Mueller Probe Archives - Page 46 of 152

Who, What, When, Why: Trump Has Paid $500K to Silence Keith Schiller

In the middle of a NYT story explaining why Trump, whose campaign has raised over $1 billion, is facing a cash crunch, it reveals that Trump’s bodyguard — whom they don’t name — has been paid $500,000 since 2017.

Mr. Trump’s former bodyguard and White House aide has been paid more than $500,000 by the R.N.C. since late 2017.

This appears to be a reference to Keith Schiller, whose generous funding for to complete vaguely defined tasks dubbed “security” have been reported in the past.

Schiller was originally hired by the RNC to help select a site for the 2020 convention. But once the city of Charlotte, North Carolina, was announced in July, Schiller’s firm was kept on to “work on other security needs for the committee,” a party official told CNBC, speaking on the condition of anonymity.

The official declined to go into detail about what the committee’s security needs might be but confirmed that the work is ongoing.

The RNC’s characterization of Schiller is different from how the committee described his work a year ago, when CNBC first inquired about it.

In February 2018, an RNC official told CNBC that the committee had hired Schiller’s firm, KS Global Group, for a very specific purpose: “To provide security consultation for the RNC 2020 convention site selection process, which is currently underway.”

The official also took pains to emphasize that Schiller’s $15,000 a month fee was not coming out of the same funds the party was using to help elect Republicans to office in the 2018 midterms. Instead, the official said, Schiller’s firm was being paid out of a special fund set aside for convention expenses.

Since the time of all the earlier reports about Schiller’s exorbitant fees to do little, however, we’ve learned that Schiller witnessed Trump actions that go beyond whether or not he fucked sex workers while in Moscow in 2013.

He was also the cut-out for calls on which Trump sought to optimize Russia’s help in 2016.

The SSCI Report provides evidence that Roger Stone spoke to Donald Trump via Keith Schiller’s phone on July 17, 2016, when Stone was at the RNC obtaining advance notice of when the stolen DNC files would drop.

However, Stone’s phone records show that Keith Schiller placed a five-minute call to Stone on the afternoon of July 17, 2016.1499 Witnesses said that Trump often used Schiller’s phone to hide his communications. For example, Sam Nunberg recalled Stone commenting in the late 2015 to early 2016 time frame that Trump would call Stone from Keith Schiller’s phone because he did not want his advisors to know they were talking. 1500

It further suggests that a call Rick Gates witnessed, which he incorrectly remembered had taken place in early August 2016, instead took place on September 29, using Schiller’s phone.

On September 29, a call took place between Stone and Trump while Trump and Gates were on the way to LaGuardia Airport. After the call ended, Trump told Gates that “more releases of damaging information would be coming.”1619 Phone records show that this was not the first phon~ call between them that day. Trump called Stone three times just before 10:00 a.m. on the morning of September 29, but could not connect.1620 Stone returned the call to a Trump Organization number two hours later, but the call lasted only two minutes. 1621 Then, at approximately 1 :40 p.m., Stone received a one-minute call from Keith Schiller’s phone number, which records show originating from East Elmhurst, New York-in proximity to LaGuardia Airport.1622 Stone returned the call to Schiller at 1:51 p.m. for three minutes. 1623 This call matches the conversation between Stone and Trump that Gates remembered.

This flurry of calls was included in exhibits entered into Stone’s trial but never actually explained.

Stone also had a call to Schiller’s phone on October 6, the night before WikiLeaks started dropping the Podesta files.

On the afternoon of October 6, Stone received a call from Keith Schiller’s number. Stone returned the call about 20 minutes later, and spoke-almost certainly to Trump–for six minutes. 1663 The substance of that conversation is not known to the Committee. However, at the time, Stone was focused on the potential for a WikiLeaks release, the Campaign was following WikiLeaks’s announcements, and Trump’s prior call with Stone on September 29, also using Schiller’s phone, related to a WikiLeaks release. Given these facts, it appears quite likely that Stone and Trump spoke about WikiLeaks.

In other words, it’s not just from Trump’s rat-fucker — from whom Trump bought the silence by commuting his prison time — that Trump must buy silence. He also has to ensure that Schiller doesn’t repeat details of what Stone told Trump when he got advance notice of the first WikiLeaks drop, what he told Trump a week before the Podesta files started dropping, and what he told Trump the night before.

And that’s just what SSCI was able to discover from a really partial understanding of what Mueller found. With access to (at least) much of Stone’s unencrypted emails and texts from 2016, Mueller would have had a far better idea of what Schiller may have witnessed while serving as the cut-out between Trump and his rat-fucker.

Whatever secrets Trump is paying Schiller to keep, they are apparently worth bankrupting his re-election campaign fund.

Julian Assange’s First Witness, Journalism Professor Mark Feldstein, Professes to Be Unfamiliar with the Public Record on Assange

The first day of the Julian Assange extradition hearing was a predictable circus.

Assange’s lawyers tried two legal tactics.

First, they tried to get parts of the second superseding indictment excluded from the proceedings. They claimed they hadn’t had time to review it with Assange. While I’m sympathetic to the difficulties imposed by Assange’s imprisonment amid COVID measures, WikiLeaks supporters have at the same time been (correctly) complaining that the documents on which the new allegations are based have been public for some time.

In any case, it didn’t work. Judge Vanessa Baraister said that she had offered Assange the opportunity to raise this complaint in the last hearing.

Judge Baraister similarly rejected a bid to delay the hearing until January (not incidentally the period when, if a Trump pardon for Assange would be forthcoming, it would take place), on largely the same basis.

Next, Professor Mark Feldstein — a journalism professor at University of Maryland — tried to present his testimony. Technical problems forced Baraister to delay proceedings until tomorrow.

That has left the public with copies of Feldstein’s prepared testimony and a supplement before he has the opportunity to present it and lawyers for the US to grill him in response. That may be unfortunate, because Feldstein’s original testimony has some key errors and omissions, and in his supplement he professes a lack of familiarity with the public record in this case.

Let me be clear: I wholeheartedly agree with large swaths of Professor Feldstein’s testimony. Donald Trump has waged unprecedented attacks on members of the news media, both verbally and through policy. I agree, too, that the First Amendment is not limited to journalists, and that political advocacy like Assange’s has a storied place in the history of journalism. I agree that some of the stories based off Chelsea Manning’s leaks were blockbusters (Feldstein predictably starts by listing Collateral Murder, which is not charged, and his effort to include all the files that were charged strays much further from the ones that have been most important.) His history of classified leaks is useful, though in some places he seems to misunderstand what was new and what wasn’t revealed until the release of declassified documents. His statement speaks at length about the dire problem with overclassification (though in one case, he cites a John McCain accusation about Obama’s motive for leaking as fact, a claim that hasn’t held up to subsequent events; he later cites McCain as a classification villain). I even agree with some, though not all, of his analysis of how the charges against WikiLeaks threaten normal journalistic activities like soliciting, receiving, and publishing documents, and protecting confidential sources. (Feldstein never goes so far as to defend helping a source hack something.) His testimony is valuable for the background on journalism it offers.

But Feldstein’s account of how the Assange prosecution arose out of Donald Trump’s election — which occurred with Assange’s help!!! — not only invents claims he doesn’t support, but makes several telling errors in citation.

Donald Trump’s election changed the calculus. The month after his inauguration, the president met with FBI director James Comey and brought up the issue of plugging leaks. Comey suggested “putting a head on a pike as a message” and Trump recommended “putting reporters in jail.”83 Three days later, he instructed his attorney general to investigate “criminal leaks” of “fake” news reports that had embarrassed the White House.84 According to press accounts, the new administration soon “unleashed an aggressive campaign” against Assange. CIA director Mike Pompeo publicly attacked WikiLeaks as a “hostile intelligence service” that uses the First Amendment to “shield” himself from “justice.” In private, he briefed members of Congress on a bold counterintelligence operation the agency was conducting that included the possible use of informants, penetrating overseas computers, and even trying to directly “disrupt” WiliLeaks, a move that made some lawmakers uncomfortable.85 A week later, Attorney General Jeff Sessions said at a news conference that journalists “cannot place lives at risk with impunity,” that prosecuting Assange was a “priority” for the new administration, and that if “a case can be made, we will seek to put some people in jail.” 86 The new leaders at the Justice Department dismissed their predecessors’ interpretation that Assange was legally indistinguishable from a journalist and reportedly began “pressuring” their prosecutors to outline an array of potential criminal charges against him, including espionage. Once again, career professionals were said to be “skeptical” because of the First Amendment issues involved and a “vigorous debate” ensued. 87 Two prosecutors involved in the case, James Trump and Daniel Grooms, reportedly argued against charging Assange.88 But in April of 2019, Assange was arrested in London—even though “the Justice Department did not have significant evidence or facts beyond what the Obama-era officials had when they reviewed the case.”89

83 Abramson, “Comey’s wish for a leaker’s ‘head on a pike.’”

84 “Remarks by President Trump in Press Conference,” WH.gov (Feb. 16, 2017); Charlie Savage and Eric Lichtblau, “Trump Directs Justice Department to Investigate ‘Criminal Leaks,’” New York Times (Feb. 16, 2017); Barnes, et al, “How the Trump Administration Stepped up Pursuit of WikiLeaks’ Assange.”

85 CIA, “Director Pompeo Delivers Remarks at CSIS” (April 13, 2017): www.cia.gov/news-information/speechestestimony/2017-speeches-testimony/pompeo-delivers-remarks-at-csis.html.

86 “Sessions Delivers Remarks,” Justice.gov. [sic]

87 Matt Zapotosky and Ellen Nakashima, “Justice Department debating charges against WikiLeaks members,” Washington Post (April 20, 2017); Adam Goldman, “Justice Department Weighs Charges Against Julian Assange,” New York Times (April 20, 2017).

88 Devlin Barrett, Matt Zapotosky and Rachel Weiner, “Some federal prosecutors disagreed with decision to charge Assange under Espionage Act,” Washington Post (May 24, 2019). 89 Barrett, et al, “Prosecutors Disagreed.”

The first citation (83) is to a 2018 story on Jim Comey’s memos memorializing conversations about leaks damaging to Trump, not WikiLeaks. The second (84) refers to an effort to go after those who damaged Trump. The next three sentences are attributed to Mike Pompeo’s designation of WikiLeaks as a non-state hostile actor in April 2017 (85), in the wake of the Vault 7 leaks, but two of those sentences (bolded) are not actually sourced to Pompeo’s comments, but instead to news accounts not specified in the relevant footnote. The next sentence combines what Jeff Sessions said on April 20, 2017 and what he said on August 4, 2017; perhaps Feldstein aims to cover that up by not including a date or a citation in the remarks in question (see footnote 86; Sessions’ April 20 comments don’t appear to be on the DOJ website), but suggesting Sessions’ August comments were about Assange is a move that WikiLeaks has made elsewhere. Importantly, Feldstein does not footnote one of the most widely cited reports of that April 20 speech, a CNN report that describes what changed, already in 2017, since DOJ had earlier decided not to prosecute Assange.

The US view of WikiLeaks and Assange began to change after investigators found what they believe was proof that WikiLeaks played an active role in helping Edward Snowden, a former NSA analyst, disclose a massive cache of classified documents.

[snip]

US intelligence agencies have also determined that Russian intelligence used WikiLeaks to publish emails aimed at undermining the campaign of Hillary Clinton, as part of a broader operation to meddle in the US 2016 presidential election. Hackers working for Russian intelligence agencies stole thousands of emails from the Democratic National Committee and officials in the Clinton campaign and used intermediaries to pass along the documents to WikiLeaks, according to a public assessment by US intelligence agencies.

That is, if Feldstein had reviewed the press coverage more broadly, he would have a ready explanation for why DOJ began to rethink its earlier decision not to charge Assange.

Assange’s own filing may attempt to cover for Feldstein’s citation inaccuracy, claiming that Feldstein cited that April WaPo story rather than ““Sessions Delivers Remarks,” Justice.gov”.

Then came the political statement of Attorney General Sessions on 20 April 2017 that the arrest of Julian Assange was now a priority and that ‘if a case can be made, we will seek to put some people in jail’ [Feldstein quoting Washington Post article of Ellen Nakashima, tab 18, p.19].

But even that April 20, 2017 WaPo article he claims to rely on doesn’t help him. In fact, it disputes Feldstein’s account of Trump’s animus towards WikiLeaks.

Trump has had a fluid relationship with WikiLeaks, depending largely on how the group’s actions benefited or harmed him. On the campaign trail, when WikiLeaks released Podesta’s hacked emails, Trump told a crowd in Pennsylvania, “I love WikiLeaks!” But when it came to the release of the CIA tools, he did not seem so pleased.

“In one case, you’re talking about highly classified information,” Trump said at a news conference earlier this year. “In the other case, you’re talking about John Podesta saying bad things about the boss.”

The actual words cited in part to the WaPo in Feldstein’s testimony (naming Ellen Nakashima, not Matt Zapotosky) don’t appear in the April story but in the NYT story cited. The rest relies on a [Devlin Barret and] Zapotosky story fairly obviously sourced to prosecutor James Trump, whom Zapotosky covered in the Jeffrey Sterling case and other EDVA cases but who — the story admits — wasn’t on the team anymore even when Assange was originally charged (presumably meaning December 2017 on just a CFAA charge that would accord with AUSA Trump’s concerns about an Espionage charge), and who would therefore have no visibility into what went into the May 2018 superseding indictment of Assange, much less the one on the table now.

In short, a key paragraph in Feldstein’s testimony, which is cited repeatedly in both Assange’s briefs on the case (one, two), is a scholarly shit-show.

And that’s before you consider the chronology of it, omitting as it does the Vault 7 leak which all the Assange-specific comments were responding to, which started on March 7, 2017.

That’s not the only problem with Feldstein’s citations. Feldstein also footnotes a claim that Assistant Attorney General for DOJ’s National Security Division John Demers, “declared that ‘Julian Assange is no journalist’ and thus not protected under the free press clause of the US Constitution’s First Amendment” with a citation to news reports on the indictment, rather than the remarks as prepared rolling out the indictment. While the story from Charlie Savage that Feldstein cites responsibly quotes Demers in context, the full statement makes it clear that it’s not only not a comment directly about the First Amendment, but that Demers never mentions the First Amendment.

The Department takes seriously the role of journalists in our democracy and we thank you for it. It is not and has never been the Department’s policy to target them for their reporting.

Julian Assange is no journalist. This made plain by the totality of his conduct as alleged in the indictment—i.e., his conspiring with and assisting a security clearance holder to acquire classified information, and his publishing the names of human sources.

Indeed, no responsible actor—journalist or otherwise—would purposely publish the names of individuals he or she knew to be confidential human sources in war zones, exposing them to the gravest of dangers.

This continues WikiLeaks’ longstanding effort to suggest the government has made First Amendment claims about Assange that obscure what they have actually said. (AUSA Gordon Kromberg does appear to have addressed the First Amendment in ways WikiLeaks has claimed that others have, but his affidavit is not yet public.)

While Kromberg’s testimony is not yet public, in one of the government’s filings made public today, the government hints at what Kromberg may have said at more length, noting that Feldstein only cites part of — but not the entirety — of a news report on Assange.

The principal evidence upon which the defence relies to demonstrate the existence of a such a decision is a newspaper article dated 25 November 2013 [Sari Horowitz, “Julian Assange is unlikely to face US Charges over publishing classified documents”, Washington Post]; Cited by Professor Feldstein at §9 page 18. 39.

Professor Feldstein omits important sections of the report upon which he relies to demonstrate a “decision” not to prosecute:

“The officials stressed that a formal decision has not been made, and a grand jury investigating WikiLeaks remains impaneled, but they said there is little possibility of bringing a case against Assange, unless he is implicated in criminal activity other than releasing online top-secret military and diplomatic documents.

And:

“WikiLeaks spokesman Kristinn Hrafnsson said last week that the anti-secrecy organization is skeptical “short of an open, official, formal confirmation that the U.S. government is not going to prosecute WikiLeaks.” Justice Department officials said it is unclear whether there will be a formal announcement should the grand jury investigation be formally closed”.

So, in response to Kromberg, Feldstein dug himself a very much deeper hole.

In a supplemental filing, Assange expert witness Mark Feldstein claimed and exhibited that he’s not familiar with the public record (though he cleaned up some of his prior citation errors). In it, he claimed the only way to know the truth about the Assange prosecution would be from leaks of grand jury or White House documents. “[T]he reporting I cited by the New York Times and Washington Post is to date the only public source of information about the behind-the-scenes maneuvering to prosecute Assange,” he claimed in a filing submitted on July 5, 2020.

The government insists that the Trump administration’s prosecution of Assange is not politically motivated. It dismisses my contrary conclusion—and that of other expert witnesses—by saying that we “primarily rely on a select number of news articles…and the hearsay within them.”

Indeed, my declaration relied on news accounts that the Obama administration decided not to prosecute Assange because of concerns that doing so would violate the First Amendment. 2 In particular, I cited comments that Matthew Miller, the former spokesman for the Obama Justice Department, made in an interview with the Washington Post: “The problem the department has always had in investigating Julian Assange is there is no way to prosecute him for publishing information without the same theory being applied to journalists. And if you’re not going to prosecute journalists for publishing classified information, which the department is not, then there is no way to prosecute Assange.” The Post reported that prosecutors called this the “New York Times problem”—that if they indicted Assange for publishing the documents leaked by Chelsea Manning, then they would also have to also indict the New York Times for doing the same.3

I also noted that the Trump administration decide to reject this interpretation and cited a New York Times report that its new appointees running the Justice Department began “pressuring” prosecutors to indict Assange, although two career prosecutors argued against doing so on First Amendment grounds. I also cited the article’s finding that “the Justice Department did not have significant evidence or facts beyond what the Obama-era officials had when they reviewed the case”4 and concluded that the decision to indict Assange was not an evidentiary decision but a political one.5

As the government knows, internal prosecutorial deliberations are not a matter of public record. White House and Justice Department documents that would shed further light on the political dimensions of the case—emails, internal memos, grand jury transcripts, and other records—are kept secret by the government. Thus, the reporting I cited by the New York Times and Washington Post is to date the only public source of information about the behind-the-scenes maneuvering to prosecute Assange.

Like so much other questionable conduct by the Trump administration, revelations about the unorthodox nature of this prosecution came to light only because of the vigilance of a free and vigorous press.

1 Gordon D. Kromberg, “Declaration in Support of Assange Extradition,” US v. Assange (Jan. 17, 2020), ¶18-19, pp. 8- 9.

You have got to be fucking kidding me!!

I invite Professor Feldstein to assign his undergraduate journalism students with the task of trying to discover any Trump, White House, and National Security views about WikiLeaks and Julian Assange that might explain why DOJ decided not to prosecute in 2013 but did prosecute in 2017, 2019, and 2020.

His first year undergraduate students might note the proximity between the April 2017 Assange-related announcements (the Jeff Sessions of which he obscures with his dodgy citation) and the release of the Vault 7 files in March 2017, which burned the CIA hacking ability to the ground.

They also might point to Trump’s tweets celebrating WikiLeaks to suggest that while Trump might hate the traditional press, he spent most of the 2016 campaign celebrating WikiLeaks.

Feldstein’s second year undergraduate students might look to the obvious places — like the Mueller Report — for some views about how Trump ordered campaign staff to go chase down WikiLeaks’ releases. Not only do the descriptions completely undermine Feldstein’s claim that Trump treats WikiLeaks like he does traditional media outlets, but it shows that the Department of Justice conducted an extensive investigation implicating WikiLeaks after the 2013 Matthew Miller quote he relies on. Indeed, exceptional sophomores might note that a redaction error in the Mueller Report makes it clear that a Mueller prosecutorial decision about foreign donations pertains to WikiLeaks, a detail released in 2019 that James Trump would not have been privy to.

Junior year journalism students might refer to the Stone trial testimony to see what it said about Trump’s relationship with WikiLeaks. Really astute journalism students would note that Randy Credico testified that Donald Trump’s rat-fucker Roger Stone actually reached out to Randy Credico in an effort to broker a pardon for Assange.

Q. Had you put Mr. Stone directly in touch with Ms. Kunstler after the election?

A. Yes, I did.

Q. And why had you done that?

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.

The same astute budding journalists might look at the trial record and discover how long those pardon discussions lasted — continuing well past the time Mike Pompeo and Jeff Sessions were discussing prosecuting journalists and/or Assange.

Senior journalism students might even tie that testimony to a question Robert Mueller asked — but didn’t really get an answer about — regarding whether Trump had considered an Assange pardon.

Donald Trump refused to answer a question under oath about whether he considered pardoning Julian Assange during the transition period between when WikiLeaks releases helped get him elected and his inauguration, something that makes it pretty clear the President treats WikiLeaks and Assange, which helped him get elected, differently than he does journalists who did not.

Professor Feldstein says he’d need a leak to discover that.

There’s a slew more that graduate students might discover but that Feldstein professed to be helpless to discover himself, such as the warrant that makes it clear Stone reached out to WikiLeaks lawyer Margaret Kunstler — to discuss an Assange pardon, WikiLeaks supporter Randy Credico testified to under oath — seven days after Trump got elected.

Or the other Stone warrant making it clear that after several of the media reports Feldstein relies on, Mueller’s team was just beginning to obtain warrants implicating Assange, in part for election-related crimes that have nothing to do with the Espionage Act. Or yet another that suggests DOJ was investigating WikiLeaks, in part, for conspiracy and Foreign Agent charges in August 2018.

Diligent journalism students — budding journalists not intimidated by redaction marks — might even look to the multiple SSCI Reports that address the government’s evolving understanding of WikiLeaks, particularly those that show how the many conflicting views in 2016 came to change to believe that WikiLeaks had been coopted by Russia.

Despite Moscow’s history of leaking politically damaging information, and the increasingly significant publication of illicitly obtained information by coopted third parties, such as WikiLeaks, which historically had published information harmful to the United States. previous use of weaponized information alone was not sufficient for the administration to take immediate action on the DNC breach. The administration was not fully engaged until some key intelligence insights were provided by the IC, which shifted how the administration viewed the issue.

Here, in public view, is indication that not just DOJ but the entire Intelligence Community came to shift their view of WikiLeaks and Assange as they investigated how Russia had attacked US democracy in 2016. But Mark Feldstein testified in his supplemental testimony that he could only discover that if someone leaked it to him.

Finally, Feldstein’s students might seek to understand the workings of a grand jury from the same place journalists always have, from those called to testify before them. Had they done so, they would at a minimum discover the Jeremy Hammond description of how he refused to testify for what would be the last superseding indictment against Assange, in which he described prosecutors twice claiming (without evidence) that Assange is “a Russian spy.”

“What could the United States government do that could get you to change your mind and obey the law here? Cause you know” — he basically says — “I know you think you’re doing the honorable thing here, you’re very smart, but Julian Assange, he’s not worth it for you, he’s not worth your sacrifice, you know he’s a Russian spy, you know.”

[snip]

He implied that all options are on the table, they could press for — he didn’t say it directly, but he said they could press for criminal contempt. … Then he implies that you could still look like you disobeyed but we could keep it a secret — “nobody has to know I just want to know about Julian Assange … I don’t know why you’re defending this guy, he’s a Russian spy. He fucking helped Trump win the election.”

The claims of a prosecutor as he’s trying to coerce testimony don’t affirm the veracity of the claim. Hammond’s claims in no way prove that Assange is a Russian spy or even that DOJ believes he is. But it does indicate what DOJ’s then-current claims were, in March 2020, before the most recent superseding indictment against Assange. They would indicate that the prosecutors asking for the extradition of Julian Assange claim to believe he is a Russian spy.

There is an embarrassment of public documents describing how the US government’s view of Assange changed between 2013 and 2020, as well as plenty that show DOJ was obtaining new legal process well after DOJ decided not to prosecute Assange. That doesn’t mean their view is correct or that it in any way mitigates the risk to journalism. But it does mean their view is discoverable by anyone who wants to check the public record.

And yet journalism Professor Mark Feldstein professes to be helpless to explain why DOJ charged Assange in 2017 and 2019 and 2020 but not in 2013, not unless someone leaks to him what DOJ and Trump and the rest of the US government were really thinking. And so instead, he offered a paragraph that falls apart completely if you simply read his source material, to say nothing of the public record.

Feldstein gives himself a bit of an excuse by claiming that his scholarly statement doesn’t address what happened after 2011 (a focus that may come from WikiLeaks’ lawyers — recall that someone close to Assange scolded me for reporting accurately on what WikiLeaks had done in 2016 and afterwards).

It should be noted that this report addresses only WikiLeaks disclosures in 2010-2011, the time period when Assange is accused of violating the Espionage Act; it does not discuss the website’s previous or subsequent document releases.

But you can’t claim to provide expert testimony about what DOJ was doing in 2017 without considering what WikiLeaks had done in the interim, and how that might change investigative tactics and conclusions (and did, in fact, lead DOJ to reconsider the evidence they had).

The record shows that — far from treating Assange with the disdain Trump harbored towards traditional journalists — Trump’s close associates entertained numerous discussions about pardons, and Trump himself refused to deny that under oath to Mueller. It further shows that the targeting of Wikileaks immediately followed the Vault 7 leaks burned the CIA’s hacking capacity to the ground (a prosecution that Trump himself almost blew up hours before the FBI confiscated Schulte’s passports). Finally, there is an abundance of evidence discoverable in the public record by any diligent journalism student that the understanding of WikiLeaks significantly evolved after the decisions not to charge Assange in 2013, in part because a national security investigation sought to figure out how badly Russians had tampered in our election, and in part because Trump got all kinds of help in the election from foreigners (including Assange).

Mark Feldstein claims in his expert testimony that what is happening to Julian Assange is just part of Trump’s larger assault on the press.

Seen in this light, the administration’s prosecution of Julian Assange is part and parcel of its campaign against the news media as a whole. Indeed, Assange’s criminal indictment under the US Espionage Act is arguably its most important action yet against the press, with potentially the most far-reaching consequences.

But he makes that claim while also admitting zero familiarity about the public record concerning Assange which shows the opposite.

The Julian Assange prosecution presents serious risks to journalism. But none of those excuse shoddy journalism — a failure to even consult the public, official record — in support of his case. That’s what Assange’s first witness is planning to do.

Update: Cleaned up the post and fixed a date.

The US Government Formed a New Understanding of WikiLeaks after 2016

September 7, 2020/35 Comments/in 2016 Presidential Election, emptywheel, Mueller Probe, WikiLeaks /by emptywheel

Julian Assange’s substantive extradition hearing starts today. (I’m collating a list of journalists covering it from the live feed.)

I view the proceeding with great ambivalence.

I definitely agree that some of the charges against him — there are two theories of publishing charges: conspiring by asking for specific files, including entire databases, and publishing the identities of informants — pose a threat to the press. That said, the Trump Administration has used one of the same theories it is using against Assange to threaten journalists even in the last week (and was, before his superseding indictment) with virtually no cries of alarm from those defending Assange. In addition, charging him for exposing the identities of US and Coalition sources is a well-established crime in the UK, the Official Secrets Act, and (because Coalition sources were included among those WikiLeaks is accused of exposing) could be charged if the extradition against him fails.

The CFAA charge against Assange — particularly as expanded in the latest superseding indictment — does not pose any unique threat to journalism. Indeed, Assange’s alleged co-conspirators in the bolstered CFAA charge were already prosecuted, on both sides of the Atlantic, so there’s no question that the underlying hacking is a viable charge. WikiLeaks supporters have pointed to the unreliability of Siggi and Sabu to question those charges. They’ve focused less on the immunity granted David House for his testimony, though at trial Assange’s lawyers would focus on that, too. They might argue, too, that the US government has spun this particular conspiracy well outside the bounds where participants had made common agreement (if they kept spinning, after all, FireDogLake might get swept up for Jane Hamsher’s ties to House and defense of Manning back in the day). But those are complaints about the strength of the government case, not the appropriateness of extradition. I suspect the government case is far stronger than shown in the indictment, which currently relies only on publicly available evidence.

Assange’s defense will call a number of experts (Kevin Gosztola discusses them here), many though not all of whom will present important, valid points. They’ll raise important issues about the free speech implications of this case, the dangers of the Espionage Act, America’s atrocious standards of incarceration, and the EDVA venue; the latter three of these, however, are in no way unique to Assange (and venue for him in EDVA is uncontroversial, unlike it has been for others charged in a district where a jury is virtually guaranteed to include people tied to the national security world). They’ll raise evidentiary complaints to which the lawyer representing the US government will present counterarguments. They’ll talk a lot about the Collateral Murder video, which was not charged.

WikiLeaks’ supporters will also exploit the US government’s Mike Pompeo problem, in this case by misrepresenting a comment he bombastically made about the First Amendment when declaring WikiLeaks a non-state hostile actor in the wake of the Vault 7 release.

No, Julian Assange and his kind are not the slightest bit interested in improving civil liberties or enhancing personal freedom. They have pretended that America’s First Amendment freedoms shield them from justice. They may have believed that, but they are wrong.

[snip]

Third, we have to recognize that we can no longer allow Assange and his colleagues the latitude to use free speech values against us. To give them the space to crush us with misappropriated secrets is a perversion of what our great Constitution stands for. It ends now.

[snip]

DIRECTOR POMPEO: Yeah, First Amendment freedoms. What I was speaking to there was, as – was a little less constitutional law and a lot more of a philosophical understanding. Julian Assange has no First Amendment freedoms. He’s sitting in an embassy in London. He’s not a U.S. citizen. So I wasn’t speaking to our Constitution.

What I was speaking to is an understanding that these are not reporters don’t good work to try to keep you – the American government honest. These are people who are actively recruiting agents to steal American secrets with the sole intent of destroying the American way of life. That is fundamentally different than a First Amendment activity, as I understand them, and I think as most Americans understand them. So that’s what I was really getting to.

We’ve had administrations before that have been squeamish about going after these folks under some concept of this right-to-publish. No one has the right to actively engage in the threat of secrets from America with the intent to do harm to it.

This is not the first time the Trump Administration has had a Mike Pompeo problem when prosecuting WikiLeaks-related crimes, nor should it be the last. I believe Joshua Schulte’s attempts to call Pompeo forced the government to back off its claim that Schulte’s decision to leak to WikiLeaks — allegedly in April 2016 and so months before the future CIA Director was still celebrating WikiLeaks leaks of DNC files — was by itself proof of his intent to damage the US. That’s particularly true as Secretary of State Mike Pompeo torches the infrastructure of Human Rights in the world. While I, in no way, believe the Assange prosecution arises from any personal animus Pompeo has for Assange, Pompeo’s role in it and his clear retaliation against the ICC last week will be easy to use to delegitimize the Assange prosecution.

So WikiLeaks will have a lot of good points to present in the next several weeks.

But they’re also expected to tell a number of cynical lies, including with respect to pardon dangles in the US, lies that will detract from the otherwise very important principles they will raise.

I believe the prosecution of Julian Assange as charged poses a number of dangers to journalism.

But I also believe the government has evidence — some of which it may not want to share during extradition and some of which it may not ever share — that Assange is precisely what they say he is, someone with an entire intelligence infrastructure uniquely targeting the US. Of particular note (as I said regarding one of the new allegations in the CFAA charge), I know of multiple allegations, of mixed but in some cases impeccable credibility, that WikiLeaks has used its infrastructure to spy on protected entities — journalists, lawyers, former associates — going back years, long before UC Global allegedly ratcheted up the spying on Assange. The NYT doesn’t spy on its competitors to find out how they might undermine its unique role, and WikiLeaks itself says such spying on Assange is improper, so there’s no basis to claim that when WikiLeaks does it, it’s all good.

Still, even if Assange is the head of a non-state hostile intelligence agency, does that merit prosecution? While the US has sanctioned the heads of hostile state intelligence agencies, with a few notable exceptions, they don’t extend their jurisdiction overseas to prosecute them.

In addition, the allegations of involvement in Russia in all this are well-founded. The folks involved in the LulzSec chatrooms now incorporated into Assange’s CFAA charge acknowledge there were Russians there as well, though explain that the whole thing was so chaotic no one thought that much about it. Only those who aggressively ignore the public case afford WikiLeaks any deniability that it did Russia’s work in publishing the stolen Democratic files in 2016. The Joshua Schulte trial presented evidence he wanted to work with Russia too; while the evidence presented (almost incidentally, a point I hope to return to one day) at trial is quite ambiguous, I first learned about his willingness to work with Russia months before any such allegation made it into a court filing. In addition, I know of one much earlier instance where someone in WikiLeaks’ infrastructure had similar such interests. And that’s before all the allegations that WikiLeaks diverted files damaging to Russia over years.

All of those are my views about the ambivalence of this extradition proceeding, whatever those are worth as someone who has followed WikiLeaks closely from the beginning.

But there’s another point that has gotten virtually no attention, particularly not from WikiLeaks supporters who often make false claims about the investigation into WikiLeaks that conflict with this point. The government’s understanding of WikiLeaks changed after 2016, and so changed after the Obama Administration decided that prosecuting WikiLeaks posed “a New York Times problem.” The multi-volume Senate Intelligence Report talks about this repeatedly, though virtually all instances (such as this passage from Volume III) remain heavily redacted.

A different passage from the same volume, however, explicitly calls WikiLeaks a “coopted third party.”

Despite Moscow’s hist01y of leaking politically damaging information, and the increasingly significant publication of illicitly obtained information by coopted third parties, such as WikiLeaks, which historically had published information harmful to the United States. previous use of weaponized information alone was not sufficient for the administration to take immediate action on the DNC breach. The administration was not fully engaged until some key intelligence insights were provided by the IC, which shifted how the administration viewed the issue.

And, to the very limited extent you can trust the view of a prosecutor trying to coerce testimony from Jeremy Hammond, the people who will prosecute Assange if he’s extradited claim he’s a Russian spy.

This has important implications for the case against Assange, implications that his supporters make aggressive efforts to obscure. First, the surveillance of Assange almost certainly ratcheted up because of actions Assange took in 2016 and 2017, actions that aren’t protected by journalism. As a foreigner who negotiated the receipt of documents with a presumed Russian mouthpiece, Guccifer 2.0 — in what was surely theater played out on Twitter DMs — Assange and WikiLeaks made themselves targetable as foreign intelligence targets in an attempt to learn about the Russian attack on the US. Assange’s multiple efforts to offer Trump’s campaign a unique benefit — picked up in investigative collections targeting others — made Assange a criminal target in a foreign donation investigation, one Mueller declined to prosecute for First Amendment reasons (50 USC 30121 is cited in the single Mueller warrant admitted to be targeting WikiLeaks that has been publicly released). And because of some overt ongoing communications with Joshua Schulte over the course of the former CIA programmer’s prosecution, WikiLeaks’ communications would be collected incidentally off of collection targeting him as the primary suspect in the leak.

Thus, even before Pompeo declared WikiLeaks a non-state hostile actor, Assange had done things that made him targetable in a way that he hadn’t previously been. And burning down the CIA’s hacking capability behind thin claims of public interest and then continuing to communicate with the presumed source surely didn’t help matters.

And, according to multiple public, official government documents, that changed the US government’s understanding of what WikiLeaks is. Public documents make it clear that witnesses (including but not limited to David House) provided new testimony as the government came to this new understanding, even beyond the government’s ill-fated attempt to coerce more testimony out of Chelsea Manning and Hammond. I know of at least two non-public investigative steps the government took as well. On August 20, 2018 — two days before a prosecutor wrote a gag request in EDVA that mistakenly mentioned the sophistication of Assange and the publicity surrounding his case and eight months after Assange was first charged — a Mueller warrant targeting a Guccifer 2.0 email account described an ongoing investigation into whether WikiLeaks and others were conspiring and/or a Foreign Agent, which suggests a similar amount of activity targeting Assange directly in EDVA. The government conducted a great deal of investigation into Assange — predicated off of either activities that have nothing to do with journalism and/or the fact that there was one obvious source for what might be WikiLeaks most damaging publication — that has happened in recent years.

WikiLeaks supporters will cite something that former DOJ Director of Public Affairs, Matthew Miller, said about how hard it is to distinguish what WikiLeaks does from what the New York Times does.

The problem the department has always had in investigating Julian Assange is there is no way to prosecute him for publishing information without the same theory being applied to journalists.

But Miller made that comment in 2013, before Assange did things that gave the US government reason, entirely independent of things journalists do, to investigate him and WikiLeaks more aggressively. And even in an Administration that might not be in power were it not for Assange’s actions, even after Trump and his associates considered rewarding Assange with a pardon for his help, that has led to a dramatically different understanding of what WikiLeaks is.

That belief — and the government’s still mostly secret evidence for it — does nothing to mitigate the risks of some of the charges against Assange, as currently charged. But it is a fact that should be considered in the debate.

Update: Fixed date of a Mueller warrant I discussed.

Update: Bridges will be posting all the arguments and statements. Thus far they include:

Interpol Drops Red Notice against Yevgeniy Prigozhin Even Though US Charges Remain

September 4, 2020/9 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

Some days ago, the Moscow Times reported that Interpol had dropped the extradition notice for Yevgeniy Prigozhin based on DOJ’s dismissal of charges against his shell companies.

Interpol has removed catering magnate Yevgeny Prigozhin from its international alert list after U.S. prosecutors dropped a criminal case into election meddling against his company.

The U.S. District Court for the District of Columbia dismissed in March the case against Concord Management and Consulting LLC, less than a month before the company was due to face a criminal trial in the case. Its executive Yevgeny Prigozhin, 12 individuals and two other entities were charged in 2018 with conspiracy to defraud the United States for their alleged role in funding a propaganda operation to interfere in the 2016 presidential election.

Though the report doesn’t say this explicitly, the charges against Prigozhin have not been dropped. DOJ only dropped the charges against Prigozhin’s corporate person, not his biological person.

Nevertheless, the publicly released letter appears to indicate that the Red Notice against Prigozhin himself has indeed been dropped.

I’ve asked for clarification from Interpol but gotten no response.

According to a VKontakte announcement, Interpol’s action comes in advance of several planned trips for Prigozhin into jurisdictions where he could be extradited, including Germany.

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

September 3, 2020/37 Comments/in 2016 Presidential Election, emptywheel, Financial Fraud, Leak Investigations, Mueller Probe /by emptywheel

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

Andrew Miller Was [Probably] Questioned about Someone He Knew Under a Different Name

September 2, 2020/12 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

Among the FBI 302s BuzzFeed just liberated appears to be the 302 from the original FBI interview of Andrew Miller. The date matches, the interview was conducted (as Miller’s was) by agents showing up to serve a subpoena, the location is redacted, the name is six characters, and the interview closely focuses on Roger Stone. In this post, I will generally use “Miller” as the interviewee here, with the understanding that identification of this as him is not 100%.

The interview confirms something I have long suspected: Miller was a witness to details about a person he did not know by proper name. This was the last person the FBI agents asked Miller about (see below for the others). The 302 describes that Miller, “did not immediately recognize the name [redacted] but after discussion, determined he knew the individual in question as [redacted].” After two and a half redacted paragraphs, the 302 records that Miller “had never met [redacted] but had seen a photo of him.” The rest of the discussion of this person is redacted.

Given everything else we know about Miller’s testimony — and how, after extensive discussions with Stone in the wake of this interview — Miller fought his subpoena to the DC Circuit, it is highly likely that Miller knows that Stone met this person at the RNC, where Miller was running Stone’s schedule. Shortly after Stone met with this person, at least according to Michael Cohen, Stone gave Trump advance knowledge that the DNC emails would be dropping days later.

That’s the most interesting detail from this interview, but 302 has other key details.

After two paragraphs laying out whom Miller worked for, his interview included the following:

Almost 20 paragraphs describing his relationship with Stone, virtually all of it redacted under [dubious] privacy redactions. The unredacted bits describe:
- Miller hadn’t seen Stone for three or four weeks and didn’t know whether he was in NY or FL
- Stone was not a tech guy
- Stone ran his own Twitter account
- Stone traveled to NYC for several days every week
- A claim he had never been to Stone’s current home
- A (false) claim that he had done “nothing really” for Stone over the previous two years, as well as an explanation that no one continued to work for Stone once they had a family because Stone demanded too much time
About ten paragraphs commenting on Stone’s relationship with Trump, including the following claims, most dubious:
- Miller did not think Stone “was a lawbreaker, nor would he break the law for Trump”
- Stone mostly talked about Hillary incessantly because he was selling a book
- Miller did not really remember talking to Stone about the DNC hack
- Miller spoke to Stone about the media coverage of him since the election
- Stone was “all about Twitter,” and focused on the retweets he got, but did not pay for them (this conflicts with details in the Facebook takedown of Stone’s accounts and other testimony)
- Miller had not been in contact with any Russians himself
Three paragraphs about Alex Jones (who was raised significantly before Corsi in this interview), including:
- Miller didn’t like Jones
- Miller thought Stone worked there for the money and the reach to areas of the country that “the left has forgotten”
- Miller didn’t know who did InfoWar’s IT and digital strategy, but it was better than Stone’s because they had more money
Discussions of two people whose names are redacted (one of these is likely Sam Nunberg):
- Of the first person, Miller suggested that Stone took credit for things he didn’t do and lied to people to get credibility with them
- Of the second, Miller described he and Stone having a “love-hate” relationship
A paragraph about Michael Caputo, describing their relationship as “complicated”
Just one paragraph about Jerome Corsi, though Miller appears to have testified that he wasn’t aware of what the two were up to
Miller also claimed not to know if Stone used encrypted apps to communicate (the record actually shows he started using them more later in 2016) and made a false claim that he and Stone primarily communicated via email (Miller turned over texts between him and Stone, and Stone was an avid texter, though all of his texts from 2017 disappeared)

Miller was given the opportunity to correct any lies he told in the interview, but he chose not to.

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

September 2, 2020/55 Comments/in 2016 Presidential Election, 2020 Presidential Election, emptywheel, Mueller Probe /by emptywheel

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

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

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

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

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

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

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

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

KRISHNAMOORTHI: Currently?

MUELLER: Currently.

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

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

[snip]

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

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

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

KISLYAK: yeah.

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

KISLYAK: You’re absolutely right.

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

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

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

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

[snip]

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

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

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

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

[snip]

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

[snip]

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

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

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

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

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

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

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

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

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

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

Billy Barr Released Someone with a History of Conspiring from Prison to Home Confinement

September 2, 2020/20 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

One thing the Senate Intelligence Committee Report on Russia does is confirm there’s a continuity between the efforts to carve up Ukraine pitched to Paul Manafort on August 2, 2016 — at a meeting where he also discussed how he would win Michigan — and the propaganda efforts implicating Ukraine that got the President impeached.

The report has a forty page section describing “Manafort’s Activities After the Election.”

The narrative starts with Kilimnik attempting to leverage his ties to Manafort (in part exploiting Sam Patten). It then describes some of the events described in the Mueller Report: the December 8, 2016 foldered email, a heavily redacted description of his meeting in Madrid with Georgiy Oganov, Konstantin Kilimnik’s trip to the inauguration where he had a meeting with Manafort he kept secret from Patten, a second meeting in Madrid — this time with Kilimnik — where they discussed how to undermine the narrative about Russia.

Then it takes a seeming deviation, spending sixteen pages describing Russia’s efforts — significantly led by Kilimnik — to undermine investigations into Russian interference. Much of this is unredacted. But a section describing Kilimnik’s follow-up contact with US Government officials and including descriptions of John Solomon’s propaganda is heavily redacted.

Then the narrative returns to Manafort and Kilimnik’s joint efforts to carve up Ukraine for Russia. The SSCI Report introduces an eight page section — which is almost entirely redacted save two mentions of Andrii Telizhenko’s role in the effort — by describing Kilimnik’s parallel efforts to blame Ukraine for the 2016 interference and to bring back Yanukovych.

Kilimnik, however, continued efforts to reestablish Yanukovych as part of a peace settlement. Kilimnik worked with associates inside Russia, Ukraine, and elsewhere to affect U.S. perceptions of the conflict in Ukraine. These plans blended Kilimnik’s efforts to bring about Yanukovych’s return-including his exoneration related to the violence in the Maydan in February 2014—with the aforementioned themes promoting the narrative that Ukraine, not Russia, had interfered in the 2016 U.S. elections .

The inclusion of Telizhenko and Solomon in this discussion — right in the middle of a long discussion of Manafort’s ties to Kilimnik — definitively tie the events leading up to impeachment and Ron Johnson’s current efforts to spew Russian disinformation to Manafort’s efforts with Kilimnik.

This is part of a section that Ron Wyden complained, in his separate views on the report, was overly classified.

(U) Unfortunately, significant aspects of this story remain hidden from the American public. Information related to Manafort’s interactions with Kilimnik, particularly in April 2016, are the subject of extensive redactions. Evidence connecting Kilimnik to the GRU’s hack-and- . . leak operations are likewise redacted, as are indications of Manafort’s own connections to those operations. There are redactions to important new information with regard to Manafort’s meeting in Madrid with a representative of Oleg Deripaska. The report also includes extensive information on Deripaska, a proxy for Russian intelligence and an associate of Manafort. Unfortunately, much of that information is redacted as well.

(U) The report is of urgent concern to the American people, in part due to its relevance to the 2020 election and Russia’s ongoing influence activities. The public version of the report details how Kilimnik disseminated propaganda claiming Ukrainian interference in the 2016 election, beginning even before that election and continuing into late 2019. [redacted sentence] And the report includes information on the role of other Russian government proxies and personas in spreading false narratives about Ukrainian interference in the U.S. election. This propaganda, pushed by a Russian intelligence officer and other Russian proxies, was the basis on which Donald Trump sought to extort the current government of Ukraine into providing assistance to his reelection efforts and was at the center of Trump’s impeachment and Senate trial. That is one of the reasons why the extensive redactions in this section of the report are so deeply problematic. Only when the American people are informed about the role of an adversary in concocting and disseminating disinformation can they make democratic choices free of foreign interference.

(U) As the Committee stressed .in Volume 3 of its investigation, the public must be informed as soon as possible about ongoing foreign influence campaigns. The American people are not served by aggressive redactions to a narrative describing the continuity of Russian interference before and after the 2016 election. The American people also deserve better than a double standard in which information related to Russian interference in U.S. elections remains heavily redacted while information that might cast doubton investigations into that interference is released wholesale.

After a short description of Manafort’s discussions of the investigations with Rick Gates, the Report begins an entirely new, thirty-some page section detailing Manafort’s ties — through Deripaska — to Russian intelligence, specifically GRU. That’s another section that Wyden complained was overly redacted.

I’m not aware of any place where the Report describes a document, seemingly titled with the date, August 27, 2018 (but with a last modification date of May 15, 2018), describing “Info.”

The document was revealed as part of Manafort’s breach determination Judge Amy Berman Jackson has been mulling how much of this to unseal for over a month.

In any case, Paula Manafort and Konstantin Kilimnik appear to have been planning something for August 27, 2018.

Which is interesting, given something disclosed in the last two Mueller FOIA releases. On August 21, 2018, Marshals at the Alexandria jail informed the Sheriff that a laptop provided to Paul Manafort for legal review had had its administrative password changed. That same day, per the Sheriff’s office, someone brought Manafort two USB drives. One — marked “Blank” — had a bunch of hidden files in its trash folder.

The day a jury found Manafort guilty of his VA crimes, someone helped sneak files to Manafort. That also happens to be just a week before whatever event Manafort had been planning back in May was scheduled.

And for some reason, even though they learned he was still conspiring from jail, Mueller’s team went ahead and signed a cooperation agreement with the guy.

And yet, after multiple instances where Manafort’s jailers discovered he was communicating covertly from prison, Bill Barr’s DOJ used COVID as an excuse to release him from a prison with no COVID cases, and put him in home confinement. It’s not just that Billy Barr has made sure that Manafort won’t face his full punishment for money laundering and cheating on his taxes. It’s that Barr has made it easier for a guy with abundant ties to Russian intelligence to continue communicating with Russian intelligence.

There’s one other detail in the SSCI Report that makes all of this much more interesting: Just before Manafort snuck off to meet with Kilimnik on August 2, 2016 to share his campaign strategy and discuss carving up Ukraine to Russia’s liking, Manafort had a meeting at Trump Tower with Rudy Giuliani and Donald Trump.

Billy Barr Signs a Memo That Wouldn’t Have Helped Carter Page

September 2, 2020/2 Comments/in 2016 Presidential Election, FISA, Mueller Probe /by emptywheel

For eight months, FBI and DOJ have been diligently making changes to the way they do FISA applications, with regular reports into the FISA Court. Whether or not those changes are adequate to fix the problems that beset the Carter Page application, they represent significant effort.

Curiously, a memo Billy Barr just released purporting to enhance compliance in FISA applications appears unaware of the filings at FISC, and instead cites only changes implemented in Christopher Wray’s response to the December 9, 2019 DOJ IG Report (see PDF 466 for his letter).

Therefore, in order to address concerns identified in the report by the Inspector General of the Department of Justice entitled, “Review of Four FISA Applications and Other Aspects of the FBI ‘s Crossfire Hurricane Investigation” (December 2019), and to build on the important reforms described by the Director of the Federal Bureau of Investigation (“FBI”) in his December 6, 2019, response to the Inspector General’s report, I hereby direct that the following additional steps be taken:

Arguably (as I’ll show), at least one of the provisions in the memo is weaker than a change FISC mandated itself.

And while the memo claims to want to protect the rights of people like Carter Page, Barr’s memo would in no way apply to Page. That’s because the special protections tied to political campaigns only apply to those currently associated with campaigns.

With respect to applications for authorization to conduct electronic surveillance or physical searches pursuant to FISA targeting (i) a federal elected official or staff members of the elected official, or (ii) an individual who is a declared candidate for federal elected office or staff members or advisors of such candidate’s campaign (including any person who has been publicly announced by a campaign as a staff member or member of an official campaign advisory committee or group, or any person who is an informal advisor to the campaign),

By the time FBI applied for a FISA application targeting Page, several prominent members of the campaign had dissociated the campaign from him — for his controversial ties to Russia! — in no uncertain terms; those disavowals were included in the FISA application. Yes, Page had been announced as an informal advisor, but then the campaign made very clear he was no longer an informal advisor (and even claimed he never had been).

To be sure, some of the changes proposed — both those limited to those connected with a campaign and the more general ones — are improvements. For example:

¶3(b) requires non-delegable sign-off by the Director of the FBI and the Attorney General) of any application targeting someone associated with a campaign; while requiring non-delegable sign-off may introduce some problems, this is the kind of certification recommended by the DOJ IG Report (though arguably is already incorporated in the December 6, 2019 letter Barr cited).
¶3(d) and ¶3(e) institutes a shorter renewal deadline for these political FISAs, 60 days instead of 90, and requires monthly reports to FISC describing the results and affirming the continued need for such surveillance. These are arbitrary but perhaps useful improvements, not least because by increasing the paperwork required to surveil a political target, they make it more likely that such surveillance will actually be worth it (as the third and fourth applications targeting Page were not).
¶3(f) requires that any political application describe whether less intrusive investigative procedures have been considered — something already required in all FISA applications — and an explanation why those procedures weren’t used. Such a requirement would have been useful in Page’s case (as I noted last year), because it would have emphasized the efforts FBI was making not to take public actions, but in practice this response would almost always point to DOJ guidelines on avoiding taking public actions that might affect an election and might actually encourage the increased reliance on informants, something Trump’s people claim equates to FISA surveillance. A requirement like this might be useful if it took place in the scope of a debate about what techniques were intrusive or not, but there’s zero evidence such a debate has happened.

The memo has two parts on defensive briefings, probably designed to placate Republicans, but which likely don’t do much in practice:

For political targets, ¶3(a) requires the FBI Director to consider a defensive briefing before targeting someone, and if no briefing is given, then the Director must document it in writing. FBI did consider defensive briefings for Trump’s people, but for various reasons decided not to do it, but in the case of Carter Page, he had long been wittingly sharing non-public information with known Russian intelligence officers and when FBI tried to explain why such dalliances were problematic in March 2017, he simply disagreed. A defensive briefing for Page would have been as useless as President Obama’s warnings to Trump that Mike Flynn was a problem.
For all counterintelligence concerns pertaining to election interference, ¶4 requires the FBI Director to “promulgate procedures, in consultation with the Deputy Attorney General, concerning defensive briefings.” Not only is this requirement utterly silent about what such procedures should do, not only did Wray commit to a similar recommendation in his December 2019 letter, but defensive briefings are precisely what Acting Director of National Intelligence John Ratcliffe is currently politicizing.

As for key review processes mandated by the memo, some are just redundant at best or stupid at worst. For example:

¶1 requires FBI personnel to review the accuracy sub-file before submitting a FISA application. That process is already in place. It’s called the Woods Procedure and it’s the procedure that failed to find errors in the Page application.
¶2 requires someone — it doesn’t say whether FBI or NSD bears responsibility — to report any misstatement or omission to FISC. That’s already required. Plus, this requirement twice gives NSD the authority to determine whether something amounts to a reportable incident. The ongoing DOJ IG investigation into all the errors in FISA applications suggest NSD has deemed some omissions and errors not to be worthwhile of reporting (indeed, there were multiple instances in the Page applications where NSD did not include information they knew of, in at least one case information that FBI did not have). In short, this paragraph seems more focused on ensuring NSD — and not an outside entity, like DOJ IG or the FISC — retains the ability to determine what is and is not a reportable error.
¶3(c) requires an FBI Assistant Special Agent in Charge who is not involved in an investigation to review the FISA application of any defined political targets. The DOJ IG Report found that even NSD lawyers involved in an investigation don’t have enough insight into a case to identify omissions. While an ASAC might have access to case files that NSD lawyers do not, there’s zero reason to believe someone with even less insight into an investigation would better be able to spot omissions than an NSD lawyer with an ongoing role in the application. So this review is likely useless busywork.
¶3(g) requires the Assistant Attorney General to review the case file of a political target within 60 days of its initial grant to make sure everything is kosher, including that the investigation was properly predicated. In conjunction with the shorter renewal timeframe of such applications (which would require DAG sign-off in any case), all this amounts to is a heightened review on first renewal (the memo does not say this is not delegable, so such a review will and probably should not be done by the AAG). But in Page’s case, it would have done nothing (indeed, at the time this would have been done for Page, he was in Russia meeting high level officials, falsely claiming to represent Trump’s interests).

In short, while some of these changes are salutary, a number are just show, and some are worthless busy work.

But my real concern about them — particularly given how Barr only invokes the first Christopher Wray letter to DOJ IG — is how they interact with other details of the FISA reform events that have transpired since last December.

For example, in the last month, the FBI and DOJ engaged in a big dog-and-pony show to claim that none of the errors DOJ IG had identified in 29 FISA applications they reviewed affected probable cause and just two were material. Effectively, that big press push amounted to having NSD pre-empt DOJ IG’s findings in an ongoing investigation, and the public details of NSD’s own review raise abundant reason to doubt the rigor of it. So Barr’s emphasis (in ¶2) on NSD’s role in deciding what is an error seems to be a reassertion of the status quo ante in the midst of an ongoing investigation that is still assessing whether NSD’s reviews are adequate. That makes this feel like another attempt to pre-empt an ongoing investigation.

Even more troubling, Barr’s memo seems unaware of — and in key respects, conflicts with — an order presiding FISA Judge James Boasberg issued in March. As I noted at the time, that order recognized something that was apparent from the DOJ IG Report but which the IG either missed, ignored, or was bureaucratically unable to address: it wasn’t just FBI that dropped the ball on the Page FISA application, NSD did so too.

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

Because of that, Boasberg required that DOJ attorneys, too, sign off on all FISA applications, and suggested they get more involved earlier in the process.

As a result, reminders of DOJ’s obligation to meet the heightened duty of candor to the FISC appear warranted. The Court is therefore directing that any attorney submitting a FISA application make the following representation: “To the best of my knowledge, this application fairly reflects all information that might reasonably call into question the accuracy of the information or the reasonableness of any FBI assessments in the application, or otherwise raise doubts about the requested probable cause findings.”

DOJ should also consider whether its attorneys need more formalized guidance – e.g. , their own due-diligence checklists. Consideration should also be given to the potential benefits of DOJ attorney visits to field offices to meet with case agents and review investigative files themselves, at least in select cases – e.g. , initial applications for U.S.-person targets. Increased interaction between DOJ attorneys and FBI case agents during the preparatory process should not only improve accuracy in individual cases but also likely foster a common understanding of how to satisfy the government’s heightened duty of candor to the FISC.

There’s no mention of Boasberg’s order and suggestions in Barr’s memo, and it’s unclear whether that’s because he has no idea what has transpired with the FISC, whether he thinks he can ignore Boasberg’s order, or whether his memo is just for show. In any case, it’s notable that Barr’s memo doesn’t incorporate the key insight Boasberg made, that FISA requires increased diligence from NSD, too.

Similarly, because Boasberg deemed the role of FBI’s lawyers to be “perfunctory,” he asked for more details about their role.

But the role described in the revised Woods Form appears largely 10 perfunctory. To assess whether additional modifications to the Woods Form or related procedures may be warranted, the Court is directing the FBI to describe the current responsibilities FBI OGC lawyers have throughout the FISA process.

Here, Barr has added one more FBI person (an ASAC uninvolved in the case) to the process, whose review can only be perfunctory, rather than ensuring that those with more visibility on the process have a substantive role. Barr also doesn’t incorporate into his memo a change that came from Amicus David Kris after the Wray letter cited in Barr’s memo that case agents attest to the accuracy of FISA reviews, a recommendation FBI adopted, which might accomplish more than any review by an outside ASAC.

There’s one more reason this memo is concerning. ABC reported the other day that long-time Deputy Assistant Attorney General for Legal Policy Brad Wiegmann was reassigned two weeks ago and replaced by a far less experienced political appointee, Kellen Dwyer (though I’ve seen people vouch for his integrity — he’s not a hack). Wiegmann would likely be part of discussions about how to meet FISC’s demands for further accountability.

Though a relatively small unit of fewer than two dozen attorneys, the Office of Law and Policy participates in almost every National Security Council meeting, works with congressional staff to draft new legislation, and conducts oversight of the FBI’s intelligence-gathering activities.

“[It] has been sort of the center of gravity for the Department of Justice on national security policy, and it’s a central role,” said Olsen, who at one point ran the department’s National Security Division and later advised Hillary Clinton’s 2016 presidential campaign.

Wiegmann has led the office since the Obama administration and for almost all of the Trump administration.

In particular, Wiegmann has long been involved in efforts to meet FISC’s demands regarding surveillance it authorizes. Here, just days after Wiegmann’s removal, Barr is issuing a memo that seems unaware of and in at least a few respects, potentially inconsistent with, explicit orders from the presiding FISA Judge.

There’s nothing obviously offensive about this memo. But it would do little to prevent a repeat of the Carter Page problems. And it’s not clear that it adds anything to the very real efforts to improve the FISA process at DOJ. Indeed, it may well be an effort to pre-empt more substantive concerns about the role of NSD (as opposed to FBI) in this process.

Barr released a second memo creating an audit mechanism for national security functions that feels like an effort to get ahead of ongoing DOJ IG investigation. I welcome additional oversight of FBI’s national security functions, though the timing of this and the timing of its implementation — with a report on its creation due just days before the election but all review of its functionality years down the road — feels like an attempt to stave off real legal oversight.

Emmet Sullivan’s “Appropriate Dispatch” May Extend past November 3

September 1, 2020/24 Comments/in 2016 Presidential Election, Mueller Probe /by emptywheel

As noted, yesterday the DC Circuit rejected Mike Flynn’s request that they order Judge Emmet Sullivan to grant the motion to dismiss requested by the government. While the per curiam opinion deferred to Sullivan to resolve the motion to dismiss and left him on the case, the last line of the majority opinion ordered Sullivan to hurry things along.

As the underlying criminal case resumes in the District Court, we trust and expect the District Court to proceed with appropriate dispatch.

Today, in an order effectively written immediately after the Circuit Court order, Judge Sullivan instructed the two sides to resume the process he set back before Flynn moved for a writ of mandamus.

In light of the Opinion and Order issued by the Court of Appeals on August 31, 2020 and Circuit Rule 41(a)(3), which states that an order denying mandamus relief “will become effective automatically 21 days after issuance in the absence of an order or other special direction… to the contrary,” the parties are directed to file a joint status report with a recommendation for further proceedings by no later than September 21, 2020. The parties’ joint status report shall propose a briefing schedule regarding the deadlines for (1) the government and Mr. Flynn to file any sur-reply briefs; and (2) the government, Mr. Flynn, and the Court-appointed amicus curiae to file a consolidated response to any amicus brief of non-Court-appointed amicus curiae. It is FURTHER ORDERED that the parties shall propose three dates and times to hold oral argument. If the parties are unable to agree on a joint recommendation, the joint status report shall include each party’s individual recommendations.

In legal terms, the order requiring a status report on September 21 is also an immediate action. Circuit Court orders don’t go into effect for 21 days, in part to give the parties an opportunity to appeal. So Sullivan couldn’t require any action before September 21. It asks the parties to act immediately.

But it might well stretch past November 3, in any case. At the very least, it might force Billy Barr’s DOJ to explain why they lied to Sullivan to justify blowing up the prosecution of a guy who lied for Trump’s benefit during the last weeks of the election season.

Back when Sullivan laid out the process that the DC Circuit just let him continue on May 19, he gave amicus John Gleeson 21 days to file his opening brief, then a week for each response, with a surreply granted to Flynn and the government from the start.

MINUTE ORDER as to MICHAEL T. FLYNN granting 209 Motion to File Amicus Brief. The following schedule shall govern the proceedings in this case subject to a motion for reconsideration, for good cause shown, filed by no later than 12:00 PM on May 26, 2020: (1) the Court-appointed amicus curiae shall file the amicus brief by no later than 12:00 PM on June 10, 2020; (2) any motion seeking leave to file an amicus brief by non-Court-appointed amicus curiae shall be filed by no later than 12:00 PM on June 10, 2020; (3) the government and Mr. Flynn shall file their responses to the amicus brief of the Court-appointed amicus curiae by no later than 12:00 PM on June 17, 2020; (4) the Court-appointed amicus curiae shall file a reply brief by no later than 12:00 PM on June 24, 2020; (5) the government and Mr. Flynn shall file any sur-reply briefs by no later than 12:00 PM on June 26, 2020; and (6) the government, Mr. Flynn, and the Court-appointed amicus curiae shall file a consolidated response to any amicus brief of non-Court-appointed amicus curiae by no later than 12:00 PM on July 2, 2020. Movants seeking leave to file an amicus brief are HEREBY NOTIFIED that the Court will deny any motion for leave to file an amicus brief that fails to strictly comply with the applicable Local Rules. It is FURTHER ORDERED that the Court schedules oral argument for July 16, 2020 at 11:00 AM in Courtroom 24A.

The initial briefs have been submitted, and Gleeson completed it, but did not submit it because it would have been posted on the day Neomi Rao initially upheld Flynn’s petition for a writ.

So Gleeson could presumably submit his reply brief on September 21, and the government and Flynn could — and presumably would want to — submit their surreply two days later, on September 23.

But Sullivan also included time in the original order for the two sides to reply to the other amicus briefs (some of which support Flynn and the government). He originally provided 8 days for that to happen, or 6 after the surreply.

If the parties used the same amount of time, it would put that deadline on September 29.

But — again, according to the original schedule — the hearing would not have happened until two weeks later. According to this schedule, that would put any hearing on October 13. That would put the hearing just three weeks before the Presidential election on November 3, lightening fast for the kind of meticulous opinions Sullivan has written earlier in this case.

By all appearances, Sullivan is responding with appropriate dispatch, as ordered by the Circuit, implementing his prior schedule on the quickest possible track given the earlier deadlines. But appropriate dispatch might still drag this thing out until it becomes clear whether Donald Trump will remain President.

[In parallel news, the Second Circuit has issued a stay on Cy Vance’s subpoena for Trump’s tax returns, and that is virtually guaranteed to drag out past the election as well.]