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Some Perspective on the Politicized Leak Investigation Targeting Adam Schiff

June 12, 2021/27 Comments/in FISA, Leak Investigations, Mueller Probe /by emptywheel

The NYT reported the other day that DOJ obtained phone records of Adam Schiff, Eric Swalwell, and a bunch of House Intelligence Committee staffers in the guise of what it reports is a leak investigation (though given the specific form of Bill Barr’s prevarications about his knowledge, may have been repackaged as something else when the investigation was resuscitated in 2020).

Prosecutors subpoenaed Apple for data from the accounts of at least two Democrats on the House Intelligence Committee, aides and family members. One was a minor.

All told, the records of at least a dozen people tied to the committee were seized in 2017 and early 2018, including those of Representative Adam B. Schiff of California, then the panel’s top Democrat and now its chairman, according to committee officials and two other people briefed on the inquiry. Representative Eric Swalwell of California said in an interview Thursday night that he had also been notified that his data had subpoenaed.

Prosecutors, under the beleaguered attorney general, Jeff Sessions, were hunting for the sources behind news media reports about contacts between Trump associates and Russia. Ultimately, the data and other evidence did not tie the committee to the leaks, and investigators debated whether they had hit a dead end and some even discussed closing the inquiry.

But William P. Barr revived languishing leak investigations after he became attorney general a year later. He moved a trusted prosecutor from New Jersey with little relevant experience to the main Justice Department to work on the Schiff-related case and about a half-dozen others, according to three people with knowledge of his work who did not want to be identified discussing federal investigations.

The initial collection and especially the subsequent treatment were clearly politicized — and more importantly, stupid, from an investigative standpoint. But, especially because this involves Adam Schiff, some exactitude about what went on really is required.

This is not spying

First, this is not “spying.” If the use of informants to investigate members of the Trump campaign and Hillary Clinton’s Foundation during a political campaign is not spying, if the use of a lawful FISA to conduct both physical and electronic surveillance on recently departed campaign volunteer Carter Page is not spying — and Adam Schiff said they were not, and I agree — then neither is the use of a subpoena to collect the phone records of Democrats who had knowledge of information that subsequently leaked in a fully predicated (and very serious) leak investigation.

This is “just” metadata

According to all reports, the government obtained the iPhone metadata records of 73 phone numbers and 36 email addresses. Apple suggests other tech companies probably got subpoenas, too, which means that some of those email addresses probably weren’t Apple emails.

But it was — as Adam Schiff said many times when defending a program that aspired to collect “all” the phone records in the United States — “just” metadata.

I don’t mean to belittle the impact of that. As I and others argued (against Schiff), metadata is actually profoundly revealing.

But if this is a problem (it is!), then people like Adam Schiff should lead a conversation about whether the standard on collection of metadata — currently, it only needs to be “relevant to” an investigation — is what it should be, as well as the rules imposed on future access to the data once collected prevent abuse.

Apple (and other tech companies) wouldn’t have known this was Adam Schiff

Even people who understand surveillance seem to believe that Apple would have known these requests targeted Adam Schiff in a leak investigation and therefore should have done more to fight it, as if the actual subpoena would be accompanied with an affidavit with shiny flags saying “HPSCI Ranking Member.”

They wouldn’t have. They would have gotten a list of selectors (some of which, by its description, it probably did not service), a description of the crime being investigated (a leak), and a gag order. The one thing that should have triggered closer review from Apple was the number of selectors. But apparently it did not, and once Apple complied, the data was swept up into the FBI’s servers where it presumably remains.

The subpoena was overly broad and not tailored to limit damage to Schiff

All that said, there were aspects of the subpoena that suggest it was written without any consideration for limiting the damage to Congressional equities or reasonable investigative targets. Focusing on these details are important because they distinguish what is really problematic about this (and who is to blame). According to reports, the subpoena:

Obtained information from a minor, who would have had no access to classified information
Included a series of year-long gags
Obtained all the toll records from date of creation
May have focused exclusively on Democratic members and staffers

It’s conceivable that, after years of investigation, DOJ would have reason to believe someone was laundering leaks through a child. But given how broad this subpoena is, it’s virtually impossible the affidavit included that kind of specific knowledge.

With journalists, DOJ is supposed to use shorter gags–three months. The series of year-long gags suggests that DOJ was trying to hide the existence of these subpoenas not just to hide an investigation, but to delay the political embarrassment of it.

There’s no reason to believe that Adam Schiff leaked a FISA application targeting Carter Page first obtained in 2016 in 2009 (or whenever the Californian lawmaker first set up his Apple account). It’s a physical impossibility. So it is completely unreasonable to imagine that years-old toll records would be “relevant to” a leak investigation predicated off a leak in 2017. Mind you, obtaining all records since the inception of the account is totally normal! It’s what DOJ did, for example, with Antionne Brodnax, a January 6 defendant who got notice of subpoenas served on him, but whose attempt to limit the subpoena failed because those whose records are subpoenaed have no authority to do that. There are two appropriate responses to the unreasonable breadth of this request: both a focus on the failure to use special caution with Congressional targets, but also some discussion about how such broad requests are unreasonable regardless of the target.

Given the number of these selectors, it seems unlikely DOJ did more than ID the people who had access to the leaked information in question. Except if they only obtained selectors for Democrats, it would suggest investigators went into the investigation with the assumption that the leak was political, and that such a political leak would necessarily be partisan. That’s simply not backed by exhibited reality, and if that’s what happened, it should force some scrutiny on who made those assumptions. That’s all the more true given hints that Republicans like Paul Ryan may have tipped Page off that he had been targeted.

These kinds of limiting factors are where the most good can come out of this shit-show, because they would have a real impact and if applied broadly would help not just Schiff.

Barr continued to appoint unqualified prosecutors to do his political dirty work

I think it would be useful to separate the initial records request — after all, the leak of a FISA intercept and the target of a FISA order are virtually unprecedented — from the continued use of the records in 2020, under Billy Barr.

The NYT explains that the initial investigators believed that charges were unlikely, but Barr redoubled efforts in 2020.

As the years wore on, some officials argued in meetings that charges were becoming less realistic, former Justice Department officials said: They lacked strong evidence, and a jury might not care about information reported years earlier.

[snip]

Mr. Barr directed prosecutors to continue investigating, contending that the Justice Department’s National Security Division had allowed the cases to languish, according to three people briefed on the cases. Some cases had nothing to do with leaks about Mr. Trump and involved sensitive national security information, one of the people said. But Mr. Barr’s overall view of leaks led some people in the department to eventually see the inquiries as politically motivated.

[snip]

After the records provided no proof of leaks, prosecutors in the U.S. attorney’s office in Washington discussed ending that piece of their investigation. But Mr. Barr’s decision to bring in an outside prosecutor helped keep the case alive.

[snip]

In February 2020, Mr. Barr placed the prosecutor from New Jersey, Osmar Benvenuto, into the National Security Division. His background was in gang and health care fraud prosecutions.

Barr used this ploy — finding AUSAs who were unqualified to work on a case that others had found no merit to — on at least three different occasions. Every document John Durham’s team submitted in conjunction with the Kevin Clinesmith prosecution, for example, betrayed that investigators running it didn’t understand the scope of the Crossfire Hurricane investigation (and thereby also strongly suggested investigators had no business scrutinizing a counterintelligence investigation at all). The questions that Jeffrey Jensen’s team, appointed by Barr to review the DOJ IG investigation and the John Durham investigation to find conclusions they didn’t draw, asked Bill Barnett betrayed that the gun crimes prosecutors running it didn’t know fuckall about what they were doing (why Barnett answered as he did is another thing, one that DOJ IG should investigate). And now here, he appointed a health care fraud prosecutor to conduct a leak investigation after unbelievably aggressive leak investigators found nothing.

DOJ IG should include all of those investigations in its investigation, because they all reflect Barr’s efforts to force prosecutors to come to conclusions that the evidence did not merit (and because the Jensen investigation, at least, appears to have altered records intentionally).

FBI never deletes evidence

In an attempt to disclaim responsibility for yet more political abuse, Billy Barr issued a very interestingly worded disavowal.

Barr said that while he was attorney general, he was “not aware of any congressman’s records being sought in a leak case.” He added that Trump never encouraged him to zero in on the Democratic lawmakers who reportedly became targets of the former president’s push to unmask leakers of classified information.

There are two parts to this: One, that “while he was attorney general,” Congresspersons’ records were not sought, and two, sought in a leak case. The original subpoena for these records was in February 2018, so not during Barr’s tenure as Attorney General. He doesn’t deny asking for those previously-sought records to be reviewed anew while Attorney General.

But he also limits his disavowal to leak cases. Under Barr’s fervent imagination, however, these investigations may well have morphed into something else, what he may have imagined were political abuse or spying violation cases. DOJ can and often does obtain new legal process for already obtained records (which would be unnecessary anyway for toll records), so it is not outside the realm of possibility that Barr directed his unqualified prosecutor to use those already-seized records to snoop into some other question.

It’s a pity for Adam Schiff that no one in charge of surveillance in Congress imposed better trackability requirements on FBI’s access of its investigative collections.

Both an IG investigation and a Special Counsel are inadequate to this investigation

Lisa Monaco asked Michael Horowitz to investigate this investigation. And that’s fine: he can access the records of the investigation, and the affidavits. He can interview the line prosecutors who were tasked with this investigation.

But he can’t require Barr or Jeff Sessions or any of the other Trump appointees who ordered up this investigation to sit for an interview (he could move quickly and ask John Demers to sit for an interview).

Because of that, a lot of people are asking for a Special Counsel to be appointed. That would be nice, except thus far, there’s no evidence that a crime was committed, so there is no regulatory basis to appoint a Special Counsel. The standard for accessing records is very low, any special treatment accorded journalists or members of Congress are not written into law, and prosecutorial discretion at DOJ is nearly sacrosanct. The scandal is that this may all be entirely legal.

Mind you, there’s good reason to believe there was a crime committed in the Jeffrey Jensen investigation, the same crime (altering documents) that Barr used to predicate the Durham Special Counsel appointment. So maybe people should revisit that?

Luckily, Swalwell and Schiff know some members of Congress who can limit such abuses

If I learned that DOJ engaged in unreasonable surveillance on me [wink], I’d have no recourse, largely because of laws that Adam Schiff has championed for years.

But as it happens, Schiff and Swalwell both know some members of Congress who could pass some laws limiting the ability to do some of the things used against them that affect thousands of Americans investigated by the FBI.

Now that Adam Schiff has discovered, years after we tried to reason with him on this point, that “it’s just metadata” doesn’t fly in this day and age, maybe we can talk about how the FBI should be using metadata given how powerful it has become?

The renewed focus on Schiff’s metadata would have come after Schiff disclosed Nunes’ ties to Rudy Giuliani’s grift

Another factor of timing hasn’t gotten enough attention. In late December, Schiff released the Democrats’ impeachment report. Because Schiff obtained subpoenas (almost certainly targeting Lev Parnas and Rudy Giuliani), he included call records of calls implicating Devin Nunes and his staffer Derek

Over the course of the four days following the April 7 article, phone records show contacts between Mr. Giuliani, Mr. Parnas, Representative Devin Nunes, and Mr. Solomon. Specifically, Mr. Giuliani and Mr. Parnas were in contact with one another, as well as with Mr. Solomon.76 Phone records also show contacts on April 10 between Mr. Giuliani and Rep. Nunes, consisting of three short calls in rapid succession, followed by a text message, and ending with a nearly three minute call.77 Later that same day, Mr. Parnas and Mr. Solomon had a four minute, 39 second call.78

[snip]

On the morning of May 8, Mr. Giuliani called the White House Switchboard and connected for six minutes and 26 seconds with someone at the White House.158 That same day, Mr. Giuliani also connected with Mr. Solomon for almost six minutes, with Mr. Parnas, and with Derek Harvey, a member of Representative Nunes’ staff on the Intelligence Committee.159

69 AT&T Document Production, Bates ATTHPSCI _20190930_00848-ATTHPSCI_20190930_00884. Mr. Parnas also had an aborted call that lasted 5 seconds on April 5, 2019 with an aide to Rep. Devin Nunes on the Intelligence Committee, Derek Harvey. AT&T Document Production, Bates ATTHPSCI_20190930_00876. Call records obtained by the Committees show that Mr. Parnas and Mr. Harvey had connected previously, including a four minute 42 second call on February 1, 2019, a one minute 7 second call on February 4, and a one minute 37 second call on February 7, 2019. AT&T Document Production, Bates ATTHPSCI_20190930_00617, ATTHPSCI_20190930_00630, ATTHPSCI_20190930_00641. As explained later in this Chapter, Rep. Nunes would connect separately by phone on April 10, 11, and 12 with Mr. Parnas and Mr. Giuliani. AT&T Document Production, Bates ATTHPSCI_20190930_00913- ATTHPSCI_20190930_00914; ATTHPSCI_20190930-02125.

76 Specifically, between April 8 and April 11, phone records show the following phone contacts:

six calls between Mr. Giuliani and Mr. Parnas (longest duration approximately five minutes), AT&T Document Production, Bates ATTHPSCI_20190930-02115-ATTHPSCI_20190930-02131;

four calls between Mr. Giuliani and Mr. Solomon (all on April 8, longest duration approximately one minute, 30 seconds) AT&T Document Production, Bates ATTHPSCI_20190930-02114- ATTHPSCI_20190930-02115;

nine calls between Mr. Parnas and Mr. Solomon (longest duration four minutes, 39 seconds) AT&T Document Production, Bates ATTHPSCI_20190930-00885- ATTHPSCI_20190930- 00906; and

three calls between Mr. Parnas and Ms. Toensing (longest duration approximately six minutes), AT&T Document Production, Bates ATTHPSCI_20190930-00885- ATTHPSCI_20190930- 00905.

77 AT&T Document Production, Bates ATTHPSCI_20190930-02125, ATTHPSCI_20190930-03236.

78 AT&T Document Production, Bates ATTHPSCI_20190930-00902.

[snip]

158 AT&T Document Production, Bates ATTHPSCI_20190930_02313.

159 AT&T Document Production, Bates ATTHPSCI_20190930_02314; ATTHPSCI_20190930_02316; ATTHPSCI_20190930_02318; ATTHPSCI 20190930 01000.

Because Nunes doesn’t understand how phone records work, he — and most other Republicans in Congress — accused Schiff of subpoenaing the record of his colleagues. That’s not what happened. Instead, Nunes and a key staffer got involved in with Rudy’s efforts to solicit dirt from Russian assets and as a result they showed up in Rudy’s phone records.

But it’s the kind of thing that might lead Barr to intensify his focus on Schiff.

The last section of this was an update.

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Rat-Fucker Rashomon: Guccifer 2.0 the Go-Between

October 22, 2020/8 Comments/in 2016 Presidential Election, emptywheel, Mueller Probe /by emptywheel

Fresh off the weekend of Roger Stone’s trial, prosecutors got Rick Gates to testify, and then called former FBI Agent Michelle Taylor back on the stand. Ostensibly, they needed to call Taylor to introduce a transcript of a scene from Godfather II that Stone kept using to try to convince Randy Credico to lie to the House Intelligence Committee, something that the two sides had been debating throughout the first week of the trial.

But the first thing prosecutors did when they got their FBI witness back on the stand was to bring Guccifer 2.0 into it.

Q. When you first testified last week, do you remember testifying about the release of some emails of the Democratic National Committee by an organization called WikiLeaks on July 22nd, 2016?

A. Yes, I do.

Q. What was the name of the online persona or figure who took credit for hacking or obtaining those documents from the Democratic National Committee?

A. Guccifer 2.0.

Q. During Mr. Stone’s testimony before the House Intelligence Committee, was he asked about that persona, Guccifer 2.0, and that alleged hack?

A. Yes, he was.

MR. ZELINSKY: I would like to publish now, please, for the witness and the jury, what’s been admitted as Government’s Exhibit 1. This is page 28 of Government’s Exhibit 1.

BY MR. ZELINSKY: Q. Ms. Taylor, I want to direct your attention to the portion of — oh, and, Ms. Taylor, just to remind the jury, what is Government’s Exhibit 1?

A. This is a transcript of Mr. Stone’s testimony before HPSCI.

Q. I’ve put on the screen in front of you page 28 of the transcript. Can you read for us, please, the question and answer that I have highlighted there?

A. “MR. SWALWELL: In 2016, August of 2016, you and the American public are aware, from press reporting, that Russia is accused of hacking democratic emails, is that — “MR. STONE. Yes.”

Q. I want to direct your attention now to page 29, the next page of the same exhibit. Can you read, please, the question and answer that I’ve highlighted on page 29 of Government’s Exhibit 1, the transcript?

A. “MR. SWALWELL: It took me a while, too. “Were you aware when you wrote that article, the Breitbart one, that Guccifer 2.0 was assessed by the Intelligence Community as a cutout for the Russian intelligence services? “MR. STONE: I was aware of that claim, but I don’t subscribe to it. There’s a substantial amount of information you can find online that questions that. I realize it’s an assertion, but as I said in my statement, our intelligence agencies are often wrong.”

Q. Finally, Ms. Taylor, I would like to direct your attention to page 113, bottom of 113 to the top of 114 of the same exhibit, the transcript. First, can you read for us, please, the question that starts at the bottom of page 113 of the transcript?

A. “MR. SCHIFF: Mr. Stone, you’ve acknowledged that it’s the conclusion of the intelligence community that Guccifer 2 is a cutout of the Russian intelligence agencies.”

Q. And Mr. Stone’s response?

A. “MR. STONE: They have said that, yes.”

Mind you, Guccifer 2.0 had been mentioned earlier in the trial, as when Taylor read off HPSCI communications with Stone or Randy Credico’s texts with Stone mentioning the persona, as well as legal debates outside the presence of the jury. Prosecutors also had Taylor present two Guccifer 2.0 posts that were published on the same days as calls involving Stone, June 15 and June 30, in the latter case, a call to Trump.

Q. Can you please read for us the first two sentences of the Guccifer 2 Word Press post from June 15th, 2016?

A. Sure. “Worldwide known cyber security company CrowdStrike announced that the Democratic National Committee, DNC, servers had been hacked by sophisticated hacker groups. I’m very pleased the company appreciated my skills so highly, but, in fact, it was easy, very easy.”

[snip]

Q. Did this same author, Guccifer 2.0, post another message about the hack a few weeks later?

A. He did.

Q. I’d like to publish now, please, for the witness and the Court — and the jury, excuse me, Government’s Exhibit 150, which appears at tab 4 of your binder. What is Government’s Exhibit 150?

A. This is another Word Press post by Guccifer 2 dated June 30, 2016.

Jonathan Kravis would remind the jury how the latter post coincided with a call between Stone and Trump in his closing arguments.

And Stone’s lawyers raised the persona a few times, in their opening, in cross examination, and their close.

But this was the first time prosecutors directly addressed Stone’s claims and communications about Guccifer 2.0, as opposed to with Trump or — via a never identified go-between — with WikiLeaks.

In the prosecution prior to this point, as in most of these Roger Stone stories, the WikiLeaks story was kept remarkably distinct from the Guccifer 2.0 story.

Of the four stories told about Roger Stone, two adopt a structure that treat Stone’s communication with Guccifer 2.0 and WikiLeaks in parallel: there are a handful of communications between him and Guccifer 2.0 (pages 194 to 196 of the SSCI Report, one paragraph on page 44 of the Mueller Report), and a separate discussion of Stone’s attempts to optimize the WikiLeaks releases (pages 221 to 252 of the SSCI Report, pages 51 to 59 of the Mueller Report).

The affidavits show that initial investigative work focused on Guccifer 2.0, not WikiLeaks. The way in which later affidavits present these issues changed over time. But many of them separate Stone’s “Public interactions with Guccifer 2.0 and WikiLeaks” from the (later) “Private Twitter Direct Messages with WikiLeaks and ASSANGE.” The affidavits generally stopped mentioning Stone’s private DMs with Guccifer 2.0 in March 2018.

That parallel structure applies to the indictments, too. Stone gets his own paragraph, ¶44, in the GRU indictment. But the Stone indictment makes absolutely no mention of Guccifer 2.0. The government declared Stone’s prosecution a “related case” to the GRU one, meaning the same judge — Amy Berman Jackson — would preside. Stone’s team unsuccessfully objected. Prosecutors explained the designation, in part, because, “Certain Netyksho defendants, through a fictitious online persona they created, Guccifer 2.0, also interacted directly with Stone concerning other stolen materials posted separately online.” Ultimately, ABJ denied Stone’s attempt to dissociate the case. Stone made an equally unsuccessful attempt to make the Russian attribution more central to the case, even addressing his communications with Guccifer 2.0. Ultimately, however, the case was totally separate.

And yet, just before it closed their case, the government got their FBI witness to review the part of Stone’s HPSCI testimony where he acknowledged that the intelligence community had assessed that Guccifer 2.0 was a cut-out for Russian intelligence.

In response, Stone’s attorney Bruce Rogow got Taylor to confirm that she didn’t know independently whether Guccifer is Russian and “was not aware” of any other communications between Stone and Guccifer 2.0, something he tried unsuccessfully to emphasize in his close.

Q. Good morning, again, Ms. Taylor.

A. Good morning.

Q. Do you know, independently, whether or not Guccifer is Russian?

A. I don’t.

Q. Did Mr. Stone turn over his communications with Guccifer that he mentioned in the transcript?

A. He did.

Q. Did you find any other communications between Mr. Stone and Guccifer?

A. I’m not aware of any.

Taylor’s response was the same one the Mueller Report gave, in that sole paragraph on Stone’s communications with Guccifer 2.0 referenced above. A sentence that has been unsealed since the original release reads, “The investigation did not identify evidence of other communications between Stone and Guccifer 2.0,” beyond the DMs in August and September, 2016. Earlier in that paragraph, however, a previously redacted passage reveals the significance of it. “After the GRU had published stolen DNC documents through Guccifer 2.0, Stone told members of the Campaign that he was in contact with Guccifer 2.0,” which it cites to this almost entirely redacted passage in a Rick Gates interview, a passage that seems to discuss events that predate the July 22 DNC release.

SSCI has read this unredacted 302, and they assess (as I have in the past, about a different 302) that Gates was just confused between the illusory deleted Clinton emails and actual advance knowledge of emails.

FBI, FD-302, Gates 4/10/2018. The Committee assesses· that, at this time, the references to Clinton’s “emails” reflected a focus on allegedly missing or deleted.emails from Clinton’s personal server during her tenure as Secretary of State.

But in context, the unredacted passage in the Mueller Report suggests that Stone told Gates — and others — that he spoke to Guccifer 2.0 before those known August and September exchanges.

This is a question that prosecutors might have asked Gates to testify about publicly. As noted, his testimony directly preceded Taylor’s second trip to the stand. Rather than ask for clarification on that question, though, Aaron Zelinsky instead had Gates describe how, on June 15, in the wake of the DNC announcement that it had been hacked by Russia (and, though Zelinsky didn’t say it, the launch of the Guccifer 2.0 site), Stone asked for the phone numbers of Jared Kushner and one other staffer “to debrief them on the developments of the DNC announcement.” Indeed, Zelinsky treated this as entirely a discussion about WikiLeaks’ upcoming leaks, not Guccifer 2.0’s existing one.

Q. During the balance of June — we’re still in June of 2016 — did you continue to discuss WikiLeaks with Mr. Stone?

A. Yes, off and on.

Q. Why did you continue, in June, to continue to discuss WikiLeaks with Mr. Stone?

A. Because at that point, both myself and Mr. Manafort didn’t believe the information was coming because it still hadn’t come out. And Mr. Manafort had asked me from time to time to check with Mr. Stone to see if the information was still real and viable.

Q. And when you say the “information,” you mean releases from WikiLeaks; is that correct?

A. That’s correct.

As for Agent Taylor’s response to Bruce Rogow’s question — that she was not aware of any other communications between Guccifer 2.0 and Stone besides the DMs he shared with HPSCI — she might not be aware of any late-discovered communications between Stone and Guccifer 2.0 beyond those he shared with HPSCI even if there were any. She testified that her role on “that piece” of the investigation — meaning the investigation of Roger Stone — was as a case agent.

Q. Ms. Taylor, in the course of your work with the FBI, was there a time in your career when you were assigned to work on the investigation led by then Special Counsel Robert Mueller?

A. Yes.

Q. And in particular in the course of your work on the special counsel’s investigation, did you participate in the piece of the investigation that concerned the defendant in this case, Roger Stone?

A. Yes, I did.

Q. What was your role on that piece of the special counsel’s investigation?

A. I was one of the case agents on the investigation of Mr. Stone.

According to Andrew Weissmann’s book, though, her primary role on Mueller’s team wasn’t on the Stone team, she was the lead agent on the obstruction team (which, given the involvement of Andrew Goldstein in certain interviews in fall 2018, was closely involved in investigating Roger Stone’s witness tampering and cover story as part of the obstruction piece). Taylor wrote none of the affidavits targeting Stone. Additionally, she had left the FBI months before the trial, in August 2019, so she also wouldn’t have been included in an interview conducted over the weekend of the trial (possibly with Andrew Miller, Stone’s aide who had managed his schedule at the RNC, where Stone appears to have gotten advance notice of the DNC leak).

So even with Taylor on the stand, Bruce Rogow may not have been able to discover — much less convey to the jury — the government’s full understanding of what Guccifer 2.0’s relationship with Stone was … not what it was when other FBI agents wrote affidavits hiding part of the investigation from him a year earlier, not what it was when they obtained Andrew Miller’s testimony weeks after the release of the Mueller Report, not what it was after that last interview on November 9, 2019, over seven months after the completion of the Mueller Report and smack dab in the middle of the trial.

Indeed, when he was standing there asking the question of Mueller’s lead agent from the obstruction team about communications between his client and Guccifer 2.0, Rogow would know that the FBI had found searches, starting on May 17, 2016, that seemed to indicate that Stone had foreknowledge of the Russian hack-and-leak; Stone had received those two warrants (one, two) in discovery. But Rogow would not know — because it was among the 15 warrants that the government had withheld, in part, to hide the full scope of the investigation from Stone — that two minutes after the FBI obtained a warrant for Stone’s cell site location from June 14 to November 15, 2016, in part to confirm whether Stone had done the searches indicating foreknowledge of the Guccifer 2.0 operation and in part to figure out whom he met with on August 3, 2016 in LA when he would later claim to have been dining with Julian Assange — a different FBI agent, one likely tied to the GRU investigative team, obtained a search warrant for an email that Guccifer 2.0 set up on July 23, 2016. That email was set up the day after the DNC drop, and perhaps not coincidentally, on the last day on which Stone may have deleted his Google search history, hiding those earlier searches showing foreknowledge of the Russian operation.

Up to that moment when former Agent Taylor discussed Stone’s HPSCI testimony confirming he knew the intelligence community believed Guccifer 2.0 to be a Russian cut-out, Stone’s trial was about his lies about who his go-between with WikiLeaks was, not about truths and lies he may have told about Guccifer 2.0.

Unless Guccifer 2.0 was that go-between.

In any case, the trial was, ultimately, about Guccifer 2.0, because some of the evidence prosecutors used to prove that Stone spoke with the campaign about a go-between to WikiLeaks involved Guccifer 2.0. In addition to the disclosure that Stone spoke to Trump before the June 15 and after the June 30 Guccifer 2.0 posts, the trial made something else public for the first time, something that had been a key detail in the affidavits, and would be in the SSCI Report, but which was not one included in the Mueller Report (or Stone’s indictment).

At 8:16AM on August 15, Corsi texted and then at 8:17 AM Corsi emailed Stone the same message, telling him there was “more to come than anyone realizes”:

Appearing in the midst of a story about Stone’s lies about his go-between with WikiLeaks, the texts and emails are fairly innocuous. Though the SSCI Report does seem to believe Corsi’s story that this moment — and the 24 minute call between Corsi and Stone at 12:14PM on August 15 — is when Corsi told Stone about what the Podesta files would include.

(U) The Committee is uncertain how Corsi determined that Assange had John Podesta’s emails. Corsi initially explained in an interview with the SCO that during his trip to Italy, someone told him Assange had the Podesta emails. Corsi also recalled learning that Assange was going to “release the emails seriatim and not all at once.”1572 However, Corsi claimed not to remember who provided him with this information, saying he could only recall that “it feels like a man” who told him.1573

(U) Corsi further recalled that on August 15, after he returned from Italy, he conveyed this information to Stone by phone.1574 According to Corsi, the information was new to Stone. Stone seemed “happy to hear it,” and the two of them “discussed how the emails would be very damaging” to Clinton. 1575 Corsi also reiterated by both text and email to Stone on August 15 that there was “[m]ore to come than anyone realizes. Won’t really get started until after Labor Day.”1576

But that’s only so long as you keep the Guccifer 2.0 story separate from the WikiLeaks story, as the SSCI and Mueller Reports do.

If you combine those stories, though, here’s what a partial timeline looks like:

August 2, 2016: Corsi informs Stone that “the hackers” will release one dump shortly after he returns on August 12 and another in October; he also mentions Podesta.

August 3, 9:12AM: Stone emails Manafort to tell him about, “an idea to save Trump’s ass.”

August 4: Stone tells Sam Nunberg that he dined with Assange the night before (he had been in LA).

August 5: Stone flip-flops on prior public statements backing the Russian attribution, writing a column declaring that Guccifer 2.0, not Russia, did the DNC hack.

August 9: Both Julian Assange and Stone start pushing the Seth Rich conspiracy.

August 12, 5:41PM: Guccifer 2.0 releases DCCC docs, fulfilling the timing (but not the outlet) that Corsi predicted.

August 12, 6:31PM: Guccifer 2.0, Emma Best, and WikiLeaks begin a discussion about exclusivity on the DCCC documents for WikiLeaks.

August 12, 10:16PM: Guccifer 2.0 says he’ll send major trove of DCCC documents to WikiLeaks; WikiLeaks never publishes any DCCC documents.

August 12, 10:23PM: Guccifer 2.0 publicly calls out Stone, “Thanks that u believe in the real #Guccifer2.”

August 13, 10:19AM: Corsi texts Stone: “Call when you can.”

August 13, 10:42AM: WikiLeaks tweets “‘@Guccifer_2’ has account completely censored by Twitter after publishing some files from Democratic campaign #DCCC”

August 13, 11:15AM: Stone tweets, “@wikileaks @GUCCIFER_2 Outrageous! Clintonistas now nned to censor their critics to rig the upcoming election.”

August 13, 7:29PM: Stone tweets, “@DailyCaller Censorship ! Gruccifer is a HERO.”

August 14, 12:58PM: Guccifer 2.0 tweets, “#Guccifer2 Here I am! They’ll have to try much harder to block me! #DNCleak #dccchack”

August 14 (unknown time): Stone DMs Guccifer 2.0: “Delighted you are reinstated.”

August 14 (unknown time, per Corsi article): Corsi starts a file called “Podesta.”

August 15, 1:33AM: Stone tweets about Podesta for the first time ever, seemingly in response to NYT story on black ledger implicating Manafort: “@JohnPodesta makes @PaulManafort look like St. Thomas Aquinas Where is the @NewYorkTimes?”

August 15, 8:16 and 8:17 AM: Corsi texts and emails Stone, “More to come than anyone realizes.”

August 15, 12:14PM: Corsi and Stone speak for 24 minutes.

August 15, 2016 (unknown time): Guccifer 2.0 DMs Stone: “thank u for writing back . . . do u find anyt[h]ing interesting in the docs i posted?”

So long as the WikiLeaks story is kept separate from the Guccifer 2.0 one, that August 15 DM from Guccifer 2.0 to Stone appears to be a question about the DCCC emails posted on August 12, and so, as Stone claimed, totally innocuous. But given the evidence that Corsi and Stone acquired advance knowledge of the content of select Podesta emails by August 15 — particularly given Stone’s claim, reportedly made before July 22, to have been in touch with Guccifer 2.0 and his apparent foreknowledge of the GRU personas — that August 15 DM appears to be a comment on the Podesta files.

That is, that August 15 was not innocuous at all. It appears to have been, rather, the GRU’s persona asking Stone whether he liked what he had received in advance.

The movie Rashomon demonstrated that any given narrative tells just one version of events, but that by listening to all available narratives, you might identify gaps and biases that get you closer to the truth.

I’m hoping that principle works even for squalid stories like the investigation into Roger Stone’s cheating in the 2016 election. This series will examine the differences between four stories about Roger Stone’s actions in 2016:

The Mueller Report
The Stone prosecution
The SSCI Report
The affidavits from the investigation

As I noted in the introductory post (which lays out how I generally understand the story each tells), each story has real gaps in one or more of these areas:

My hope is that by identifying these gaps and unpacking what they might say about the choices made in crafting each of these stories, we can get a better understanding of what actually happened — both in 2016 and in the investigations. The gaps will serve as a framework for this series.

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Racism and Russia: The Topics Brian Murphy Claims He Was Ordered to Lie About

September 10, 2020/90 Comments/in 2016 Presidential Election, 2020 Presidential Election, Racism /by emptywheel

Yesterday, Adam Schiff released the whistleblower complaint of Brian Murphy, who was recently demoted from his job in Homeland Security’s Office of Intelligence and Analysis because — he claims — he refused to make lie about what the intelligence showed to match President Trump’s preferred policy objectives.

The whole complaint is worth reading, and Murphy has been subpoenaed for a classified deposition on September 21, after which we may learn more about his complaints.

But I think it’s useful to pull out the topics about which he claims he or others lied:

To support President Trump’s claims to need a border wall, Murphy alleges, Kirstjen Nielsen substituted the number of “special interest aliens” — migrants from countries where there is significant terrorism, but against whom the US government has no reason to believe is tied to terrorism — for the number of “known and suspected terrorists,” effectively turning every person from a terrorism-affected country (presumably, with the exception of Saudi Arabia) into a terrorist.
Murphy also alleges that Nielsen substituted the number of KSTs who had ever applied for a visa or crossed a US border at any point, 3,755, for the number, 3, who had come across the southern border.
Murphy alleges that Ken Cuccinelli demanded that intelligence reports misreport the conditions of corruption, violence, and poor economic conditions in Guatemala, Honduras, and El Salvador (it’s not clear from the complaint whether Cuccinelli wanted I&A to downplay or exaggerate those conditions, but logically he probably wanted them to downplay the conditions that might support asylum claims).
Trump allegedly threatened to fire Murphy’s boss, David Glawe, after he refused to bow to pressure from Republicans on the House Committee for Homeland Security to deny Russian interference in the 2016 election.
On more 11 occasions spanning from March 2018 to May 2020, Murphy says he provided analysis about Russian influence, which led to several orders from his superiors either to downplay Russian interference or focus instead on Iranian and Chinese attempts to influence our elections.
In March 2020, DHS limited distribution of the Homeland Threat Analysis because of what it said about White Supremacy and Russian influence in the US; in May and June, 2020, Cuccinelli allegedly told Murphy to downplay the threat of White Supremacist terrorism and include claims about left wing terrorism. Ultimately, the document was released with sections on Antifa and anarchist groups that had not originally been there.
Between the end of May and July 31, 2020 (the day before Murphy was demoted), Murphy claims Cuccinelli and Chad Wolf ordered him to include claims about Antifa and anarchist groups in reports on Antifa that matched what Trump had already said publicly.

In short, Murphy claims he was ordered to lie about:

Both the reasons people migrate to the US and the degree to which migrants across the Southern border include possible terrorists
Russian interference and disinformation, past and present
The actual and relative danger of right wing terrorists and Antifa

These topics are important not just because they crystalize Trump’s ideology — racism and Russia — but also because people throughout government (most notably and dangerously the Attorney General) are lying about the same topics. Trump spends a lot of time gaslighting about these topics and trying to reassure suburban moms that he’s not a racist sponsored by Russia. But the bureaucratic abuses committed to back Trump’s lies make it clear what his ideology is and where his loyalties lie.

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“These Actions Have Targeted Not Only against Russia, But Also Against the President Elect”

August 17, 2020/19 Comments/in 2016 Presidential Election, Leak Investigations, Mueller Probe, Russian hacks /by emptywheel

Given the news that Donald Trump is considering pardoning Edward Snowden, there has been a lot of discussion about why Trump would do this.

It’s actually not a deviation from past actions. Just seven days after the election, Trump’s rat-fucker started working on a pardon for Julian Assange, something that Trump offered a very circumscribed answer to Mueller about. He continued to entertain such proposals, and even ordered then CIA Director Mike Pompeo to consider a theory purporting to undermine the Russian attribution of the hack, one understood to be tied to an Assange pardon.

And on March 15, 2017, Trump shared information with Tucker Carlson that would have tipped off Joshua Schulte that the FBI considered him the culprit behind the Vault 7 leaks. While Trump shared that information hours before the FBI searched Schulte’s residence and seized his passports (including a diplomatic passport he never returned to CIA), there’s no evidence that information was made public before the FBI confronted Schulte that night. Had it, though, Trump’s comments might have led Schulte to accelerate a trip to Mexico he already had scheduled. John Solomon would even go on to blame Jim Comey for not pardoning Assange in advance of the Vault 7 releases.

So Trump has repeatedly undermined the prosecution of people who released large amounts of intelligence community secrets. Snowden would just be part of a pattern.

There’s some complaint that Trump opponents — including Adam Schiff — have suggested Trump would do this (dramatically altering his prior stance) because of Putin.

In fact, Russia has deliberately encouraged Trump to believe Russia and Trump were on the same side, opposed to the US intelligence community, since weeks before he was even inaugurated.

When, on December 31, 2016, Sergey Kislyak called Mike Flynn to tell him that his intervention to undermine sanctions on Russia for interfering in the 2016 election had succeeded in persuading Putin to take no action, Kislyak told Flynn that Russia considered the sanctions — for a hostile attack on this country!!! — to be an attack targeting not just Russia, but Trump himself.

KISLYAK: Uh, you know I have a small message to pass to you from Moscow and uh, probably you have heard about the decision taken by Moscow about action and counter-action.

FLYNN: yeah, yeah well I appreciate it, you know, on our phone call the other day, you know, I, I, appreciate the steps that uh your president has taken. I think that it is was wise.

KISLYAK: I, I just wanted to tell you that our conversation was also taken into account in Moscow and …

FLYNN: Good

KISLYAK: Your proposal that we need to act with cold heads~ uh, is exactly what is uh, invested in the decision.

FLYNN: Good

KISLYAK: And I just wanted to tell you that we found that these actions have targeted not only against Russia, but also against the president elect.

FLYNN: yeah, yeah.

“Yeah, yeah,” Trump’s weak-kneed National Security Advisor with 30 years intelligence experience said in reply.

We don’t need to speculate about whether Russia has encouraged Trump to view Russia as an ally against a hostile American Intelligence Community. We have proof. And even Mike Flynn, with a victim complex only a fraction as Yuge as Trump’s own, simply nodded along.

I mean, if Trump does pardon Snowden, by all means he should accept it — it likely would save his life.

But if you believe Trump is considering this out of any belief in whistleblowing or transparency — or even opposition to the surveillance that has ratcheted up and gotten less accountable under his Administration — you’re simply deceiving yourself.

And, yes, there is concrete evidence that Russia has cultivated Trump’s antagonism against the IC — well before Trump’s own actions led the FBI investigate him personally — so much that he might pardon Snowden to harm them.

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Adam Schiff Makes Clear FBI Is Using Section 215 Like the 2014 Exception

May 27, 2020/19 Comments/in EO 12333, FISA /by emptywheel

For months, Congress has been debating the reauthorization of Section 215 of the PATRIOT Act. The House passed a compromise bill before COVID shut-downs really halted everything in Congress, though did so in such a way as to prevent Zoe Lofgren from offering any amendments. After the Senate failed to act, the provision (and two related ones lapsed). Then, a few weeks ago, the Senate passed a version that added an amendment from Mike Lee and Patrick Leahy that strengthened the amicus to the previously passed House bill. But an amendment offered by Ron Wyden and Steve Daines failed by one vote after Tom Carper said that Pelosi had warned him its passage would gut FISA (and after Bernie Sanders and Patty Murray didn’t make it for the vote). The operative language of their amendment read,

(C) An application under paragraph (1) may not seek an order authorizing or requiring the production of internet website browsing information or internet search history information.

Zoe Lofgren and Warren Davidson tried to pass that amendment in the House. Over a weekend of heated negotiations, they limited the Wyden-Daines language to apply just to US persons.

(C) An application under paragraph (1) may not seek an order authorizing or requiring the production of internet website browsing information or internet search history information of United States persons.

At first, Wyden endorsed the Lofgren-Davidson language. Except then Adam Schiff gave Charlie Savage a statement that suggested the amendment would only prevent the government from seeking to obtain Americans’ internet information, not prevent it altogether.

But in his own statement, Mr. Schiff put forward a narrower emphasis. Stressing the continued need to investigate foreign threats, he described the compromise as banning the use of such orders “to seek to obtain” an American’s internet information.

That led Ron Wyden to withdraw his support. Leadership withdrew that amendment from the Rule.

Schiff’s ploy seems to suggest one way the government is using Section 215.

Wyden had previously asked how each of three applications for Section 215 would appear in counts:

An order in which an IP address used by multiple people is the target
An order collecting all the people who visit a particular website
An order collecting all the web browsing and internet searches of a single user

I’ve argued in the past that the FBI wouldn’t go to the trouble of a Section 215 order for a person who was not otherwise targeted, the last bullet. Schiff’s willingness to limit collection to foreigners is consistent with that (because targeting non-US persons has a lower probable cause level), meaning that’s not the function the government is so intent on preserving.

Which leaves Wyden’s IP address used by multiple people and a website, what I have suggested might be VPNs and WikiLeaks. Those are the applications that Schiff (and Pelosi) are going to the mat to protect.

That makes something that happened in 2014 important. That year, FISC permitted the government to remain tasked on a selector under 702 (which can only target foreigners) even after finding that Americans were using the selector, provided the US person content was purged after the fact. Except ODNI made a list of enumerated crimes — virtually all of which exploit the Dark Web — that Section 702 content could be used to prosecute. Richard Burr codified that principle when the law was reauthorized in 2017.

Schiff has invoked the same principle — allowing the FBI to target a URL or IP, and in the name of obtaining foreign intelligence, obtaining the US person activity as well. Because this is not treated as “content,” the government may not be limited to instances where the US person activity is location obscured (though it’s possible this is just about obtaining VPN traffic, and not something like WikiLeaks).

Wyden called the resulting practice (remember, this is status quo), as “dragnet surveillance.”

“It is now clear that there is no agreement with the House Intelligence Committee to enact true protections for Americans’ rights against dragnet collection of online activity, which is why I must oppose this amendment, along with the underlying bill, and urge the House to vote on the original Wyden-Daines amendment,” Wyden said.

So once again — still — the government is using a foreign targeted law to obtain leads of Americans to investigate. That, apparently, is what Pelosi considers the key part of FISA: honey pots to identify Americans to investigate.

Meanwhile, DOJ doesn’t even like the changes Lee and Leahy implemented, falsely claiming that the law — which requires DOJ to meet the standards laid out voluntarily by FBI’s response to the DOJ IG Report — does nothing to address the problems identified by the IG Report.

The Department worked closely with House leaders on both sides of the aisle to draft legislation to reauthorize three national security authorities in the U.S.A. Freedom Act while also imposing reforms to other aspects of FISA designed to address issues identified by the DOJ Inspector General. Although that legislation was approved with a large, bipartisan House majority, the Senate thereafter made significant changes that the Department opposed because they would unacceptably impair our ability to pursue terrorists and spies. We have proposed specific fixes to the most significant problems created by the changes the Senate made. Instead of addressing those issues, the House is now poised to further amend the legislation in a manner that will weaken national security tools while doing nothing to address the abuses identified by the DOJ Inspector General.

Accordingly, the Department opposes the Senate-passed bill in its current form and also opposes the Lofgren amendment in the House. Given the cumulative negative effect of these legislative changes on the Department’s ability to identify and track terrorists and spies, the Department must oppose the legislation now under consideration in the House. If passed, the Attorney General would recommend that the President veto the legislation.

Trump, meanwhile, is opposing the bill because it doesn’t go far enough.

WARRANTLESS SURVEILLANCE OF AMERICANS IS WRONG!

Republicans are inventing reasons to oppose it after supporting it in March.

Back in March, Billy Barr said he could do what he needed to with EO 12333. It’s unclear how he’d coerce providers.

But Schiff’s efforts to defeat Wyden make it clear this is a function designed to identify Americans.

Update: I had thought a current vote was on FISA, but is on China sanctions, so I’ve deleted.

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Steve Bannon’s Bas-Relief Confession that Trump Told Him to Deny Discussing Sanction Relief

May 16, 2020/26 Comments/in 2016 Presidential Election, emptywheel, Mueller Probe /by emptywheel

After a week of writing about Mike Flynn and more Mike Flynn, I’m finally getting around to the transcripts the House Intelligence Committee wrote last week. A bunch of frothy right wingers have pointed to the transcripts as PROOF OF NO COLLUSION, which is hilarious. I’ve barely begun reviewing them, but some glaring holes in the investigation include:

The key players — Mike Flynn and Paul Manafort, but also Rick Gates — did not testify
Two witnesses (Michael Cohen and Roger Stone) were convicted for the lies they told to the committee and a third (Erik Prince) is reportedly under investigation, even if Billy Barr’s DOJ doesn’t prosecute Trump flunkies
Multiple witnesses (Michael Caputo, Steve Bannon, and Jared Kushner, for starters) denied knowing people or having evidence their Mueller materials show they had

Republicans mostly asked each witness, “did you collude?” which predictably elicited the “no” answers the frothers are now pointing to as PROOF. Democrats spent most of their time trying to get recalcitrant witnesses to answer questions they refused to answer rather than trying to corner them into something useful.

The investigation was a shit-show.

The craziest thing (thus far, anyway), is Steve Bannon’s two appearances. Bannon testified in January 2018 and invoked White House guidance to refuse to answer questions from both the transition and post-inauguration periods, periods others had addressed. He also claimed any communications of interest would have been turned over by the campaign, thereby hiding emails he had with Roger Stone using his personal email where they explicitly discussed Julian Assange.

When Bannon went back a month later, having consulted with Devin Nunes in the interim and after Nunes appears to have shared a transcript of Bannon’s first appearance with the White House, he provided the committee a bunch of questions he would answer — all “no” answers.

Here’s how just some of those questions parroted back (for the second time in the hearing) looked:

MR. CONAWAY: After November 8th, 2016, did you meet with Ambassador Kislyak?

MR. BANNON: No.

MR. CONAWAY: On March 27, 2017, The New York Times reported that in mid-December of 2016 Kushner met with Sergei Gorkov of the VEB. Were you aware of this meeting?

MR. BANNON: No.

MR. CONAWAY: Did you attend a December 2016 meeting with Kushner that Kushner had with Gorkov?

MR. BANNON: No.

MR. CONAWAY: Did Mr. Prince have any role in the current administration?

MR. BANNON: No.

MR. CONAWAY: Was there any discussion on January 27th, 2017, at the White House regarding Mr. Papadopoulos, who was contacted by the FBI that day?

MR. BANNON: No.

MR. CONAWAY: Has Mr. Papadopoulos had any contact with anyone at the White House concerning the fact that the FBI had approached him?

MR. BANNON: Not to my knowledge.

MR. CONAWAY: Was the fact that the FBI approached Mr. Papadopoulos on January 27th communicated to President Trump?

MR. BANNON: Not to my knowledge.

MR. CONAWAY: Did Mr. Trump ever discuss with you any conversations between Donald Trump Jr. and WikiLeaks after the election?

MR. BANNON: No.

MR. CONAWAY: Did you ever meet with Devin Nunes about the Russia investigation?

MR. BANNON: No.

MR. CONAWAY: While at the White House, were you ever instructed to take any action that you believe could hinder the Russian investigation in any way?

MR. BANNON: No.

MR. CONAWAY: Were you ever given any instruction at the White House that you felt might amount to an effort to obstruct justice?

MR. BANNON: No.

MR. CONAWAY: Did you have any conversations with Director Comey after the election about whether he would remain the head of the FBI?

MR. BANNON: No.

MR. CONAWAY: Once you were part of the administration, were you a part of any discussions about how to approach the Russian, vis-à-vis the sanctions, whether to do away with them or in any way minimize the effects of the sanctions?

MR. BANNON: No.

Here’s how Adam Schiff got Bannon to admit that he was literally reading from a script the White House gave him (remember that Bannon’s lawyer, William Burck, also represented White House Counsel Don McGahn).

MR. SCHIFF: Mr. Bannon, who wrote these questions?

[Discussion off the record.]

MR. BANNON: My understanding, Mr. Schiff, is that these came from the transcript.

MR. SCHIFF: No, no, no. The questions that Mr. Conaway just asked you the questions. I asked you earlier if you had been authorized by the White House to answer all in the negative. Who wrote these questions?

MR. BANNON: Same answer.

MR. SCHIFF: What’s the same answer? Who wrote the questions?

MR. BANNON: My understanding is they came from the transcript.

MR. SCHIFF: What transcript are you talking about?

MR. BANNON: This transcript of my first interview.

[snip]

MR. SCHIFF: Well, how were they produced? How do you know that the White House has authorized you to answer them? [Discussion off the record.]

MR. BANNON: My counsel informed me that these were the questions the White House authorized me to answer.

MR. SCHIFF: But you didn’t write these questions?

MR. BANNON: No.

MR. SCHIFF: And your counsel didn’t write these questions?

MR. BANNON: No.

MR. SCHIFF: So these questions were supplied to you by the White House?

[Discussion off the record.]

MR. BANNON: As far as I know.

The thing is, most of these are now recognizably misdirection from some known damning detail. For example, Bannon did not attend the November 30, 2016 meeting with Sergey Kislyak at Trump Tower, but he was invited. Bannon’s lack of knowledge of Jared Kushner’s December meeting with Sergei Gorkov doesn’t make the meeting itself less damning — arguably, it suggests Kushner kept it on a close hold — and it doesn’t rule out Bannon being involved in a meeting with Gorkov sometime after that. Bannon’s narrow denial that Erik Prince had a role in the administration distracts from Prince’s role as a go-between with Russia during the transition, something Bannon was personally involved with (and covered up by deleting his relevant text messages). There was a discussion among senior campaign officials of the link that WikiLeaks sent Don Jr in September 2016, but it was during the election, not after it. Bannon didn’t have conversations with Jim Comey about firing him, but he had a ton of conversations about firing Comey, eight times on May 3 and 4, 2017 alone. Even the questions about obstruction of justice are consistent with explicit requests that Bannon obstruct, but that took place somewhere else, like Mar-a-Lago or Bedminster (and it’s notable that Bannon’s initial testimony dramatically backed off some of the claims Bannon made to Michael Wolff that had just been published in Fire and Fury).

As Adam Schiff begins to figure out what happened, he asks questions that make it clear that Bannon did not meet — in person — with Nunes, but did speak to him on the phone.

MR. SCHIFF: Now, I see there’s a question on here, did you ever meet with Devin Nunes about the Russia investigation, and you’ve answered that “no.” But you’ve also answered, when my colleague asked you, that you have discussed — you had discussions with Mr. Nunes and you refused to answer the question about whether it was about the Russian investigation. Is that correct?

[Discussion off the record.]

MR. BANNON: However I answered, it’s in the transcript.

MR. SCHIFF: Let me just ask you again. Did you ever meet with Devin Nunes about the Russian investigation?

MR. BANNON: No.

MR. SCHIFF: Did you ever discuss the Russia investigation with Devin Nunes?

[Discussion off the record.]

MR. BANNON: That’s not a question I’m authorized to answer.

Even before that, Schiff cops on to Bannon’s denial about something — whether George Papadopoulos alerted the White House after he was first questioned about the FBI — that Bannon knows nothing about.

MR. SCHIFF: So one of the questions that you were supplied by the White House was, has Mr. Papadopoulos had any contact with anyone at the White House concerning the fact that he had been — that the FBI had approached him? How do you know the answer to that, Mr. Bannon?

[Discussion off the record.]

MR. BANNON: Can you just ask the question again?

MR. SCHIFF: Yes. One of the questions that the White House gave you to answer to our committee was, has Mr. Papadopoulos had any contact with anyone at the White House concerning the fact that the FBI had approached him?

MR. BANNON: I think I said, “Not to my knowledge.”

MR. SCHIFF: So you really did don’t know, do you?

MR. BANNON: That’s — not to my knowledge.

MR. SCHIFF: Why did the White House propose a question to you that you couldn’t answer within your knowledge?

[Discussion off the record.]

MR. BANNON: You have to ask the White House that.

In Papadopoulos’ Congressional testimony (which took place in October 2018, so six months after Bannon’s second HPSCI interview), the coffee boy would admit that he emailed Marc Kasowitz, who was then Trump’s personal attorney, sometime after his FBI interview.

Q And you didn’t talk to anyone from the Trump organization about that interview with the FBI?

A I don’t think I did, no.

Q So you were interviewed again by the FBI —

A I can’t remember if I reached out to Marc Kasowitz about either that or my subpoena from the Senate. And I emailed him and I said, Look, would you be interested in representing me? I think that’s what happened. But I don’t — I can’t remember exactly why I emailed him, but I think I emailed Marc Kasowitz’ firm sometimes after the interview, but I don’t remember if he ever responded or anything like that.

This post writes up what we know about Papadopoulos’ testimony.

This makes it clear, then, that the script Bannon was given was a ham-handed attempt to get a bunch of denials in the record, denials of things that actually did happen.

Among the questions the White House included was one designed to get him to deny he had discussed eliminating sanctions on Russia.

MR. CONAWAY: Once you were part of the administration, were you a part of any discussions about how to approach the Russian, vis-à-vis the sanctions, whether to do away with them or in any way minimize the effects of the sanctions?

MR. BANNON: No.

Of course, this “no” answer only says Bannon didn’t continue to discuss ending sanctions on Russia after inauguration, but he did beforehand.

There is testimony on the Mueller Report about Bannon’s personal involvement in discussions about the Russian sanctions imposed on December 28, 2016. But Bannon — in testimony on February 12, 2018, so three days before he read this script before HPSCI — claimed to have forgotten those conversations.

Shortly thereafter, McFarland and Bannon discussed the sanctions. 1235 According to McFarland, Bannon remarked that the sanctions would hurt their ability to have good relations with Russia, and that Russian escalation would make things more difficult. 1236 McFarland believed she told Bannon that Flynn was scheduled to talk to Kislyak later that night. 1237

[snip]

In addition to her conversations with Bannon and Reince Priebus, at 4:43 p.m., McFarland sent an email to Transition Team members about the sanctions, informing the group that “Gen [F]lynn is talking to russian ambassador this evening.” 1251 Less than an hour later, McFarland briefed President-Elect Trump. Bannon, Priebus, Sean Spicer, and other Transition Team members were present. 1252

[snip]

Flynn recalled discussing the sanctions with Bannon the next day and that Bannon appeared to know about Flynn’s conversation with Kislyak. 1274 Bannon, for his part, recalled meeting with Flynn that day, but said that he did not remember discussing sanctions with him. 1275

[snip]

Flynn recalled discussing the sanctions issue with incoming Administration official Stephen Bannon the next day. 100 Flynn said that Bannon appeared to know about Flynn’s conversations with Kislyak, and he and Bannon agreed that they had “stopped the train on Russia’s response” to the sanctions. 101

1275 Bannon 2/12/18 302, at 9.

101 Flynn 1/19/18 302, at 4-5. Bannon recalled meeting with Flynn that day, but said he did not remember discussing sanctions with him. Bannon 2/12/18 302, at 9.

The White House gave Bannon a script, telling him to deny his involvement in reaching out to Russia on sanctions. And the specific form of the question — which asks about doing away with them — suggests those conversations on December 28, 2016 went further than the Mueller Report describes.

Which explains why Trump is trying to ensure Flynn avoids prison time for hiding that detail.

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Ric Grenell Declassified George Papadopoulos’ Brags about Fucking Older Women, but Not about Befriending Sergey Millian

May 7, 2020/11 Comments/in 2016 Presidential Election, emptywheel, Mueller Probe /by emptywheel

In the name of exposing “FISA abuse,” Lindsey Graham got Ric Grenell to declassify details of George Papadopoulos bragging about fucking a woman who was 42.

CT: I was banging a 42-year-old. That’s the oldest I ever went. And she was the best sex I ever had in my life.

CHS: You know you can’t, uh, knock down them…

CT: But 42, that’s like borderline old, you know.

But Grenell left what DOJ IG treated as a reference to Sergey Millian living in Brooklyn classified (see page 66).

Grenell did so even though this reference to “Sergey” has already been formally declassified, for the DOJ IG Report (though I would argue that in places DOJ IG’s transcriptions are not always fair descriptions of what the transcripts show).

Papadopoulos did not say much about Russia during the first conversation with Source 3, other than to mention a “friend Sergey … [who] lives in … Brooklyn,” and invite Source 3 to travel with Papadopoulos to Russia in the summertime.

Perhaps this just stems from bureaucratic incompetence. But the Trump Administration made a fairly aggressive decision to declassify details about Sergey Millian for the DOJ IG Report because it served their narrative about Christopher Steele. But when it came time to claim–abundant evidence in the transcripts to the contrary–that George Papadopoulos wasn’t an obvious subject for a counterintelligence investigation, the Trump Administration treated one of the most damning details as classified.

This matters, because the frothy right has been ginning up a scandal over the delayed release of the House Intelligence transcripts, and the fact that, having been told everything is ready, Adam Schiff is taking a few days to review what Grenell has done to ensure the integrity of the redactions. They’re doing so even as both Mark Warner and Richard Burr spent the beginning of John Ratcliffe’s confirmation making sure the declassification of their report on the Russian operation would be quick and non-partisan.

But we’ve already got hints that Grenell is politicizing the declassification process. In a 90-page transcript, he redacted the detail that most undermined the frothy right narrative.

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Chuck Grassley and His Two Republican Friends

April 9, 2020/28 Comments/in Impeachment /by emptywheel

After spending several days hemming and hawing about it, Chuck Grassley has sent a letter to President Trump, asking that he “provide more detailed reasoning for the removal of Inspector General Atkinson no later than April 13, 2020.”

The letter cites the basis for which Congress can make such demands: Inspector Generals work for both Congress and the Executive.

Further, the IC IG and indeed all inspectors general (IG) are designed to fulfill a dual role, reporting to both the President and Congress, to secure efficient, robust, and independent agency oversight. To ensure inspectors general are fully capable of performing their critical duties, and in recognition of their importance both to efficient administration and to the legislative function, Congress set clear, statutory notice requirements for their potential removal.

And it lays out how Trump’s move — not just putting Michael Atkinson on 30-day administrative leave (something Obama did , but also naming Thomas Monheim as Atkinson’s replacement immediately, something without precedent that Adam Schiff also raised concerns about.

Further, according to public reports, Mr. Atkinson already was placed on administrative leave, effectively removing him from his position prior to the completion of the statutorily required notice period.

[snip]

Please also provide your views on how the appointment of an acting official prior to the end of the 30 day notice period comports with statutory requirements.

The letter is precisely the kind of Congressional pushback on a removal that laws governing the appointments of Inspectors General envision. This is not just a show; Grassley has a long history of caring deeply about this stuff (and twice defended Schiff’s efforts to keep the identity of the Ukraine whistleblower secret).

The problem with his letter is this:

Just two of the Senators who co-signed this letter, Susan Collins and Mitt Romney, are Republicans (Gary Peters, ranking member on Homeland Security and Governmental Affairs Committee, also signed). Grassley unsurprisingly didn’t get the hackish Ron Johnson, who as the Chair of HGSAC should make a pretense of giving a damn about oversight, to sign on. He didn’t get the Senator with the biggest role in overseeing the ICIG, Senate Intelligence Chair Richard Burr, to sign on (though Mark Warner is Ranking Member on the committee). And he didn’t get any of the other Senators — like Lisa Murkowski or Lamar Alexander — who purportedly considered voting for impeachment to sign on.

And that means, without enough Republicans to be able to threaten that a majority of the Senate would back an effort to enforce this request, Trump can and might well just blow this request off.

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The Very Specific Details about the COVID Warnings from the “Deep State”

April 8, 2020/115 Comments/in COVID-19 /by emptywheel

Last Friday, Trump fired Michael Atkinson, the Intelligence Community Inspector General who treated the Ukraine whistleblower complaint as mandated by law. Yesterday, Adam Schiff wrote a letter to Acting Director of National Intelligence Ric Grenell, warning him that the Committee was reviewing whether Trump fired Atkinson to undercut ongoing investigations and asking for assurances Grenell had not and would not tamper in anything the replacement Acting IG, Thomas Monheim, was investigating.

“The Committee is reviewing the circumstances of Mr. Atkinson’s dismissal, including whether his termination was intended to curb any ongoing investigations or reviews being undertaken by his office,” Schiff wrote.

Schiff asked Grenell to provide a written certification to his committee that he would not interfere with the work of future officials in that role and that he certify he has never interfered in the work of Thomas Monheim, now the acting inspector general of the intelligence community.

Grenell responded by acting like the online troll he is, falsely claiming that Schiff had “leaked” (AKA, released) the letter before he actually sent it to him.

Take all that as background to this ABC story. It describes both the source of intelligence behind a report on how aggressive the virus was in Wuhan, and the chain via which it ended up in Trump’s Presidential Daily Brief in early January.

Concerns about what is now known to be the novel coronavirus pandemic were detailed in a November intelligence report by the military’s National Center for Medical Intelligence (NCMI), according to two officials familiar with the document’s contents.

The report was the result of analysis of wire and computer intercepts, coupled with satellite images. It raised alarms because an out-of-control disease would pose a serious threat to U.S. forces in Asia — forces that depend on the NCMI’s work. And it paints a picture of an American government that could have ramped up mitigation and containment efforts far earlier to prepare for a crisis poised to come home.

“Analysts concluded it could be a cataclysmic event,” one of the sources said of the NCMI’s report. “It was then briefed multiple times to” the Defense Intelligence Agency, the Pentagon’s Joint Staff and the White House.

From that warning in November, the sources described repeated briefings through December for policy-makers and decision-makers across the federal government as well as the National Security Council at the White House. All of that culminated with a detailed explanation of the problem that appeared in the President’s Daily Brief of intelligence matters in early January, the sources said.

The intelligence came from wire and computer intercept and satellite images, both incredibly sensitive intelligence. And the report made its way from the National Center for Medical Intelligence in November to DIA, the Joint Staff, and the White House in December, to Trump in early January.

The report doesn’t actually push the time when Trump could be expected to know of this warning, it pushes the timeline back for others in the chain of command. But it does make it clear that people in that chain of command took it seriously enough to keep elevating it.

And then, Trump ignored it.

Yes, this is leaking to add to the political accountability on Trump’s refusal to listen. But it’s also a remarkably detailed report about the work of intelligence — the value that the Deep State brought to an issue that threatens to sink Trump’s presidency — that, partly because of his intellectual limits and partly because of his distrust of the “Deep State,” Trump ignored.

If this stuff can’t be shared via proper channels we may see more of it in the press in the coming months.

Update: On Twitter, Brian Beutler noted that George Stephanopoulos laid the groundwork for this story when hosting Mike Esper on Sunday.

STEPHANOPOULOS: You said at top of this interview that the Pentagon has been ahead of the curve every day, and you mentioned in January. But did the Pentagon receive an intelligence assessment on COVID in China last November from the National Center for Medical Intelligence of DIA?

ESPER: Oh, I can’t recall, George. But our — we have many people that watch this closely. We have the premier infectious disease research institute in America, within the United States Army. So, our people who work these issues directly watch this all the time.

As you know, the first patient in the United States was discovered in late January. We activated our global pandemic response plans on 1 February. I issued guidance to the force for force protection on 3 February. And we didn’t see our first casualty in the United States — and God rest their soul — until 29 February.

So, you can see, we were weeks ahead of this in terms of preparing our own force and opening up our stockpile to the rest of the government.

STEPHANOPOULOS: But that’s in January, because, reportedly, this assessment was done in November, and it was briefed to the NSC in early December to assess the impact on military readiness, which, of course, would make it important to you, and the possible spread in the United States.

So, you would have known if there were briefed to the National Security Council in December, wouldn’t you?

ESPER: Yes, I’m not aware of that. I will tell you, again, our folks work this all the time. That’s why we have a global pandemic response plan that I initiated on February 1st. That’s why we have stockpiles of strategic supplies, whether it’s masks, gowns, PPE, ventilators, all those things we need.

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Adam Schiff Totally Gutted the Section 215 Notice Provision in the FISA Reauthorization Bill

March 11, 2020/17 Comments/in FISA /by emptywheel

I’m working on a series of posts about the bill reauthorizing Section 215 that will be pushed through Congress today. Effectively, Adam Schiff took the Jerry Nadler bill, watered down some key provisions, but added a bunch of symbolic certifications that would do nothing to eliminate the kinds of problems in the Carter Page application, probably are less effective than certifications presiding FISA judge James Boasberg required the other day, but give Republicans who are too stupid to understand FISA the ability to claim victory.

One of the ways that Schiff has watered down the Nadler bill is particular alarming. It effectively guts efforts to require notice to defendants for Section 215. Here’s the language in his bill:

(2) USE IN TRIALS, HEARINGS, OR OTHER PROCEEDINGS.—For purposes of subsections (b) through (h) of section 106—

(A) information obtained or derived from the production of tangible things pursuant to an investigation conducted under this section shall be deemed to be information acquired from an electronic surveillance pursuant to title I, unless the court or other authority of the United States finds, in response to a motion from the Government, that providing notice to an aggrieved person would harm the national security of the United States; and

(B) in carrying out subparagraph (A), a person shall be deemed to be an aggrieved person if

(i) the person is the target of such an investigation; and

(ii) the activities or communications of the person are described in the tangible things that the Government intends to use or disclose in any trial, hearing, or other proceeding.

Here’s Nadler’s original language:

(2) USE IN TRIALS, HEARINGS, OR OTHER PROCEEDINGS.—For purposes of subsections (b) through (h) of section 106—

(A) information obtained or derived from the production of tangible things pursuant to an investigation conducted under this section shall be deemed to be information acquired from an electronic surveillance pursuant to title I; and

(B) in carrying out subparagraph (A), a person shall be deemed to be an aggrieved person if—

(i) the person is the target of such an investigation; or

(ii) the activities or communications of the person are described in any tangible thing collected pursuant to such an investigation.

As it was, Nadler’s language had a loophole, in that it changed the definition of aggrieved person. Under 18 USC §1801, an aggrieved person is anyone who is either the target or who has been caught up in a wiretap or other collection targeting them.

“Aggrieved person” means a person who is the target of an electronic surveillance or any other person whose communications or activities were subject to electronic surveillance.

Under Nadler’s bill, someone is aggrieved only if they are the “target” of “such an investigation. But “investigation” there seems to pertain to the original 215 order, meaning that if someone started a second investigation into someone based off information discovered in 215 (which is often used for lead generation) it’s not even clear they would count as the target, even if they were the ones being prosecuted or put on a no-fly list or some such thing.

Still, under Nadler’s bill, that person would likely still get notice if their activities — say, buying a pressure cooker or access a certain website — would have been collected using the 215 order.

But Schiff’s bill utterly guts even that. He does so in three ways.

Working from the bottom, Schiff requires that you be both the target of the investigation and that your activities or communications got collected under 215. It appears to mean that only those who are the target of the original 215 order would be aggrieved (there are still a number of bulky orders that don’t target any person, so if an investigation arose out of a lead from such bulky orders, no one would ever be aggrieved under this definition).

Then, Schiff only counts someone as aggrieved if the government will introduce the evidence collected under 215 order. That is, if someone is targeted in part for buying a pressure cooker, but the pressure cooker lead led to a bunch of other evidence, that person might never count as aggrieved even if the original investigation into her came from purchasing a pressure cooker.

Plus, this language seems to invite parallel construction. If the government wanted to introduce evidence of that pressure cooker purchase, they could just subpoena the store directly.

Finally, and most outrageously, the government can still move not to give that notice based on a claim that providing it “would harm to the national security of the United States.” Outrageously, they don’t even have to convince a judge that such harm is real. A court “or other authority of the United States” could agree with such a finding. The Attorney General is “an authority of the United States.” So Attorney General Bill Barr — the father of the first subpoena based dragnet — could make a motion saying that notice of a dragnet would harm the national security of the United States, and Attorney General Bill Barr could agree with Bill Barr that that’s the case.

This is how the whole dragnet problem started in the first place, when, in 1992, Bill Barr decided that he could authorized secret dragnets.

It’s hard to believe the bill would make such ridiculous changes unless there were something DOJ is trying to hide. Whatever the reason, this language utterly guts the notice provision, while still pretending it actually does include one.

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Posts

Some Perspective on the Politicized Leak Investigation Targeting Adam Schiff

This is not spying

This is “just” metadata

Apple (and other tech companies) wouldn’t have known this was Adam Schiff

The subpoena was overly broad and not tailored to limit damage to Schiff

Barr continued to appoint unqualified prosecutors to do his political dirty work

FBI never deletes evidence

Both an IG investigation and a Special Counsel are inadequate to this investigation

Luckily, Swalwell and Schiff know some members of Congress who can limit such abuses

The renewed focus on Schiff’s metadata would have come after Schiff disclosed Nunes’ ties to Rudy Giuliani’s grift

Rat-Fucker Rashomon: Guccifer 2.0 the Go-Between

Racism and Russia: The Topics Brian Murphy Claims He Was Ordered to Lie About

“These Actions Have Targeted Not Only against Russia, But Also Against the President Elect”

Adam Schiff Makes Clear FBI Is Using Section 215 Like the 2014 Exception

Steve Bannon’s Bas-Relief Confession that Trump Told Him to Deny Discussing Sanction Relief

Ric Grenell Declassified George Papadopoulos’ Brags about Fucking Older Women, but Not about Befriending Sergey Millian

Chuck Grassley and His Two Republican Friends

The Very Specific Details about the COVID Warnings from the “Deep State”

Adam Schiff Totally Gutted the Section 215 Notice Provision in the FISA Reauthorization Bill

Interesting links

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