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Bill Barr Didn’t Hear When Trump Asked, “Russia Are You Listening?”

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One of the most surprising details in the book by former Mueller prosecutors, including Aaron Zebley, is that they added a contentious half paragraph the morning they finished the report.

For volume I, we discussed one last time whether the report was sufficiently clear about “coordination” with Russia. One of the sticking points: on July 27, 2016, Trump had made his “Russia, if you’re listening” speech urging Russia to find Clinton’s “missing” emails. Five hours later, the Russian GRU launched attacks into the Clinton team’s personal email accounts. This appeared to be Russia’s response to Trump’s speech.

Bob had tied our work to established criminal standards. We did not view this “call and response”—Trump’s publicly asking for an action and then Russia taking one—as sufficient for a criminal agreement or conspiracy. But without more explanation, we were concerned a reader might not understand why these July 27 events did not constitute “coordination.” That morning, we added a paragraph to the introduction to volume I to make our reasoning clearer (emphasis added):

“Coordination” does not have a settled definition in federal criminal law. We understood coordination to require an agreement—tacit or express—between the Trump Campaign and the Russian government on election interference. That requires more than the two parties taking actions that were informed by or responsive to the other’s actions or interest. We applied the term coordination in that sense when stating that the investigation did not establish that Trump campaign coordinated with the Russian government in its election-interference activities.

There’s more to this paragraph: it starts by explaining why prosecutors didn’t assess Trump’s actions in terms of “collusion,” another term that’s not a crime. Unlike “collusion,” though, “coordination” was included in Rod Rosenstein’s appointment order. As a prosecution and declination report, Mueller had to (and did) assess conduct in terms of law, not buzzwords or Rosenstein’s ill-considered measures.

Rather than providing clarity, this paragraph made things worse, because those who had spent years talking about “collusion,” incorrectly claimed the report had addressed it. No collusion!!! All the headlines blared. No collusion!!! Bill Barr keeps claiming.

In fact, as the book describes it, prosecutors added the coordination language, at least, not to expand the scope of the report (to include terms people used to describe it), but to address how they approached what the book calls “call-and-response:” when Russia and Trump’s campaign worked in concert without formally agreeing to do so.

Of late, I’ve come to understand this “call-and-response” structure as Russia’s effort to lock Trump in, ensuring a benefit to itself, in his compromise and America’s polarization, whether or not he took the actions Russia would prefer.

There’s a sad irony here. Prosecutors thought that the “are you listening” comment was so outrageous, they needed to explain why it was nevertheless not a crime, because of course must appear outrageous to everyone else.

But in reality, it didn’t appear to their bosses at all. Both Rod Rosenstein and Bill Barr, for example, repeatedly excised a key part of Mueller’s findings: that Russia was seeking to help Trump and Trump was happy to accept the help from a hostile foreign country.

Rod Rosenstein did so when announcing the Internet Research Agency troll indictment; Rosenstein even ad-libbed a claim that the indictment did not allege the information operation changed the outcome of the election.

One thing we noticed about Rosenstein’s remarks was that he never stated that the defendants’ actions were designed to help Trump and disparage Clinton, even though that was one of the core allegations of the indictment. And at the end of his remarks, he added something that wasn’t in the indictment: “There is no allegation,” he said, “that the charged conduct altered the outcome of the 2016 election.”

Bill Barr didn’t say Russia was trying to help Trump when he informed Congress of his spin of the results.

It omitted or misstated our analysis. In its discussion of volume I, the letter accurately stated our core charging decisions, but left out any reference to the intent of the Russian social media campaign to aid Trump in his bid for the White House, nor did it describe that same objective driving the hack-and-dump operation run by Russian military intelligence. There was no mention of the contacts between members of the Trump campaign and Russian officials and proxies. The letter also left out a core conclusion of volume I: that the “Russian government perceived it would benefit from a Trump presidency and worked to secure the outcome, and that the [Trump] Campaign expected it would benefit electorally from information stolen and released through [Russian military] efforts.

And Barr did it again — refused to say Russia was trying to help Trump — when he gave a press conference with the release of the Report.

[A]s he had in his March 24 letter, he omitted any mention of Russian support for Trump’s election bid. He then described the Russian military intelligence operation to steal and dump Clinton campaign emails, but again omitted the Russian government’s purpose of harming Clinton’s election bid in order to aid Trump. Barr also did not mention our finding that the Trump campaign expected it would benefit electorally from information stolen and released through Russian military intelligence efforts.

He then described the Russian military intelligence operation to steal and dump Clinton campaign emails, but again omitted the Russian government’s purpose of harming Clinton’s election bid in order to aid Trump. Barr also did not mention our finding that the Trump campaign expected it would benefit electorally from information stolen and released through Russian military intelligence efforts.

To be sure, the prosecutors’ larger gripe was always how Barr dealt with volume II. Mueller’s team had decided they would not to make a prosecutorial decision, but Barr spun it as a choice that they could not make such a decision. (My instincts that they deliberately left this for Congress are confirmed by the book.)

But the book tracks how the people overseeing the investigation refused to admit something central to it: Russia wanted to help Trump, and Trump invited that help.

“If it’s what you say I love it especially later in the summer.”

It’s an important observation given what came next. The entire Durham investigation was premised on ignoring Trump’s request for help. Two years later, for example, Barr insisted that the Russian investigation started from the Steele dossier (and astonishingly, Barr dismissed the possibility that Russia would want something in exchange for electing Trump).

Bill Barr and John Durham deliberately kept themselves ignorant of all that. Three years later, Barr continued to insist the investigation arose from the Steele dossier (and, insanely, said that since Russia didn’t need help doing a hack-and-leak, there was no reason to investigate Trump). Durham repeatedly tried to prevent those he charged from describing how Trump’s public comments (and their likely knowledge that another hacking attempted followed the comments) drove their concerns about Trump’s ties to Russia, even though as Marc Elias described, that was the reason they all started to focus on Russia.

Even at the end of his four year investigation, Durham claimed to have no idea that in response to Trump’s comments, Russia attempted to hack a new target.

Of course, Barr and Durham had to ignore Trump’s solicitation of a hack. If they hadn’t, they would never have had an excuse to launch the Durham probe, to pretend that investigating why Trump’s campaign got advance warning of the operation and then goaded it on made total sense. Barr and Durham had to pretend that none of this posed a risk to the country.

For a report for Bill Barr, Mueller added language trying to explain why they didn’t treat Trump’s successful solicitation of an attempted hack against his opponent as a crime.

But Barr, both before, in real time, and for years after, never even considered that a problem. Or couldn’t, because if he did, he couldn’t criminalize Hillary Clinton’s victimization at the hand of Russia.

Bill Barr, “So Far as We Knew”

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As I described, the book written by Aaron Zebley and two of Robert Mueller’s other former prosecutors breaks most new ground in its description of discussions between Mueller’s team, Trump’s lawyers, and those supervising the investigation at DOJ.

As it describes, for months, the investigation was working towards a January 27, 2018 interview of Trump, to be held at Camp David. But shortly after Mike Flynn pled guilty, Trump attorney John Dowd (whose call to Rob Kelner floating a pardon made it into the report but not the book), started getting cold feet. On January 30, Dowd told Jim Quarles, “I can’t let this guy testify. I will resign before he does.” On March 1, Dowd and Jay Sekulow first pitched the idea of written questions. Four days later, Mueller first raised the possibility of a subpoena; Dowd said that would be war. Trump would plead the Fifth before he’d respond to a subpoena.

Three weeks later, Dowd resigned.

On April 18, Sekulow told Quarles that Trump was close to bringing on new lawyers. Of Jane and Marty Raskin, Sekulow spoke of their high stature.

“We are talking to people with high stature to take over the representation,” Sekulow said. “Just finalizing everything now.”

“Good,” Jim said.

“You know them, actually. I think you’ve worked with them in the past. They are like-minded people who share our desire to get to the goal line.”

Of Rudy Giuliani (who was officially disbarred in DC yesterday), Sekulow said he hoped he wouldn’t join the team.

Sekulow continued, “There’s a third person too, but I’m hopeful he won’t join.” He did not divulge this person’s identity.

[snip]

Sekulow then said, “And the third person is, well, America’s Mayor.”

Jim thought for a brief moment. “Rudy?”

“That’s correct,” Sekulow said. “Rudy Giuliani is coming on too.”

Rudy almost immediately ran afoul of the Mueller team.

At a meeting on April 24, there was a discussion about whether Trump even could be charged. Bob told Rudy that “we plan to follow the [OLC] regulations” prohibiting the indictment of a sitting President, though in a way that left wiggle room in case (as the book describes) the team found “evidence proving Trump truly was a Manchurian candidate.” Rudy asked whether Trump was a witness, a subject, or a target; Mueller answered he was a subject.

Giuliani asked, “Is he a subject regardless of the OLC opinion?” In other words, were we not labeling Trump a “target” simply because he couldn’t be indicted? Or was he a subject because there was not enough evidence to make him a target?

Bob said that we had deliberately withheld making a judgment about the president’s conduct, but we would get back to them if we could say more.

In spite of repeated assurances the meeting was confidential, Rudy promptly ran to the press and (per the book, at least) misrepresented what Mueller said. As the book describes, Rudy told journalists that if Trump couldn’t be indicted, he couldn’t be subpoenaed.

That’s all background to the discussion of whether Trump could be charged with obstruction. As the book describes, Trump’s request that Don McGahn make a false statement disclaiming Trump’s effort to replace Mueller involved the creation of a false record in an attempt to obstruct the investigation; it clearly involved creating a false evidentiary record, and so would qualify no matter how you interpret 18 USC 1512(c)(2). But the other obstruction incidents did not (this issue has now been decided by Fischer to require evidentiary impairment, meaning the only obstruction incident that could be charged against Trump, ignoring the immunity opinion, is the McGahn one). So there was an extended dispute, starting in May 2018, which a long chapter discusses at length.

But then, unbeknownst to Mueller, Bill Barr weighed in, writing Rod Rosenstein and OLC head Steven Engel that Mueller’s views on obstruction were wrong.

As the book describes, Barr’s allegedly unsolicited memo was “remarkably timely,” because, from that point forward, Rosenstein’s team seemed to adopt precisely the analysis Barr offered.

We didn’t know it at the time, but just as we were starting our subpoena discussion with the DOJ, another person weighed in with the department on these very issues.

On June 8, 2018, the once-and-future attorney general, William Barr, submitted a nineteen-page memo to Rosenstein and Assistant Attorney General Steven Engel, who was then head of the DOJ’s Office of Legal Counsel. In his memo, Barr argued that section 1512 did not apply to President Trump in the manner Barr imagined we might be seeking to apply it. We say “imagined” because Barr had no actual insight into our work, so far as we knew.

Given that Barr was a private citizen at that time, his memo was remarkably timely. It posited (fairly accurately) that we were then “demanding that the President submit to interrogation about [obstruction] incidents, using the threat of subpoenas to coerce his submission.” Barr’s bottom line was that a prosecutor, even a special counsel, should not be allowed to require an examination of the president regarding these incidents, end of story. According to Barr, section 1512 prohibited only corrupt acts that impaired the integrity or availability of evidence, for instance, an act that destroyed a document or induced a witness to change his testimony. Barr’s memo stated that a president’s conduct can “obviously” be considered obstruction of justice in the “classic sense of sabotaging a proceeding’s truth-finding function. Thus, for example, if a President knowingly… induces a witness to change testimony… then he, like anyone else, commits the act of obstruction.”

But Barr maintained that the obstruction statute did not apply to what he termed the president’s “facially-lawful” actions—such as firing an FBI director or ending a federal criminal prosecution—even if such an action were done with corrupt intent and impacted a grand jury proceeding. In other words, even if Trump fired Comey for a corrupt purpose, that could not be a crime, in Barr’s view.

We wouldn’t become aware of Barr’s memo until December 2018, the day before his Senate confirmation hearing for attorney general. Nevertheless, his memo seemed to capture the fundamental issues Rosenstein and the department would raise throughout that summer when it came to subpoenaing the president. Barr may have previewed the department’s position when he wrote: “It is inconceivable to me that the Department could accept Mueller’s interpretation of 1512(c)(2). It is untenable as a matter of law and cannot provide a legitimate basis for interrogating the President.” [my emphasis]

A couple of points about this.

First, the Zebley book doesn’t address any documents that have subsequently been released. Most notably, while the book discusses the events immediately following the conclusion of the report at length, it doesn’t address Bill Barr’s memo declining prosecution on obstruction (the chapter on Barr’s letter to Congress is called “The Barr Report”), even though Barr egregiously avoided comment on the pardons that Trump was using to silence Mike Flynn, Paul Manafort, and Roger Stone.

Similarly, it doesn’t address the communications with OLC that were liberated via FOIA. Those show that starting on July 12 — the day before the GRU indictment incorporating reference to Roger Stone — Ed O’Callaghan shared everything that went between Mueller and Trump’s lawyers with Engel who, like Rosenstein, got the Barr obstruction memo, and along with O’Callaghan would “advise” Barr to release his letter to Congress. Starting on July 26, National Security Division head John Demers got added. Those things, taken together, strongly suggest that OLC was involved from the start to find a way to find that Trump couldn’t be charged (remember that Engel did similar cover-up work during impeachment).

All that is not that suspicious if, indeed, “Barr had no actual insight into our work.”

“So far as we knew.”

But it would be if Barr did have actual insight into what Mueller was doing.

LOLGOP and I are hard at work on our Ball of Thread episode on precisely how Bill Barr killed the Mueller investigation. And in that context, I’ve returned to something I’ve puzzled over for years: Barr’s description, in his book, of his decision to return to government with the intent of killing the Mueller investigation and starting an investigation without a crime, the Durham investigation.

I would soon make the difficult decision to go back into government in large part because I saw the way the President’s adversaries had enmeshed the Department of Justice in this phony scandal and were using it to hobble his administration. Once in office, it occupied much of my time for the first six months of my tenure. It was at the heart of my most controversial decisions. Even after dealing with the Mueller report, I still had to launch US Attorney John Durham’s investigation into the genesis of this bogus scandal. At the end of my first year in office, the President was impeached over a harebrained effort, involving Rudy Giuliani, to push back on the Russia collusion canard by digging up an alleged counter-scandal in Ukraine implicating the Clinton campaign or Vice President Biden and his son Hunter.

The fallout from Russiagate continued during my last year in office. My relationship with the President frayed as he became frustrated by my failure to bring charges against those who had ginned up Russiagate and the failure of Durham’s investigation to produce more rapid results.

I’ve always believed — even already taped for the podcast my belief — that you need no more than Barr’s reactionary views (which happen to match those of several SCOTUS justices), his past work obstructing Iran-Contra, and years of submersion in Fox News propaganda to explain his actions. Just like you need no more than Trump’s narcissism to explain his actions, you need no more than those three characteristics of Barr to explain his willingness to chase Russian disinformation in his effort to kill concerns about Trump’s ties to  Russia.

You need no more to explain their actions, but I can never shake the possibility there’s more.

All the more so given Lev Parnas’ claim, in interviews after the release of From Russia with Lev, that Victoria Toensing got Barr hired.

Now, Parnas’ reference — and his visibility on interactions between Toensing, Rudy, and Barr — post-dates Barr’s June 2018 memo. He’s talking about Toensing’s assurances to Trump, after he fired Jeff Sessions, that Barr would make the Mueller investigation go away (though if Toensing made that assurance, the Ukraine stuff looks far different, as does Barr’s treatment of it as a mere “counter-scandal”).

But Toensing was involved in the effort to make the Mueller investigation go away far earlier.

She represented Sam Clovis (who was interviewed, without an attorney, in two parts on October 3, 2017, and interviewed, including before a grand jury, with Toensing, on October 26, 2017). George Papadopoulos probably told Clovis that Russia had Hillary’s emails and Clovis was involved in Papadopoulos’ apparent discussions about setting up a September 2016 meeting with Russia, but Clovis testified that he had no memory of either of those things. And she represented Erik Prince (who was interviewed on April 4 and May 3, 2018) — who, like Steve Bannon, deleted their texts to each other from during the period when Prince was meeting with Kirill Dmitriev in the Seychelles, but has no memory of doing so.

Indeed, Toensing’s spouse, Joe DiGenova, even briefly said he was representing Trump, during that transition where Rudy got added. During his Ukraine caper a year later, Rudy repeatedly proposed that he do the work while Toensing billed for it. So if you got Rudy, you got Toensing.

And if Toensing later was involved in getting Barr hired, it would be unsurprising if she was a contact with him before that.

Incidentally, Barr never once mentions Toensing in his book. He mentions Rudy, who is a central focus of his book, around 44 times. He exercised his right to remain silent about Toensing.

In a follow-up, I’m going to talk (again) about the blind spot that connects the Mueller investigation and the Durham investigation — the blind spot at the core of Bill Barr’s effort to cover up Trump’s ties to Russia.

For now, though, consider the possibility that Barr had a great deal more insight into the Mueller investigation when he wrote that memo than he let on.

Scott Schools Got the [Trump Subpoena] Memo — Then Left DOJ

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As noted, while the book by Aaron Zebley et al does not reveal a single new detail from the Russian investigation, it provided a bunch of new details on discussions between Mueller’s team, Trump’s lawyers, and DOJ. Two chapters focus almost entirely on discussions about an interview and, after Trump’s new legal team in May 2018, reversed earlier assurances Trump would sit for an interview, discussions about a subpoena.

The book describes how, after getting nowhere with requests for a voluntary interview, Zebley approached Scott Schools (then the senior non-political appointment at DOJ) about subpoenaing Trump. Schools asked for a memo making the case.

Three days after Mueller delivered it, Schools left DOJ.

Bob’s May 16 letter about the importance of an interview did not get an immediate response from Trump’s lawyers. Instead, after a series of emails, calls, and meetings during the ensuing weeks, the Raskins told us that they would agree to an interview on preelection Russia-related topics only. There could be no questions on obstruction. Bob rejected this proposal.

By the end of June, it was becoming clear that a subpoena might be the only way to secure the president’s testimony on obstruction. Aaron called Schools at the DOJ and relayed the president’s latest position. Aaron explained that “evidence from the president is likely to be of significant value to our evaluation of the issues.”

Schools did not immediately respond, so Aaron continued: “If we can’t negotiate a resolution, we’d like to point to a subpoena as our next step.” Aaron told Schools we wanted the department to agree to enforce a subpoena in the courts, including the Supreme Court if it came to that. “We have written materials that go through the evidence and our analysis” as to why a subpoena was necessary and appropriate, Aaron said.

Schools responded in his muted southern drawl, “Think we’ll want to see those.”

Four days later, on July 3, we delivered to Schools and O’Callaghan a memo, “Preliminary Assessment of Obstruction Evidence,” with a set of supporting documents. The takeaway was on page 1: the president had refused an interview; we had gathered significant evidence on obstruction and had determined that the law enabled us to compel the president’s testimony; and, finally, “we have concluded that the issuance of a subpoena is justified.” There was no immediate response from the department. (On July 6, 2018, after a decades-long career at the Department of Justice, Schools left to take a job in the private sector.)

There’s no evidence, here, that the memo was the reason Schools left, apparently with no notice to Mueller’s team.

But eight months later, in advance of the first meeting between Mueller and Barr, Ed O’Callaghan probed what would appear in the report on obstruction.

He specifically referred to the memo justifying the subpoena as “aggressive.”

We knew that one of the main issues for our March 5 meeting with Barr would be obstruction of justice. In the days leading up to the meeting, O’Callaghan had asked Aaron how we planned to handle our obstruction findings. “Will your report be as aggressive as your legal analysis from last summer?” he asked, referring to the memo we submitted in July 2018 about a subpoena for the president’s testimony. “That is a topic we want to discuss.”

As it happens, almost immediately after Mueller gave DOJ the memo in June 2018, according to files released under FOIA, they pulled in Office of Legal Counsel and (at least for a few meetings), National Security Division. It’s not entirely clear Mueller’s team realized Rod Rosenstein’s people were doing that.

Don’t Make the Same Mistake with Iran that Denialists Made with Russia

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I read the book by Aaron Zebley, James Quarles, and Andrew Goldstein on the Mueller investigation. Regarding the investigation itself, there were no new details. Where the book does break new ground is in describing the discussions with Trump’s attorneys and DOJ officials, especially with regards to the debate about whether to subpoena Trump. I’ll return to those details in a follow-up.

But I want to point to something they said in their afterward. They describe that Barr’s treatment of the report helped sow doubt about the import of the Russian attack on US democracy in 2016.

Perhaps the most significant casualty of Barr’s handling of the report was the truth about Russia’s attack on the United States during the 2016 election. The Russian government interfered in our democracy in sweeping and systematic fashion. Those are the first substantive words of our report. This statement is beyond dispute, and yet many in America do not know that, and still others deny it.

As detailed in volume I of our report, Russian operatives working for the Internet Research Agency visited the United States in 2014 to gather intelligence for what they called “information warfare” against the United States. They returned to Russia and—sitting at their desks in Saint Petersburg—planned and advertised rallies to support Trump at specific US locations, invited Americans to attend, provided banners for Americans to wave, and then handed off logistical responsibilities for the events to real Americans. The goal of these activities, along with their yearslong campaign of false-name social media accounts, was to further divide Americans and cause them to think and behave in particular ways—including at the voting booth in 2016.

Meanwhile, Russian military intelligence hacked into email accounts belonging to the Democratic team supporting Hillary Clinton in 2016, and then dumped emails and other documents they had stolen at specific times during the campaign to harm Clinton and bolster Trump. The Russians also leveraged WikiLeaks to release the stolen information, and, like the Russians, WikiLeaks timed its releases to favor Trump’s candidacy.

While these operations were underway, Russian government officials and their proxies reached out to multiple Trump campaign officials. George Papadopoulos was one example. A month after Trump appointed him as a foreign policy adviser in March 2016, Papadopoulos received word about a Russian government offer to assist the Trump campaign through the anonymous release of information information damaging to Clinton—“dirt” in the form of “thousands of emails.” This offer coincided with the Russian military’s then secret hack-and-dump operation.

It is beyond dispute that the Russians interfered in the 2016 election to support Trump—that was no hoax. They worked to secure his win. Our investigation of this work was no witch hunt.

[snip]

It has not seemed to matter, for instance, that our hack-and-dump indictment, which was backed by financial, email, and other records, demonstrated irrefutably that the Russian military executed this operation. Three days after the indictment came out, Trump dismissed it all in a press conference in Helsinki, Finland, after Putin—standing a few feet to Trump’s left—told him, “It’s not Russia.” Trump and his advocates declared it all a hoax, taking Putin’s word over the plain facts. And millions of Americans have taken this as truth, siding with Kremlin propaganda over the US Department of Justice.

We are now heading into another election. Russia interfered before, Russia is emboldened, and Russia is interfering again. Bob described Russia’s actions as one of the most serious attacks on democracy he has seen in his career—chilling words from the person who helped lead America’s fight against terrorism following the 9/11 attacks. As he put it in his 2019 testimony, the Russians are interfering in our democracy “as we sit here, and they expect to do it during the next campaign.”

I’ve obviously written a lot about this. It’s the central focus of the Ball of Threads podcast that LOLGOP and I are doing.

I fear that, because of the polarization Trump has deliberately stoked, many lefties are doing the same thing that Trump’s MAGAts did with Russia: treat credible allegations that Iran is targeting him, both for hacking and assassination, as a hoax.

Regarding the hacking, as happened in 2016, it is not just the Intelligence Community (one, two) attributing the hack in real time. Both Microsoft and Google have described the operation. As I explained repeatedly regarding the 2016 Russian attack, big American tech companies have a similar kind of global reach as the NSA, and when someone uses their infrastructure to target someone, they have both the tools and an independent incentive to get the attribution right. There’s really no reason to doubt the attribution, from three of the entities with the best global reach in the world, that Iran targeted Trump’s campaign.

Regarding Iran’s attempt to assassinate Trump, there’s also no reason to doubt that. While the case against Asif Merchant, whom DOJ accused of trying to solicit a variety of operations targeting Trump, does rely on undercover FBI employees posing as wannabe hitmen, the underlying tip — from the guy Merchant allegedly asked for help recruiting a hit team — appears to be organic, just someone calling the cops. Plus, the effort bears certain resemblance to the effort to solicit assassins for John Bolton, arising from the same motive of revenge for the Qassem Soleimani killing.

According to court documents, on Oct. 22, 2021, Poursafi asked Individual A, a U.S. resident whom Poursafi previously met online, to take photographs of the former National Security Advisor, claiming the photographs were for a book Poursafi was writing. Individual A told Poursafi that he/she could introduce Poursafi to another person who would take the pictures for $5,000-$10,000. Individual A later introduced Poursafi to an associate (referred to in court documents as the confidential human source or CHS).

On Nov. 9, 2021, Poursafi contacted the CHS on an encrypted messaging application, and then directed the CHS to a second encrypted messaging application for further communications. Poursafi offered the CHS $250,000 to hire someone to “eliminate” the former National Security Advisor. This amount would later be negotiated up to $300,000. Poursafi added that he had an additional “job,” for which he would pay $1 million.

As I noted in my first post on the Merchant arrest, the Pakistani man took 20 minutes before he let the FBI in to arrest him, meaning he may have had time to destroy evidence. There’s no reason to assume Merchant’s efforts to hire assassins was limited to the NYC source who called the FBI, nor is there reason to assume that Merchant was the only one recruiting assassins.

Indeed, as I keep noting, we can’t rule out that Ryan Routh (who was indicted yesterday and will face trial before Aileen Cannon, and whose son was arrested Monday after the FBI found CSAM at his house while conducting a search presumably related to his father) was recruited by Iran. His sympathy for Iran and his antipathy for Trump were both public, he imagined himself a fighter, and he had international ties from his efforts to recruit fighters for Ukraine. Both the Bolton efforts and the Merchant plot relied on secure digital operational security, and the six phones Routh had in his truck indicate he was communicating in unusual ways, even for — especially for — a person with possible mental illness. And the timing of Routh’s movements — he left North Carolina August 14 and traveled to Florida, scoped out Trump events in August, September, and October, and conducted reconnaissance for much of the month leading up to his arrest — match the planned timing of the Merchant plot. For a variety of reasons (not least that Routh has due process rights and an incentive to flip, if he did have co-conspirators), if the FBI did suspect an Iranian tie, they wouldn’t say more than they already have done, including references to Iran in his detention memo.

In the wake of Routh’s indictment yesterday, the IC briefed Trump on ongoing assassination threats from Iran. And while his comments to Fox — suggesting that Kamala Harris was weak on Iran — were typical Trump garbage, Trump’s Xitter account posted something that — for him — is downright gracious, recognizing the bipartisan support to expand Secret Service funding.

It is perfectly reasonable to call out the double standards of Trump himself, in responding stupidly to the hacking attempt, in ignoring his own role in the stalking of Barack Obama and pretending he has faced unique threats, in media outlets refusing to publish stolen emails.

Trump’s narcissistic behavior is one reason it’s so easy for hostile countries like Russia and Iran to stoke division.

But that doesn’t mean you should make it easier for them, by doubting the word of neutral parties who attest the threat to Trump is real. The Russian attack continues to do real damage, to this day, because the investigation into it led to such polarization. If I’m right about the Steele dossier (Ball of Thread version), some of that was by design, while some of it was the auspicious upside (from the perspective of Russia) of targeting a narcissist. But the result is the same: By targeting Trump, you can elicit the tribalism that damages the US, regardless of Iran’s (or Russia’s) other efforts. A great deal of the polarization in the US, a great deal of the conspiracism on the part of Trump supporters, and therefore a great deal of the extremism, stems from the response to the Russian attack and investigation.

Whether a country backs Trump or wants revenge against him, the goal is the same: to end US hegemony and extend authoritarianism. There are public, rational reasons to believe that Iran really is targeting Trump. There are no good reasons to instead irrationally doubt those public attributions.

Update: In an appearance in North Carolina, Trump said there could be a tie to Iran, and complained that DOJ had not yet broken into the six phones found in Routh’s truck.

“Poor Mr. Zebley:” Both Xitter’s Lawyers and Journalists Responding to Boilerplate Need to re-Read Mueller

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I’ve stopped trying to convince Russian denialists on Xitter that they’re willfully ignorant of facts. At this point, denialists are just trolls exploiting Xitter’s algorithm to create scandal.

I try to focus my time, instead, on conspiracy theorists platformed by prominent schools of journalism.

But when others try to correct denialists on Xitter, they almost always say the denialists haven’t read the Mueller Report closely enough.

So I found it wildly ironic that Chief Judge Beryl Howell, during a period in February when Elon Musk was letting denialists like Matty Dick Pics Taibbi invade the privacy of then-Twitter’s users so he could spew conspiracy theories, Howell scolded Twitter’s lawyer George Varghese that he hadn’t read the Mueller Report closely enough.

THE COURT: You need to read the Mueller report a little bit more carefully.

The transcript of the court hearing and much of the rest of the back-up to Xitter’s attempt to stall compliance of the warrant was unsealed yesterday.

Mind you, Howell was trying to convey to Twitter’s team that there is precedent for investigating Donald J. Trump without giving him advance warning of every investigative step.

MR. VARGHESE: Yes, Your Honor. Our —- by

THE COURT: You think that for 230 orders, 2800 subpoenas, and 500 search and seizure warrants the Mueller team gave advance notice to the former President of what they were about?

MR. VARGHESE: I don’t know that, Your Honor.

THE COURT: You do not know that.

The hearing made it pretty clear that Howell is convinced that Trump will stop at nothing to obstruct criminal investigations into himself.

Howell, who knows what went into the Mueller Report as well as anyone outside the investigative team, does know that.

In fact, when she told Varghese he should have read the Mueller Report more closely, she had just pointed to private comms described in the Mueller Report — the ones where Trump told Mike Flynn to stay strong — where Trump had not gotten advance notice, as prosecutors were demanding he not get advance notice about a warrant to Twitter.

THE COURT: Because the Mueller report talks about the hundreds of Stored Communications Act — let me quote.

Let’s see.

The Mueller report states that: As part of its investigation, they issued more than 2800 subpoenas under the auspices of the grand jury in the District of Columbia.

They executed nearly 500 search and seizure warrants, obtained more than 230 orders for communications records under 18 U.S.C. Section 2703(d); and then it goes on and on and on for all of the other things they did.

And some of those communications included the former President’s private and public messages to General Flynn, encouraging him to “Stay strong,” and conveying that the President still cared about him, before he began to cooperate with the government.

So what makes Twitter think that, before the government obtained and reviewed those Trump-Flynn communications, the government provided prior notice to the former President so that he can assert executive privilege?

MR. VARGHESE: My understanding, Your Honor, is that the Mueller investigators were in contact with the White House counsel’s office about executive privilege concerns.

THE COURT: You quoted the one part that said that, and that was for testimony, testimony, where it was not covert.

Side note: Xitter’s lawyers may not have been entirely wrong about consultations with the White House counsel, even for materials obtained covertly.

This exchange happened on February 7. Two days later there was a follow-up hearing, and WilmerHale counsel Aaron Zebley — someone who knows better than Beryl Howell what happened to the materials for which Howell approved legal process after it got handed over but before they ended up in the Report itself — filed an appearance in this challenge. He never spoke though; he showed up late, if at all, and at one point, after Twitter had presented their opening argument, Howell asked someone to check whether “poor Mr. Zebley” was standing outside a locked door waiting to get in.

THE COURT: Okay. Well, let me just —

Mr. Windom, do you want to think about that or do you want to respond?

Do you think Mr. Zebley is standing outside the locked door?

MR. HOLTZBLATT: I think there is a chance.

THE COURT: Could you check? Poor Mr. Zebley.

MR. WINDOM: Should I wait, Your Honor, or proceed?

THE COURT: Proceed. In my chambers we wait for no man.

Twitter was trying to make an argument that someone had to attend to potential Executive Privilege claims. Howell and the prosecutors nodded several times to a filter protocol addressing privilege issues, of which Twitter was ignorant. And yet Twitter was refusing to comply unless they had the opportunity to tell Donald Trump about the warrant in advance.

Beryl Howell, who was years into her second investigation of Donald Trump at this point, might be forgiven for impatience with lawyers who don’t understand how many Executive Privilege disputes she had presided over between those two investigations. They might be forgiven for their ignorance of all the resolutions of Trump’s current challenges to Executive Privilege in the January 6 investigation.

That said, Twitter’s lawyers aren’t the only ones who should have read the Mueller Report more closely. So are the journalists reporting on this.

One after another journalist (CNN, NYT, Politico, all involving journalists who covered the Mueller investigation) has mistaken DOJ’s request for data — attachment B to the warrant — as some kind of statement of what DOJ was most interested in receiving. Based on that, their stories focus on the fact that DOJ asked for or obtained DMs involving the former President.

But that attachment looks to be largely boilerplate. It is not much different from warrants obtained five years ago, in the Mueller investigation, such as this one, also served on Twitter, apparently targeting Trump’s rat-fucker Roger Stone in an investigation into whether he was serving as a foreign agent of Russia, a warrant that also came with a gag, one Twitter did not contest. One main — telling — difference, is that the Trump request included standard subscription information, which Mueller’s investigators appear to have already requested; one of the items on which Twitter held up compliance, in fact, was Trump’s gender, a sure testament to obstruction within the company.

While Twitter’s services have changed significantly in the interim years, both ask for the same kind of information: DMs, drafts, deleted content, favorited content.

And for good reason!!! These warrants may well have been targeting the same kind of behavior, the kind of organized troll campaigns that exploit Twitter’s algorithms, in which users use a variety of means to obscure their identity. There is a significant likelihood these warrants were targeting precisely the same group of far right online activity, the very same people.

One of the most important Twitter users leading up to January 6, Ali Alexander, is the protégé of Roger Stone and the effort to drive attendance at January 6, Stop the Steal, was a continuation of the effort Stone started in 2016, an effort that may well have been covered by that 2018 warrant or one of the others targeting Stone’s Twitter activity.

To be sure: There are DMs in Trump’s account, though it’s not entirely clear when they date to. Without reading any of the DMs, Twitter checked to see whether the volume of data in Trump’s account indicated the presence of DMs.

MR. VARGHESE: So, Your Honor, we went back — because this was an important issue for us to compare, whether or not there were potentially confidential communications in the account, and we were able to confirm that.

THE COURT: How?

MR. VARGHESE: So, Your Honor, there was a way that we compared the size of what a storage would be for DMs empty versus the size of storage if there were DMs in the account. And we were able to determine that there was some volume in that for this account. So there are confidential communications. We don’t know the context of it, we don’t know —

THE COURT: They are direct messages. What makes you think — do you think that everything that a President  says, which is generically a presidential communication, is subject to the presidential communications privilege?

MR. VARGHESE: No, Your Honor.

But Twitter’s focus on DMs arose from their frivolous basis for delaying response to the warrant — their claim that some of these DMs might be subject to a claim of Executive Privilege.

Moreover, having DMs in the account is not the same thing as a prosecutor confirming that they ultimately obtained DMs, or that any DMs were relevant to the investigation, or that DMs were one of the things they were most interested in.

I don’t doubt that’s likely! But what prosecutors asked for and what was in the larger account is not the same thing as what DOJ ultimately received and used.

And the DMs — most of them, anyway — are something that were available elsewhere. At least as represented in the dispute, NARA already has Trump’s DMs from the period (DOJ chose not to go to NARA, in part, because they wanted to avoid notice that NARA has provided to Trump along the way).

There were three more things that DOJ showed perhaps more interest in, requiring Twitter to go beyond their normal warrant response tools to comply.

The first has to do with emails to Twitter about the account, of which prosecutor Thomas Windom was most interested in emails from people on behalf of Trump.

But this information about, you know, what it is that we say that we’re most specifically interested in, I did not represent that we were most interested in communications betueen government officials and Twitter regarding the account.

We did point out that — much as Your Honor did just now — it seemed beyond comprehension that there weren’t communications regarding the account when it was suspended and terminated, but that doesn’t mean government officials at least cabined to that. It can mean campaign officials. It can be anybody acting on behalf of the user of the account, or the user of the account himself.

THE COURT: So any person regarding the account is broader than what you just said, though, Mr. Windom.

“Any person regarding the account” is quite broad. It could be all the complaints of all of the Trump supporters out in the world saying: What are you doing, Twitter?

So I take it, from what you just said, that you are interested only in =- rather than “any person,” a person who was the subscriber or user of the account or on behalf of that person regarding the account?

MR. WINDOM: Yes, ma’am. An agent thereof.

When Twitter cut Trump off in 2021, they cut off active plans for follow-up attacks. And these emails might indicate awareness of how Trump was using Twitter as a tool to foment insurrection.

Another item on which Windom focused in the following hearing was associated accounts — other accounts the identifiers used with Trump’s accounts also use. Twitter claims they don’t have that — at least not in their law enforcement portal — and so had to collect it manually. But DOJ did ask them to produce it. (Note, the fact that Xitter doesn’t store this is one reason why they’re so bad at tracking information operation campaigns, because visibility on these kind of associations are how you discover them.)

MR. HOLTZBLATT: Well, Your Honor, we don’t — the issue, Your Honor — there isn’t a category of “associated account information”; that’s not information that Twitter stores.

What we are doing right now is manually attempting to ascertain links between accounts. But the ascertainment of links between accounts on the basis of machine, cookie, IP address, email address, or other account or device identifier is not information that Twitter possesses, it would be information that Twitter needs to create. So that’s the reason why we had not previously produced it because it’s not a category of information that we actually possess.

[snip]

MR. WINDOM: It is, as explained more fully in the warrant — but for these purposes, it is a useful tool in identifying what other accounts are being used by the same user or by the same device that has access to the account is oftentimes in any number of cases, user attribution is important. And if there are other accounts that a user is using, that is very important to the government’s investigation.

[snip]

MR. HOLTZBLATT: That’s right. If the records — if the linkage between accounts, which is what we understand this category to be referring to, is not itself a piece of information that we keep, then it’s not a business record that we would ordinarily produce.

What I understand the government to be asking is for us to analyze our data, as opposed to produce existing data. And we are trying to work with the government in that respect, but that is the reason that it is not something that — that is a different category of information.

As Windom explained, this information is critical to any attribution, but it’s also important to learning the network of people who would Tweet on Trump’s behalf, and any overlap between his account and their own (as Roger Stone’s showed in 2016).

Then there’s something that remains only partially explained. For some reason — even Twitter could not figure out why — there were two preservations of Trump’s account in January 2021, before the preservation associated with this warrant. One was on January 9. The other covered January 11 and 12. And when asked, the government of course wanted the latter preservation too — and it is in the possession of Twitter, and so covered by the warrant.

MR. HOLTZBLATT: At 5 p.m. on February 7th, I think that was our day, we produced all data in this category that was in the standard production tools of Twitter.

We communicated with the government on February 8th that there were prior preservations of the subject account that are not within Twitter’s standard production tools and that would, therefore, require engineering to obtain information. And we asked the government whether it wished us to undertake that effort, and the government confirmed that it did.

And we have since then — when we produced on February 7, we indicated to the government in our production letter that there was potentially deleted data that might exist, which is what would be found in prior preservations, but that it would require additional engineering efforts.

At 2 a.m. last night, or this morning, Twitter produced additional information from those prior preservations that falls within category 2A. There are —

THE COURT: When you say “prior preservations” what are you talking about?

Prior litigation holds of some kind or that you  had a stash or a cache of preserved data sitting in different places? What are you talking about?

MR. HOLTZBLATT: I am referring — with respect to this particular account, I am referring to preservations from two specific dates. There is a preservation that was made that includes the subject account covering January 3rd to 9th, 2021. There is a second preservation of this that includes this account that covers January 11 to 12, 2021.

Those are collections of data that — they are not — it’s not coterminous with the categories that would exist in the active account right now and — and that’s data that does not exist within a production environment. So it’s not data that you can just click — we have a system to just click a button and produce, which is why we indicated that further engineering efforts might be necessary.

We asked the government if they wished us to undertake those efforts. We had an engineer working through the night, after the government asked us to, to undertake those efforts. At 2 a.m. in the morning we produced additional information that came from those preservation.

There are two categories of information that — actually, I’m sorry, three categories of information that we are still working to produce because of the engineering challenges associated.

One of those categories is the list of — I am not sure this is from 2A. But I think, for purposes of coherence, it would be helpful for me to describe it now because it connects to this preservation; that is,  followers — a list of followers for this account that were contained within the January 11 through 12th prior preservation. We have segregated that information. It is a complicated and large set of information. And we are unable to deliver it in the manner that we normally deliver information to law enforcement, which is to send a token.

We believe right now it would require physical media to put that information on and to hand it over to the government.

[snip]

MR. HOLTZBLATT: As I mentioned, Your Honor, there were two prior preservations, and then there is the current production tools. In two of the three of those sets, the January 3 through 9 and the current one, we have produced the tweets and related tweet information for the account.

In the January 11 to 12th prior preservation, the way that the tweet and tweet-related information is stored, it goes all the way back to 2006. We don’t have a warrant — that is contents of user communications. He don’t nave a warrant that would permit us to produce the entirety of that information. So what we have is a tool 7 that — what we refer to as a redaction (sic) tool or trimming tool. Because this is not a production environment, a human being has to go in and manually trim the information to isolate the date range. That, I think Your Honor can understand, is a laborious process, including for this particular account, given the time frame; and we need to isolate it, I think, over a three-month, four-month period, I’m sorry, Your Honor. So we are undertaking it.

Unsurprisingly, DOJ wanted to be able to compare the accounts as they existed on January 8 and January 12, 2021, because Trump’s attack was still ongoing and because people were beginning to delete data.

Trump’s DMs, if he used them or even just received them in this period, would be critically important. But Twitter was one of Trump’s most important tools in sowing an insurrection. And the data showing how he used the account, and who also used it, is as important to understanding how the tool worked as the non-public content.

Jeff Sessions HAD Shut Down the Investigation into Russian Interference

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The most alarming exchange in the Mueller Report described how, on June 19, 2017, President Trump dictated a message that Corey Lewandowski should take to Jeff Sessions, telling Sessions (in part) to meet with Mueller and limit his jurisdiction to investigating only “election meddling for future elections,” not the one that got him elected.

During the June 19 meeting, Lewandowski recalled that, after some small talk, the President brought up Sessions and criticized his recusal from the Russia investigation.605 The President told Lewandowski that Sessions was weak and that if the President had known about the likelihood of recusal in advance, he would not have appointed Sessions.606 The President then asked Lewandowski to deliver a message to Sessions and said “write this down.” 607 This was the first time the President had asked Lewandowski to take dictation, and Lewandowski wrote as fast as possible to make sure he captured the content correctly.608

The President directed that Sessions should give a speech publicly announcing:

I know that I recused myself from certain things having to do with specific areas. But our POTUS . .. is being treated very unfairly. He shouldn’t have a Special Prosecutor/Counsel b/c he hasn’t done anything wrong. I was on the campaign w/ him for nine months, there were no Russians involved with him. I know it for a fact b/c I was there. He didn’t do anything wrong except he ran the greatest campaign in American history.609

The dictated message went on to state that Sessions would meet with the Special Counsel to limit his jurisdiction to future election interference:

Now a group of people want to subvert the Constitution of the United States. I am going to meet with the Special Prosecutor to explain this is very unfair and let the Special Prosecutor move forward with investigating election meddling for future elections so that nothing can happen in future elections.610

The President said that if Sessions delivered that statement he would be the “most popular guy in the country.”611

Lewandowski told the President he understood what the President wanted Sessions to do.6 12 Lewandowski wanted to pass the message to Sessions in person rather than over the phone.613 He did not want to meet at the Department of Justice because he did not want a public log of his visit and did not want Sessions to have an advantage over him by meeting on what Lewandowski described as Sessions’s turf. 614 Lewandowski called Sessions and arranged a meeting for the following evening at Lewandowski’s office, but Sessions had to cancel due to a last minute conflict.6 15 Shortly thereafter, Lewandowski left Washington, D.C., without having had an opportunity to meet with Sessions to convey the President’s message.6 16 Lewandowski stored the notes in a safe at his home, which he stated was his standard procedure with sensitive items.617

When the Mueller Report came out, this seemed distinct from all other attempts to fire Mueller, because it attempted to shut down not just the investigation into Trump, but even the investigation into Russia’s interference in 2016 altogether.

But a passage from Andrew Weissmann’s book makes this passage even more alarming. He describes how, “a few weeks after he arrived” (and so around the same time as Trump’s dictation to Lewandowski), after Jeannie Rhee got her own briefing on the ongoing investigation into Russian interference, Weissmann asked for the same briefing. He discovered that no one was really investigating it.

As soon as the Special Counsel’s Office opened up shop, Team R inherited work produced by other government investigations that had been launched before ours: These included the Papadopoulos lead, the National Security Division’s investigation into Russian hacking, and the Intelligence Community’s written assessment on Russian interference.

Ingesting this information was the domain of Team R, and Jeannie had quickly gotten to work untangling and synthesizing the facts. A few weeks after I arrived, I asked attorneys in the National Security Division of the Department of Justice to give me the same briefing they had given Jeannie, so I could familiarize myself with the investigation they’d been conducting into Russian hacking.

The meeting was in a SCIF at Justice’s imposing art deco headquarters on Pennsylvania Avenue.

[snip]

Because my debriefing with the National Security Division involved classified information, I cannot discuss its content substantively here. It took a couple of hours, as a team of NSD lawyers graciously walked me through what they had been up to and answered all my questions. As soon as I got back to our offices, however, I made a beeline to Jeannie’s office and immediately asked her: “What the fuck?”

“I know,” she said. She didn’t need me to finish my thought.

We had both been shocked by something we’d heard in our briefings—but it was less the substance of the Justice Department’s investigation than its approach. Jeannie knew that she was going to inherit some evidence that Russia had hacked the DNC and DCCC emails, but she was astonished that the National Security Division was not examining what the Russians had done with the emails and other documents they’d stolen from those servers—how the release of that information was weaponized by targeted release, and whether the Russians had any American accomplices. More alarmingly, the Department was not apparently looking beyond the hacking at all, to examine whether there had been other Russian efforts to disrupt the election. It was staggering to us that the Justice Department’s investigation was so narrowly circumscribed. Election interference by a foreign power was, inarguably, a national security issue; we expected the National Security Division to undertake a comprehensive investigation. Once again, Jeannie and I were left to speculate as to whether this lapse was the result of incompetence, political interference, fear of turning up answers that the Department’s political leaders would not like, or all of the above. The Intelligence Community’s investigation had assessed that Russia was behind the hacking, but remained seemingly incurious as to everything else. “The rest is going to be up to us,” Jeannie explained. [my emphasis]

As Weissmann describes, Aaron Zebley narrowly focused the Mueller investigation, at first, to leave out any investigation into how Russia had weaponized the releases against Hillary.

But Mueller’s deputy, Aaron Zebley, argued that it was not actually within our remit to look at Russian interference. This defied all logic; the special counsel’s appointment order, signed by Rod Rosenstein, had made clear that we had the authority to investigate these matters. Indeed, it was the first responsibility the order assigned us: “to ensure a full and thorough investigation of the Russian government’s efforts to interfere in the 2016 presidential election.” But Aaron insisted it was out of bounds and instructed Jeannie to focus Team R’s investigatory energy only on the question of whether there were “links and coordination” between the Russian government and the Trump campaign—the other central duty spelled out in our appointment order.

[snip]

Mueller, meanwhile, signed off on Aaron’s directive for his own set of reasons. Even if Aaron’s logic did not make sense, walling our office off from that larger inquiry into Russian interference spoke to Mueller’s perpetual concern about spreading our resources too thin and his impulse to keep the overall investigation moving quickly. Mueller felt we had too much else to do.

Jeannie was convinced this was wrongheaded: The issue was too important not to undertake ourselves and too central to our remit. She knew that the Department, left to its own devices, was not going to get the job done—with the president publicly expressing antipathy toward substantiating Russian election interference, investigators were not going to get the support for this endeavor—nor would they view digging into this issue as a career enhancer. Mueller and Aaron conceded that if we found Russian links to the campaign, then perhaps Team R could begin to branch out and examine the wider Russian interference effort. Otherwise, Big Bu—the FBI—could handle the interference investigation for now, and simply keep us updated.

Mueller’s thinking had logical force only if you believed the Department would run with the ball—something Jeannie, Omer, and I knew was not going to happen. It was hard to think otherwise: The very reason for appointing a special counsel was because of the conflict the Department of Justice had—it was headed by people selected by the White House and had a conflict in investigating whether the White House coordinated with Russians in the 2016 election. That did not mean there was also a conflict in the Justice Department’s investigating whether and how Russia interfered with the 2016 election, as that investigation should in normal times be a bipartisan effort. One would think any administration would be incentivized to investigate foreign election interference. Except, it turned out, this one. Jeannie knew that if her team did not do it, it was simply not going to happen.

Nevertheless, Aaron told Jeannie to find an appropriate team at the FBI and ship off this part of the investigation. Though Jeannie and her team of attorneys and agents disagreed, they followed orders. She spent the next six weeks, in the late summer and early fall of 2017, trying to interest various squads at the Bureau in taking up the task. No one there wanted to touch it; it was too hot politically, with zero margin for error. Plus, it would be an arduous investigation, requiring a team with both criminal and cyber expertise to roll up its sleeves. (“No cases, no problems,” Omer and I thought.)

In the meantime, she and Lawrence Rush Atkinson, an intrepid young colleague of mine from the Fraud Section who now worked on Team R, and who had cyber expertise, worked late at night, after their other work was done, to keep this part of the investigation moving forward as Jeannie shopped the investigation to people at the Big Bu. She hoped to put herself in a position to reargue Team R’s case to Mueller as more facts emerged.

The book would go on to explain that Facebook’s briefing on the Internet Research Agency trolls gave Rhee the opening to incorporate the Russian interference into the investigation.

As the Mueller Report tells it, Lewandowski never delivered his message to Jeff Sessions.

But as the public record appears, the message got delivered.

“Was Wiped:” A Grammar Lesson for the Frothers

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The frothy right is in a tizzy again.

Judicial Watch got a FOIA response that the frothers are reading out of context — without even reading the existing public record much less asking the question they now claim to want to answer — and claiming that Mueller’s attorneys kept wiping their phones.

The FOIA was for records pertaining to Lisa Page and Peter Strzok’s use of DOJ-issued mobile phones while assigned to Mueller’s team. The FOIA was not for a description of the record-keeping in the Mueller office. The FOIA was not for a final accounting of every text that every Mueller team member sent while working for Mueller. If a document mentions Page or Strzok’s phones, it is included here; if it does not, it was withheld.

That said, the frothy right is largely ignoring what the documents show, and instead referring to a single tracking sheet in isolation from the rest, to conclude that multiple Mueller officials wiped their own phones.

To understand what the documents show, it’s best to separate it into what the documents show about Page and Strzok, and then what they show about everyone else.

Mueller’s Office discovered too late that Page and Strzok’s phones had been reset according to standard procedure

The documents show, first of all, that the available paper trail backs the explanations around what happened to Page and Strzok’s Mueller iPhones, which both used for less than 3 months in 2017 while they also used (and sent damning texts on) their FBI issue Samsung phones.

The documents show that Lisa Page was among the first people assigned a Mueller iPhone. Justice Management Department’s Christopher Greer asked for iPhones specifically to deploy a standard mobile technology (though a later document reflects Adam Jed appears to have gotten an Android). Then, after a 45-day assignment, Page left. As the first person to leave the team, she left before processes were put into place to document all that; Page is actually the one who initiated the bureaucratic process of leaving. “Since we have our first detail employee leaving us, it is time to roll out our first form/policy,” Mueller’s administrative officer explained. Mueller’s Records Officer noted she didn’t have to be at the meeting, but provided an Exit Checklist to use on Page’s out-processing. The Records Officer further directed, weeks before anyone discovered Page’s damning texts with Strzok,

Please make sure [Page] doesn’t delete any text messages off her DOJ iPhone, if any.

Everything else should be saved on her H drive on JCON and in her email. This will be good for me as the RSO to go behind and see how that function works.

Mueller’s Administrative Officer also couldn’t make the meeting. But he noted that Page had a laptop “which may already been in [redacted] area, a DOJ cell phone & charger” and noted that “All equipment that I need will be covered as you go through the form.”

The FOIAed documents don’t reveal this, but a DOJ IG Report released in December 2018 reveal that Page left her devices on a shelf in the office she was using.

The SCO Executive Officer completed Page’s Exit Clearance Certification, but said that she did not physically receive Page’s issued iPhone and laptop. During a phone call, Page indicated to SCO that she had left her assigned cell phone and laptop on a bookshelf at the office on her final day there.

On July 17, two days after she left, that Administrative Officer confirmed that, “I have her phone and laptop.”

That is, everyone involved was trying to do it right, but Page was the first person put through this process so everyone admitted they were instituting procedures as they went.

Out-processing of Peter Strzok in August, in the wake of the discovery of Strzok’s texts with Page, was a good deal more terse. That said, the Records Officer did review his phone for anything that had to be saved on September 6, 2017, and found nothing of interest.

Still, their Exit Forms show both returned their iPhone. (Strzok; Page)

It’s only in January 2018, as DOJ IG started to look into their texts, that Mueller’s office discovered they couldn’t account for Page’s iPhone. JMD ultimately found it, but not until September 2018. The phone showed that it had been reset to factory settings, which was standard DOJ policy, on July 31, 2017, two weeks after Page turned it over and left SCO.

In fall 2018 and again in January 2019, numerous people at DOJ tried to find alternative ways to reconstruct any texts Page and Strzok sent on their Mueller iPhones. Because the effort started over a year after they had stopped using the phones, neither DOJ nor Verizon had even log files from the texts anymore. So a DOJ official reviewed Strzok’s phone and found nothing, may not have reviewed Page’s phone, but nevertheless found no evidence Page tried to evade review.

That is, for the subject Judicial Watch was pursuing, the FOIA was a bust.

In response to the Page-Strzok scandal, Mueller appears to have adopted a standard higher than DOJ generally

The Page-Strzok files also suggest certain things about what Mueller did as his investigation was roiled by claims focusing on the two former FBIers.

  • It appears that, after the shit started hitting the fan, Mueller engaged in record-keeping above-and-beyond that required by DOJ guidelines (that’s what the frothers are complaining about)
  • When things started hitting the fan, Mueller’s Chief of Staff Aaron Zebley seems to have started taking a very active role in the response
  • FBI continued to issue Page and Strzok updated phones even while they had Mueller iPhones, which is probably the case for at least the FBI employees on Mueller’s team, making confusion about phones more likely
  • Both DOJ and Verizon would have some ability to reconstruct any texts for phones with problems identified in real time, as opposed to the year it took with Page and Strzok

Here’s the standard DOJ adopts with regards to the use of texts on DOJ-issued phones. DOJ guidelines for retaining texts all stem from discovery obligations — and DOJ, unlike FBI, puts the onus on the user to retain texts.

The OIG reviewed DOJ Policy Statement 0801.04, approved September 21, 2016, which establishes DOJ retention policy for email and other types of electronic messaging, to include text messages. Policy 0801.04 states that electronic messages related to criminal or civil investigations sent or received by DOJ employees engaged in those investigations must be retained in accordance with the retention requirements applicable to the investigation and component specific policies on retention of those messages.

OIG also reviewed DOJ Instruction 0801.04.02, approved November 22, 2016, which provides guidance and best practices on component use of electronic messaging tools and applications for component business purposes.

Section C of 0801.04.02 (Recordkeeping Guidance for Electronic Messaging Tools in Use in the DOJ) subsection 9 (Text Messaging), states that text messaging may be used by staff only if it has been approved by the Head of the Component and in the manner specifically permitted by written component policies. Additional guidance was provided in a memo from the Deputy Attorney General dated March 30, 20 I I, titled ‘Guidance on the Use, Preservation, and Disclosure of Electronic Communications in Federal Criminal Cases.’ The memo states that electronic communications should be preserved if they are deemed substantive. Substantive communications include:

    • Factual information about investigative activity
    • Factual information obtained during interviews or interactions with witnesses (including victims), potential witnesses, experts, informants, or cooperators
    • Factual discussions related to the merits of evidence
    • Factual information or opinions relating to the credibility or bias of witnesses, informants and potential witnesses; and
    • Other factual information that is potentially discoverable under Brady, Giglio, Rule 16 or Rule 26.2 (Jencks Act).

So people using DOJ phones are only required to keep stuff that is case related. DOJ IG had, in 2015, complained about DOJ’s retention of texts, but the standard remained unchanged in 2018.

In January 2018, after someone had leaked news of the Page-Strzok texts to the NYT and after DOJ released their texts to the press (possibly constituting a privacy violation and definitely deviating from the norm of not releasing anything still under investigation by DOJ IG) and after Senator Chuck Grassley and Ron Johnson started making unsubstantiated claims about the texts, Mueller’s Chief of Staff, Aaron Zebley appears to have taken a very active role in the response. That’s when Mueller Executive Officer Beth McGarry Mueller’s Chief of Staff sent Page and Strzok’s Exit Paperwork to Zebley. And that’s when Mueller and DOJ IG discovered no one could find Page’s phone.

Not said in any of these documents, but revealed in the DOJ IG Report, is that Page and Strzok continued to use their FBI Samsung phones, and indeed were issued updated Samsungs after being assigned to Mueller’s team.

Based on OIG’s examination of their FBI mobile devices, Page and Strzok also retained and continued to use their FBI mobile devices. Specifically, on or about May 18, 2017, Page received an FBI-issued Samsung Galaxy S7 mobile device to replace her previously-issued FBI Samsung Galaxy SS. On or about July 5, 2017, Strzok received an FBl-issued Samsung Galaxy S7 mobile device to replace his previously-issued FBI Samsung Galaxy S5.

This was already known, because that’s where all their compromising texts were. But among other things, it makes it clear that some Mueller team members (especially the FBI employees, virtually all of whose names are redacted), may also have continued to use their existing FBI issue phone even while using the Mueller iPhone. With the exception of the 70-something year old James Quarles, whose phone “wiped itself without intervention from him” in April 2018 and who did not use text or have any photos on it when it was wiped, the suspicious events Republicans are complaining about came from DOJ employees, who might be most likely to juggle multiple phones and passwords.

Finally, one more detail of note in the Page and Strzok documents pertains to the other revelations. As noted, as part of the effort to find any texts they might have sent, DOJ reached out to Verizon, to try to figure out what kind of text traffic had been on their phones. Verizon responded that it only keeps texting metadata for 365 days, with rolling age-off, so it couldn’t help (in fall 2018 and January 2019) to access what Page and Strzok had done with their phones in summer 2017. As part of that discussion, however, JMD’s Greer noted that “our airwatch logs may only go back 1 year.” Airwatch is the portal via which corporate users of iPhones track the usage of their employees. It means that so long as something happens with a phone within a year, some data should be available on Airwatch. That is to say, DOJ had two means by which to reconstruct the content of a phone with a problem discovered in real time, means not available given the delay in looking for Page and Strzok’s phones.

The log of phone reviews covering all Mueller personnel

Ultimately, Judicial Watch’s FOIA showed that the documents they were after — the paper trail on the Page and Strzok phones — backs up what has always been claimed about the phones. They were treated via routine process, but as a result there were no texts to review when DOJ IG got around to review them.

So they instead made a stink about just four pages in the release, what appears to be a log — probably started in January 2018, as the Page and Strzok issues continued to roil — of every instance where a Mueller staff phone got reviewed.

The log starts with Page, Strzok, and two other people whose identities are redacted. It has an additional number of entries interspersed with ones from January 2018 which may be those out-processed under DOJ’s normal terms, prior to the initiation of this log. After that, though, the log seems to show meticulous record-keeping both as people were out-processed and any time something went haywire with a phone.

Here, for example, is the entry showing that Kevin Clinesmith’s phone was reviewed on March 5, 2018, and two texts and three photos that were not required to be kept as a DOJ record were emailed to him.

Here, for example, is a record showing that the phone of Uzo Asonye, a local prosecutor added to Manafort’s tax cheat trial in EDVA, got cleared of ten voice mails that pre-dated his involvement with the Mueller team when he was out-processed from the Mueller team.

In other words, Mueller’s team made sure phones were clean, even if they hadn’t been when the came into the team.

Some of what the frothers are pointing to as suspicious is someone wiping their phone when they get it — good security practice and, since the phone is new to them, nothing that will endanger records.

In others of the instances the frothers are complaining about, the log shows that someone immediately alerted record-keepers when they wiped their phone, which (if there were a concern) would provide DOJ an opportunity to check Airwatch.

One thing Republicans are focusing most closely on is that Andrew Weissmann twice “accidentally” wiped his phone, having done so on March 8 and September 27, 2018.

Note, both these instances involve the same phone, and also the same phone he had in what appears to be the final inventory. So while this is not entirely above suspicion, it’s not the case that Weissmann kept wiping phones before DOJ had a chance to check what he had on there before he got a new one. Rather, it appears he wiped the same phone twice and told the record-keepers about it in real time. Moreover, the wipes do not correlate to one possible damning explanation of them, that Weissmann was trying to cover up leaks to the press that Manafort would later accuse him and the Mueller team generally of.

There appears to have been nothing unusual about Weissmann’s out-processing review in March 2019.

So when DOJ had a chance to look at how Weissmann had used his phone for the last six months he used a Mueller phone, it found nothing.

Another of the things Republicans find particularly suspicious is that the phones of Kyle Freeny and Rush Atkinson were both wiped within days of each other (Freeny is a woman, which some of the self-described experts on the Mueller investigation got wrong in their stories on this). For Freeny and one other person (likely an FBI agent), this appears to have been an out-processing review.

Note that here and in many other cases, the description uses the passive voice. “Was [accidentally] wiped,” with no subject identified. There’s good reason to believe — based on the Records Officer retroactive descriptions about Strzok’s phone, the occasional use of the first person, and multiple references to the Administrative Officer — that these are written from the voice of the Records Officer, not the lawyer or agent in question. That is, many of the incidences of descriptions that a phone “was wiped” in no way suggest the person used the phone wiped it. Rather, it seems to be the Records Officer or someone else in the review process. And for a number of those instances there’s a clear explanation why the phone was wiped, which would be normal process for most DOJ transitions in any case.

It does appear Atkinson’s phone was wiped just days after Freeny’s phone, though it was identified in plenty of time to obtain the metadata, if needed.

But like Weissmann, Atkinson’s out-processing review (curiously, the very last one from the entire Mueller team) showed nothing unusual.

In short, what the frothy right appears to have worked themselves up about is that after the conduct of Page and Strzok raised concerns, Mueller imposed record-keeping that DOJ would not otherwise have done, record-keeping that attempted (even though it is not required by DOJ policy) to track every single personal text sent on those phones. And for many of the instances that frothers look at with suspicion, they’re actually seeing, instead, a normal DOJ treatment of a phone.

Timeline

May 20, 2017: Add four accounts, give them iPhones, including Lisa Page and Brandon Van Grack.

May 31, 2017: Page and Strzok first logged into SCO laptops.

June 15, 2017: What kind of tracking do we need for phones? Answer: IMEI. [Includes non-exempt team through that date.]

July 13, 2017: Out-processing of Lisa Page, for whom the process was invented. [Includes list of admin personnel.]

July 17, 2017: Page had handed over her devices, SCO still working with JMD to figure out how to back up common drive.

July 27, 2017: Michael Horowitz tells Mueller of Page-Strzok texts he discovered.

July 31, 2017: Page phone reset to factory settings.

August 9, 2017: Strzok sends exit checklists.

August 10, 2017: Strzok separates from office.

September 6, 2017: Records Officer reviews Strzok’s phone.

November 30, 2017: Mike Flynn informed of Strzok’s texts.

December 2, 2017: NYT reports on Strzok’s texts.

December 13, 2017: DOJ releases first batch of Page-Strzok texts, while trying to hide they were the source.

January 19, 2018: Stephen Boyd informs Chuck Grassley of archiving problems.

January 22, 2018: Strzok’s Mueller iPhone located.

January 23, 2018: Attempt to get texts from Verizon, but both content and metadata no longer stored.

January 25, 2018: Beth McGarry sends Aaron Zebley exit forms from Strzok and Page.

January 26, 2018: LFW notes that they’ve lost Page’s phone, but hands the search off to JMD. Greer notes, specifically, however, that “SCO policy was to reuse them and not hold.”

Late January 2018: FBI Inspection Division finds FBI Samsung phones, provide to DOJ IG.

February 8, 2018: Trump supporter Cesar Sayoc starts plotting attack on Strzok and others.

March 5, 2018: Kevin Clinesmith’s out-processing shows nothing unusual.

March 8, 2018: Andrew Weissmann wipes his phone.

May 4, 2018: Page resigns from FBI.

June 2018: DOJ IG discovers more texts, changes conclusion of Midyear Exam report.

June 14, 2018: Release of Midyear Exam report.

August 10, 2018: Strzok fired from FBI.

Early September 2018: Justice Management Division finds Page’s Mueller iPhone, provides to DOJ IG.

September 13, 2018: SCO Records Officer contacts DOJ IG about what status they got Page’s phone in.

September 21, 2018: Draft language between records officer and Aaron Zebley for DOJ IG Report. Also an attempt to check Airwatch for backups to the phones, but they only go back one year.

September 27, 2018: Andrew Weissmann wipes his phone.

October 17, 2018: DOJ IG informs SCO Records Officer that they have the phone, but that it had been reset to factory settings.

October 22, 2018: DOJ IG Cyber Agent follows up about DOJ IG Report language.

November 15, 2018: FBI Data Collection tool not archiving texts reliably.

November 27, 2018: Kyle Freeny’s phone wiped as part of out-processing.

November 29, 2018: Rush Atkinson’s phone accidentally wiped.

Late December 2018: DOJ IG releases report on archiving of DOJ phones.

December 27, 2018: Zebley responds to Rudy Giuliani claim about destruction of evidence.

January 18, 2019: JMD asks Verizon for texting data for Page and Strzok’s phones, but Verizon’s metadata records only go back 365 days.

January 30-31, 2019: LFW asks to cancel Strzok’s phone.

March 28, 2019: Andrew Weissmann’s out-processing review shows nothing unusual.

June 11, 2019: Rush Atkinson’s out-processing review shows nothing unusual.

December 9, 2019: DOJ IG releases Carter Page IG Report.

Unclear date: Inventory of all phones.

HEARING THREAD: Special Counsel Robert Mueller

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[Check the byline, thanks. /~Rayne]

Former Special Counsel Robert Mueller testifies before two different House committees today. This post is dedicated to these hearings. Please take any other topics to the open thread.

Hearing schedule:

• 8:30 a.m. ET – House Judiciary Committee (HJC) Hearing

Link to C-SPAN streaming

• 12:00 p.m. ET – House Permanent Select Committee on Intelligence (HPSCI) Hearing

Link to C-SPAN streaming

Who to follow:

https://twitter.com/emptywheel (of course)

https://twitter.com/bmaz (naturally)

https://twitter.com/BarbMcQuade – will be on MSNBC to cover at least one of these hearings

https://twitter.com/ZoeTillman – BuzzFeedNews

https://twitter.com/NatashaBertrand – Politico

https://twitter.com/BBuchman_CNS – CourthouseNews

https://twitter.com/jentaub – (late adder – she’s live tweeting a numbered thread)

Apart from our team, here’s a list containing these and other folks who cover Trump-Russia at https://twitter.com/raynetoday/lists/trump-russia.

According to late Tuesday evening reports, Aaron Zebley, former deputy to Mueller, will be sworn in and appear alongside Mueller during at least one of the House committee hearings. (I see differing reports that Zebley will appear before the Judiciary, Intelligence, or both committees.)

The right-wing/Trump supporters are completely freaking out about Zebley’s appearance, blabbering he “was an attorney for Justin Cooper, the IT staffer who set up #HillaryClinton’s private email server & the aide who destroyed Clinton’s old Blackberry phones with a hammer.” (source on Twitter)

The likely loudest GOP voices on the House Judiciary Committee: Doug Collins (ranking minority member, GA-9); Louis Gohmert (TX-1); Jim Jordan (OH-4); Matt Gaetz (FL-1). If past HJC hearings are predictive, expect lots of hot-headed pontificating and few rational questions. Hard to say who will be the worst of the lot but Gaetz has the foolhardiness of youth and past approval from Trump to goad him on. Jordan will focus on “insufficient evidence” to sow fear,  uncertainty and doubt about the Special Counsel’s report and the investigation.

As for the HPSCI, the GOP’s most problematic participant will be Devin Nunes (CA-22) who is the ranking minority member. He’s been meeting with Trump this week about a replacement for Director of National Intelligence Dan Coats (who Trump wants to jettison for being too determined to protect the country). At least the explanation offered is Coats’ replacement; it’s possible that Nunes has been meeting with Trump about Mueller’s appearance before the HPSCI.

Content here may be subject to updates.

Again, this post is dedicated to these hearings. Please take any other topics to the open thread.