withdrawn:

  • A warrant for Rob Goldstone’s Facebook account (see footnote 298)
  • A warrant for George Papadopoulos’ Linked In account (see footnote 458)
  • A warrant for Erik Prince’s location data (see footnote 1047)

The only surprising disclosure is the last one. This suggests that any investigation into Prince’s lies about the Seychelles is good and dead.

Then there are the redactions of ongoing and referred investigations DOJ no longer considers secret. Those include:

  • The investigation of Podesta Group, Mercury/Clark & Weinstock, which SDNY closed
  • The references to FTI Consulting in the Greg Craig entry on D-4
  • An investigation into foreign campaign contributions, item 11 on ongoing investigations, which would have been closed by the DC US Attorney, and probably was the Mystery Appellant case.
  • A reference to Left Hand Ventures:
    • Left Hand Enterprises – During the course of the investigation, the Special Counsel’s Office uncovered evidence of potential wire fraud and FECA violations pertaining to Trump Campaign vendor Left Hand Enterprises That evidence was referred to the Public Integrity Section within DOJ’s Criminal Division and the FBI’s Washington Field Office
  • A reference to Rebuilding America Now:
    • Rebuilding America Now – During the course of the investigation, the Special Counsel’s Office uncovered evidence of potential FECA violations and potential kickback schemes pertaining to the Rebuilding America Now PAC That evidence was referred to the Public Integrity Section within DOJ’s Criminal Division and the FBI’s Washington Field Office

Both of the last two involve suspect Paul Manafort graft, including the kickback system by which he was suspected of getting paid.

This seems to suggest the investigation into some of Paul Manafort’s epic graft is also dead.

That means the bulk of the redacted ongoing investigations remain ongoing (or otherwise sensitive — and they could be counterintelligence investigations). They include around 10 referrals — including anything pertaining to Roger Stone (including Jerome Corsi) and the presumed George Nader child porn referral already prosecuted.

Update: Corrected an error to note the closure of item 11, the suspected bribe involving the Mystery Appellant. h/t d

After Bill Barr Minimized Roger Stone’s Threat against Amy Berman Jackson, Emmet Sullivan Got Threatened by a Mike Flynn Supporter

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In this post, I showed how Billy Barr justified a lenient sentence for Roger Stone in part by treating threats against judges as a technicality.

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.

After an anti-feminist Trump supporter allegedly targeted the family of federal judge Esther Salas in July, Barr claimed to care about such attacks on judges, even though he had treated the threat against ABJ as a technicality.

Unbelievably, the very next week, when Barr lied under oath about treating threats to judges as a technicality, he would have known of another threat against a judge.

Not just any judge.

Another judge presiding over a case against a Trump flunky, Emmet Sullivan. In August, a Long Island man, Frank Caporusso, was charged for threats left on Sullivan’s Chambers phone.

On May 15, 2020, Deputy United States Marshal Louie McKinney, Jr. discovered threatening statements made against Victim One and his staff while listening to voicemails left on Victim One’s Chambers’ telephone line. One voicemail, which recorded a male caller speaking for approximately 30-31 seconds, stated:

We are professionals. We are trained military people. We will be on rooftops. You will not be safe. A hot piece of lead will cut through your skull. You bastard. You will be killed, and I don’t give a fuck who you are. Back out of this bullshit before it’s too late, or we’ll start cutting down your staff. This is not a threat. This is a promise.

[snip]

Investigation also revealed social media accounts that appear to belong to the defendant. These accounts, primarily a Twitter account, contain posts and images calling various politicians and celebrities “morons” and “sycophants.” The last “tweets” were sent on July 3, 2020. Additionally, a twitter reply was sent at 10:48 p.m. on May 14, 2020 (the same evening the voicemail was left).

WaPo’s Ann Marimow first suggested the timing of the threat suggested it was Sullivan and Newsday confirms it.

According to sources, Caporusso accessed the “dark web,” including sites that encouraged people to take action against the judge for his overall handling of the Flynn case.

So after Bill Barr treated a threat against a judge presiding over a Trump associate as a technicality, an apparent QAnon nutter with a long gun responded to Sullivan’s actions in QAnon supporter Mike Flynn’s case by threatening to assassinate Sullivan.

“The Buck Stops at the Top:” In January, Bill Barr’s DOJ Decided the Correct Decision Was to Send Mike Flynn to Prison

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I’d like to make one more point about Billy Barr’s rant last night. Over and over again, Barr suggested that line prosecutors have been making hyper-aggressive decisions that the Department of Justice cannot answer for and that his involvement simply amounts to ensuring that the decisions DOJ makes are ones he’s willing to take responsibility for.

Indeed, aside from the importance of not fully decoupling law enforcement from the constraining and moderating forces of politics, devolving all authority down to the most junior officials does not even make sense as a matter of basic management.  Name one successful organization where the lowest level employees’ decisions are deemed sacrosanct.  There aren’t any.  Letting the most junior members set the agenda might be a good philosophy for a Montessori preschool, but it’s no way to run a federal agency.  Good leaders at the Justice Department—as at any organization—need to trust and support their subordinates.  But that does not mean blindly deferring to whatever those subordinates want to do.

This is what Presidents, the Congress, and the public expect.  When something goes wrong at the Department of Justice, the buck stops at the top.  28 U.S.C. § 509 could not be plainer:  “All functions of other officers of the Department of Justice and all functions of agencies and employees of the Department of Justice are vested in the Attorney General.”

And because I am ultimately accountable for every decision the Department makes, I have an obligation to ensure we make the correct ones.  The Attorney General, the Assistant Attorneys General, and the U.S. Attorneys are not figureheads selected for their good looks and profound eloquence.

They are supervisors.  Their job is to supervise.   Anything less is an abdication.

To the extent Barr is talking about the Mueller investigation, every single prosecutorial decision was reviewed by Acting Attorney General Rod Rosenstein. For those decisions, then, Barr’s not actually talking about decisions made by line prosecutors. He’s talking about decisions overseen by someone vested, like him, with all the authority of DOJ.

For precisely the reason Barr lays out — that DOJ must be able to answer for things DOJ does — it’s highly unusual for DOJ to flip-flop on prosecutorial decisions that past Attorneys General have approved.

But with one action in the Mike Flynn prosecution — possibly one he thought of when he invoked probation sentences in one of his last paragraphs — Barr’s interventions into the cases of Donald Trump’s flunkies is far worse than that.

In short, it is important for prosecutors at the Department of Justice to understand that their mission — above all others — is to do justice.  That means following the letter of the law, and the spirit of fairness.  Sometimes that will mean investing months or years in an investigation and then concluding it without criminal charges.  Other times it will mean aggressively prosecuting a person through trial and then recommending a lenient sentence, perhaps even one with no incarceration.

In moving to dismiss Flynn’s prosecution, Barr was overriding a decision he himself had approved of. In January, DOJ called for prison time for Flynn, citing the materiality of his lies and his abuse of trust.

The defendant’s offense is serious, his characteristics and history present aggravating circumstances, and a sentence reflecting those factors is necessary to deter future criminal conduct. Similarly situated defendants have received terms of imprisonment.

Public office is a public trust. The defendant made multiple, material and false statements and omissions, to several DOJ entities, while serving as the President’s National Security Advisor and a senior member of the Presidential Transition Team. As the government represented to the Court at the initial sentencing hearing, the defendant’s offense was serious. See Gov’t Sent’g Mem. at 2; 12/18/2018 Hearing Tr. at 32 (the Court explaining that “[t]his crime is very serious”).

The integrity of our criminal justice depends on witnesses telling the truth. That is precisely why providing false statements to the government is a crime. As the Supreme Court has noted:

In this constitutional process of securing a witness’ testimony, perjury simply has no place whatsoever. Perjured testimony is an obvious and flagrant affront to the basic concepts of judicial proceedings. Effective restraints against this type of egregious offense are therefore imperative. The power of subpoena, broad as it is, and the power of contempt for refusing to answer, drastic as that is — and even the solemnity of the oath — cannot insure truthful answers. Hence, Congress has made the giving of false answers a criminal act punishable by severe penalties; in no other way can criminal conduct be flushed into the open where the law can deal with it.

United States v. Mandujano, 425 U.S. 564, 576 (1975); see also Nix v. Whiteside, 457 U.S. 157, 185 (1986) (“[t]his Court long ago noted: ‘All perjured relevant testimony is at war with justice, since it may produce a judgment not resting on truth.’”) (quoting In re Michael, 326 U.S. 224, 227 (1945)). All persons carry that solemn obligation to tell the truth, especially to the FBI.

The defendant’s repeated failure to fulfill his obligation to tell the truth merits a sentence within the applicable Guidelines range. As the Court has already found, his false statements to the FBI were material, regardless of the FBI’s knowledge of the substance of any of his conversations with the Russian Ambassador. See Mem. Opinion at 51-52. The topic of sanctions went to the heart of the FBI’s counterintelligence investigation. Any effort to undermine those sanctions could have been evidence of links or coordination between the Trump Campaign and Russia. For similar reasons, the defendant’s false statements in his FARA filings were serious. His false statements and omissions deprived the public and the Trump Administration of the opportunity to learn about the Government of Turkey’s covert efforts to influence policy and opinion, including its efforts to remove a person legally residing in the United States.

The defendant’s conduct was more than just a series of lies; it was an abuse of trust. During the defendant’s pattern of criminal conduct, he was the National Security Advisor to the President of the United States, the former Director of the Defense Intelligence Agency, and a retired U.S. Army Lieutenant General. He held a security clearance with access to the government’s most sensitive information. The only reason the Russian Ambassador contacted the defendant about the sanctions is because the defendant was the incoming National Security Advisor, and thus would soon wield influence and control over the United States’ foreign policy. That is the same reason the defendant’s fledgling company was paid over $500,000 to work on issues for Turkey. The defendant monetized his power and influence over our government, and lied to mask it. When the FBI and DOJ needed information that only the defendant could provide, because of that power and influence, he denied them that information. And so an official tasked with protecting our national security, instead compromised it.

This was no decision made by rogue line prosecutors, Brandon Van Grack and Jocelyn Ballantine. In December, Jessie Liu signed a request for an extension so that the “multiple individuals and entities” that had to approve the new sentencing recommendation could do so.

There are multiple individuals and entities who must review and approve the government’s submission, including any changes from the government’s prior sentencing memorandum and its specific sentencing recommendations.

And then again in January, Jessie Liu got an extension so the “multiple individuals and entities” who had to review the sentencing memo could do so.

As the government represented in its initial motion, there are multiple individuals and entities who must review and approve the government’s submission, including any changes from the government’s prior sentencing memorandum and its specific sentencing recommendations. The government has worked assiduously over the holidays to complete this task, but we find that we require an additional 24 hours to do so.

Bill Barr says he is responsible for making the correct decision, and his DOJ reviewed the decision to imprison Mike Flynn at length. Taking him at his word, that means Bill Barr believed, in January, knowing all the details that were “new” to Timothy Shea when he wrote his motion to dismiss, but not new to Michael Horowitz and John Durham, who had already reviewed them, that the correct decision was to send Mike Flynn to prison.

It’s bad enough that Barr has repeatedly refused to stand by decisions made by others imbued with the authority of the entire DOJ under 28 U.S.C. § 509.

But Bill Barr won’t even stand by his past decisions.

Bill Barr Defended Yevgeniy Prigozhin Last Night

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While he didn’t do so explicitly and may not have the clarity of thought to even realize it, but in his screed at radical right wing Hillsdale College, Bill Barr effectively defended Yevgeniy Prigozhin’s attempts to interfere in American elections.

That’s because — in a speech attacking Robert Mueller’s work — he took an extended swipe at exotic interpretations of law.

In recent years, the Justice Department has sometimes acted more like a trade association for federal prosecutors than the administrator of a fair system of justice based on clear and sensible legal rules.  In case after case, we have advanced and defended hyper-aggressive extensions of the criminal law.  This is wrong and we must stop doing it.

The rule of law requires that the law be clear, that it be communicated to the public, and that we respect its limits.  We are the Department of Justice, not the Department of Prosecution.

We should want a fair system with clear rules that the people can understand.  It does not serve the ends of justice to advocate for fuzzy and manipulable criminal prohibitions that maximize our options as prosecutors.  Preventing that sort of pro-prosecutor uncertainty is what the ancient rule of lenity is all about.  That rule should likewise inform how we at the Justice Department think about the criminal law.

Advocating for clear and defined prohibitions will sometimes mean we cannot bring charges against someone whom we believe engaged in questionable conduct.  But that is what it means to have a government of laws and not of men.  We cannot let our desire to prosecute “bad” people turn us into the functional equivalent of the mad Emperor Caligula, who inscribed criminal laws in tiny script atop a tall pillar where nobody could see them.

To be clear, what I am describing is not the Al Capone situation — where you have someone who committed countless crimes and you decide to prosecute him for only the clearest violation that carries a sufficient penalty.  I am talking about taking vague statutory language and then applying it to a criminal target in a novel way that is, at a minimum, hardly the clear consequence of the statutory text.

[snip]

The Justice Department abets this culture of criminalization when we are not disciplined about what charges we will bring and what legal theories we will bless.  Rather than root out true crimes — while leaving ethically dubious conduct to the voters — our prosecutors have all too often inserted themselves into the political process based on the flimsiest of legal theories.  We have seen this time and again, with prosecutors bringing ill-conceived charges against prominent political figures, or launching debilitating investigations that thrust the Justice Department into the middle of the political process and preempt the ability of the people to decide.

This criminalization of politics will only worsen until we change the culture of concocting new legal theories to criminalize all manner of questionable conduct.  Smart, ambitious lawyers have sought to amass glory by prosecuting prominent public figures since the Roman Republic.  It is utterly unsurprising that prosecutors continue to do so today to the extent the Justice Department’s leaders will permit it.

As long as I am Attorney General, we will not.

Our job is to prosecute people who commit clear crimes.  It is not to use vague criminal statutes to police the mores of politics or general conduct of the citizenry.  Indulging fanciful legal theories may seem right in a particular case under particular circumstances with a particularly unsavory defendant—but the systemic cost to our justice system is too much to bear.

He even ad-libbed a comment to more specifically attack Michael Dreeben, the top member of the Solicitor General’s office, who was a member of the Mueller team.

The Obama administration had some of the people who were in Mueller’s office writing their briefs in the Supreme Court, so maybe that explains something.

Mueller considered a range of exotic applications of law.

He considered charging Don Jr for accessing a private website using the password provided by people associated with WikiLeaks. But he didn’t charge the failson, arguing the intent wasn’t there.

He considered charging Don Jr. for accepting an offer of campaign dirt from a foreigner, Aras Agalarov. He didn’t charge it, in part, because Don Jr is too stupid to know that accepting campaign help from foreigners is illegal.

Mueller considered charging Roger Stone for accepting campaign assistance from foreigners Julian Assange and the GRU in the form of stolen emails. He didn’t charge it, in part for First Amendment reasons.

Every other charge, save one, was a routine application of law:

  • George Papadopoulos, for lying to the FBI about when he got offered campaign dirt
  • Mike Flynn, for lying to the FBI about undermining sanctions imposed on Russia for interfering in the election and lying to DOJ about having secretly worked for the Turkish government
  • Paul Manafort and Rick Gates, for money laundering, cheating his taxes, lying to DOJ on a FARA form, and (in Manafort’s case) trying to get witnesses to lie
  • Michael Cohen, for lying to Congress about the lucrative business deal Trump was chasing during the election
  • Roger Stone, for lying to Congress about a lot of things, including that he kept the campaign informed of his efforts to optimize the data stolen by Russian intelligence officers, as well as for threatening Randy Credico
  • Alex Van der Zwaan, for lying to the FBI about Gates’ ongoing ties to Russian intelligence officer Konstantin Kilimnik
  • Richard Pinedo, for stealing the identities of other Americans and selling them, including to Russian trolls
  • A bunch of GRU officers, for hacking the DNC and other targets
  • A bunch of paid trolls, for stealing the identities of American people and hiding their own true identity while paying for trolling infrastructure

The single indictment that Mueller brought that was a hyperextension of criminal law was against Yevgeniy Prigozhin, his trolls, his troll farm, and his shell companies for engaging in political activities in the US without registering; the theory of the case evolved over time to include getting unsuspecting Americans to engage in politics on behalf of foreign actors. Those are the charges that DOJ dropped (and I defended the decision, even though Barr’s rant makes me think questions about politicization may have merit). My suspicion is that Mueller charged it, in part, to be able to incorporate Prigozhin (and by extension, Vladimir Putin) into the indictment. But it was a stretch. Just what Barr says: a legal theory crafted — probably in part to establish a precedent for future tampering using social media — to go after a bad person, Prigozhin. The two subsequent complaints against Prigozhin’s trolls have not included the FARA charge.

But if Barr is speaking about Prigozhin, here, it raises real questions about why Interpol dropped the Red Notice against Prigozhin. Did Barr drop that request?

There’s one more investigation into foreigners helping Trump that Barr seems to be defending. Barr’s complaint that people in Mueller’s office wrote briefs for the Supreme Court also seems to suggest Barr disapproves of the Mystery Appellant case, which is understood to involve a bribe. That was the only case argued to the Supreme Court.

Mueller won that legal fight, even if the mystery foreign company who challenged a subpoena effectively avoided complying by lying anyway.

But by invoking Dreeben — one of the most respected Appellate lawyers in the country — Barr seems to be complaining that Trump might be investigated for accepting a bribe.

Bill Barr’s Screed Is About Mike Flynn, Nora Dannehy, and Robert Mueller

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Bill Barr delivered a remarkable screed last night at the radical right Hillsdale College. Numerous people have and will unpack both the glaring contradictions and the dangerous assertions in it.

But I want to point out that it is quite obviously about Barr’s attempts to overturn the prosecutions of Trump’s flunkies for covering up their efforts to help Russia interfere in the election.

A big part of it is targeted towards independent counsels (though, tellingly, Barr assails the independent counsel statute that used to be, not the one that left Robert Mueller closely supervised by Rod Rosenstein).

As Justice Scalia observed in perhaps his most admired judicial opinion, his dissent in Morrison v. Olson: “Almost all investigative and prosecutorial decisions—including the ultimate decision whether, after a technical violation of the law has been found, prosecution is warranted—involve the balancing of innumerable legal and practical considerations.”

And those considerations do need to be balanced in each and every case.  As Justice Scalia also pointed out, it is nice to say “Fiat justitia, ruat coelum. Let justice be done, though the heavens may fall.”  But it does not comport with reality.  It would do far more harm than good to abandon all perspective and proportion in an attempt to ensure that every technical violation of criminal law by every person is tracked down, investigated, and prosecuted to the Nth degree.

[snip]

This was of course the central problem with the independent-counsel statute that Justice Scalia criticized in Morrison v. Olson.  Indeed, creating an unaccountable headhunter was not some unfortunate byproduct of that statute; it was the stated purpose of that statute.  That was what Justice Scalia meant by his famous line, “this wolf comes as a wolf.”  As he went on to explain:  “How frightening it must be to have your own independent counsel and staff appointed, with nothing else to do but to investigate you until investigation is no longer worthwhile—with whether it is worthwhile not depending upon what such judgments usually hinge on, competing responsibilities.  And to have that counsel and staff decide, with no basis for comparison, whether what you have done is bad enough, willful enough, and provable enough, to warrant an indictment.  How admirable the constitutional system that provides the means to avoid such a distortion.  And how unfortunate the judicial decision that has permitted it.”

Justice Jackson understood this too.  As he explained in his speech:  “If the prosecutor is obliged to choose his cases, it follows that he can choose his defendants. Therein is the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted.”  Any erosion in prosecutorial detachment is extraordinarily perilous.  For, “it is in this realm—in which the prosecutor picks some person whom he dislikes or desires to embarrass, or selects some group of unpopular persons and then looks for an offense, that the greatest danger of abuse of prosecuting power lies. It is here that law enforcement becomes personal, and the real crime becomes that of being unpopular with the predominant or governing group, being attached to the wrong political views, or being personally obnoxious to or in the way of the prosecutor himself.”

And part of it is a restatement of the arguments Acting Solicitor General Jeff Wall made before the DC Circuit, arguing that even bribery was not reason for a judge to override DOJ’s decisions on prosecutions.

I want to focus today on the power that the Constitution allocates to the Executive, particularly in the area of criminal justice.  The Supreme Court has correctly held that, under Article II of the Constitution, the Executive has virtually unchecked discretion to decide whether to prosecute individuals for suspected federal crimes.  The only significant limitation on that discretion comes from other provisions of the Constitution.  Thus, for example, a United States Attorney could not decide to prosecute only people of a particular race or religion.  But aside from that limitation — which thankfully has remained a true hypothetical at the Department of Justice — the Executive has broad discretion to decide whether to bring criminal prosecutions in particular cases.

And the rest suggests that career prosecutors have been putting targets on the heads of politically prominent people and pursuing them relentlessly.

Once the criminal process starts rolling, it is very difficult to slow it down or knock it off course.  And that means federal prosecutors possess tremendous power — power that is necessary to enforce our laws and punish wrongdoing, but power that, like any power, carries inherent potential for abuse or misuse.

[snip]

Line prosecutors, by contrast, are generally part of the permanent bureaucracy.  They do not have the political legitimacy to be the public face of tough decisions and they lack the political buy-in necessary to publicly defend those decisions.  Nor can the public and its representatives hold civil servants accountable in the same way as appointed officials.  Indeed, the public’s only tool to hold the government accountable is an election — and the bureaucracy is neither elected nor easily replaced by those who are.

[snip]

We want our prosecutors to be aggressive and tenacious in their pursuit of justice, but we also want to ensure that justice is ultimately administered dispassionately.

We are all human.  Like any person, a prosecutor can become overly invested in a particular goal.  Prosecutors who devote months or years of their lives to investigating a particular target may become deeply invested in their case and assured of the rightness of their cause.

When a prosecution becomes “your prosecution”—particularly if the investigation is highly public, or has been acrimonious, or if you are confident early on that the target committed serious crimes—there is always a temptation to will a prosecution into existence even when the facts, the law, or the fair-handed administration of justice do not support bringing charges.

[snip]

That is yet another reason that having layers of supervision is so important.  Individual prosecutors can sometimes become headhunters, consumed with taking down their target.  Subjecting their decisions to review by detached supervisors ensures the involvement of dispassionate decision-makers in the process.

And it excuses, in one sentence, calling for probation even after a just prosecution.

Other times it will mean aggressively prosecuting a person through trial and then recommending a lenient sentence, perhaps even one with no incarceration.

Of course, none of this makes sense, and Barr’s own behavior — from removing Senate confirmed US Attorneys to put in people accountable only to him, from seeking prosecution of Democratic officials, and from launching the Durham investigation because he was just certain there was criminal wrong-doing in the Russian investigation — belies his words.

Perhaps it does so in the most basic way. If we hold our Attorney General politically accountable through elections, then we need to make sure elections are fair. We definitely need to make sure that elections are not influenced by hostile foreign powers cooperating with one candidate. The 2016 election wasn’t fair, and Bill Barr is doing his damndest to make sure the voters won’t be able to use the 2020 election to hold him politically accountable for interfering with the punishment of those who worked to cheat.

Because of Barr’s corrupt view on cheating at elections, he ensures that Vladimir Putin has more say over who gets prosecuted than experienced American prosecutors.