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Trump Risks that Every Action Matt Whitaker Takes as Attorney General Can Be Legally Challenged

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George Conway (Kellyanne’s spouse, whom Trump considered to be Solicitor General) continues his habit of criticizing Trump from a conservative legal stance. This time, he joins Neal Katyal, author of the Special Counsel regulations under which Mueller operates, to argue that Trump’s appointment of Matt Whitaker is unconstitutional because Trump can’t name someone who hasn’t been Senate confirmed when a Senate confirmed candidate is available. The whole op-ed — which relies on a recent Clarence Thomas concurrence — is worth reading, but my favorite line is where they call Whitaker a constitutional nobody.

We cannot tolerate such an evasion of the Constitution’s very explicit, textually precise design. Senate confirmation exists for a simple, and good, reason. Constitutionally, Matthew Whitaker is a nobody. His job as Mr. Sessions’s chief of staff did not require Senate confirmation. (Yes, he was confirmed as a federal prosecutor in Iowa, in 2004, but President Trump can’t cut and paste that old, lapsed confirmation to today.) For the president to install Mr. Whitaker as our chief law enforcement officer is to betray the entire structure of our charter document.

I’m just as interested in what three rising Democratic House Chairs (House Judiciary Committee’s Jerrold Nadler, HPSCI’s Adam Schiff, and Oversight and Government Reform’s Elijah Commings) did, along with Dianne Feinstein. In the wake of Jeff Sessions’ resignation, they sent letters to every relevant department warning them to preserve all records on the Mueller investigation and Sessions’ departure. In their press release, they referred to Sessions departure not as a resignation, but as a firing.

Last night, House Judiciary Committee Ranking Member Jerrold Nadler (D-NY), Intelligence Committee Ranking Member Adam Schiff (D-CA), Oversight and Government Reform Committee Ranking Member Elijah Cummings (D-MD), and Senate Judiciary Committee Ranking Member Dianne Feinstein sent letters to top Administration officials demanding the preservation of all documents and materials relevant to the work of the Office of the Special Counsel or the firing of Attorney General Jeff Sessions.

In their letters, the Members wrote:  “Committees of the United States Congress are conducting investigations parallel to those of the Special Counsel’s office, and preservation of records is critical to ensure that we are able to do our work without interference or delay. Committees will also be investigating Attorney General Sessions’ departure. We therefore ask that you immediately provide us with all orders, notices, and guidance regarding preservation of information related to these matters and investigations.”

Letters were sent to the White House Counsel Pat Cipollone, FBI Director Chris Wray, Director of National Intelligence Dan Coats, CIA Director Gina Haspel, Deputy U.S. Attorney for the Southern District of New York Robert Khuzami, Treasury Secretary Steven Mnuchin, NSA Director Paul Nakasone, IRS Commissioner Charles Rettig, and Acting Attorney General Matt Whitaker. [my emphasis]

Even the letters themselves, while they don’t use the word “firing,” emphasize the involuntary nature of Sessions’ ouster.

Our understanding is that Attorney General Jeff Sessions has been removed at the request of the President. We ask that you confirm that the Justice Department has preserved all materials of related to any investigations by the Special Counsel’s office, including any related investigations conducted by any component of the Justice Department. We also ask that you preserve all the materials related to the departure of Attorney General Sessions.

While it’s not clear whether they more basis to believe this was a firing rather than a resignation, they’re proceeding as if it was, legally, a firing. That’s crucial because the only way that Whitaker’s appointment, as someone who is not Senate confirmed, would be legal under the Vacancies Reform Act is if Sessions legally resigned. The Democrats seem to suspect they can argue he did not.

And that’s important because (as Katyal and Conway argue) if his appointment is not legal, than nothing he does as Attorney General is valid.

President Trump’s installation of Matthew Whitaker as acting attorney general of the United States after forcing the resignation of Jeff Sessions is unconstitutional. It’s illegal. And it means that anything Mr. Whitaker does, or tries to do, in that position is invalid.

Plus, by demanding preservation of the records and framing this in terms that suggest Whitaker’s appointment was not legal (I’m not sure I agree, but encourage HJC to ask Katyal and Conway to argue the case for them), HJC lays out a basis to claim standing to challenge this, particularly if and when Whitaker makes a decision (such as preventing HJC from obtaining any report Mueller writes) that will cause them injury as an independent branch of government.

Again, I’m not sure I agree with the Katyal/Conway legal argument, though if HJC can prove that Sessions was fired then it’s clear Whitaker was not legally appointed. But these two challenges pose a real risk for Trump. It risks not just decisions pertaining to the Mueller investigation, but even things like surveillance approvals, can be challenged by anyone harmed by them (who gets notice of it). That’s an unbelievable risk for a position as important as Attorney General.

Back when a guy named Robert Mueller had his FBI tenure extended two years in 2011, Tom Coburn worried that even that action, done with Senate approval, would make the approvals Mueller made under Section 215 (this was before we knew the scope of the phone dragnet) legally suspect.

Could you envision colorable challenge to use of 215 authority during your 2 year extension of power?

While I have no problem with you staying on for two more years, I do have concerns we could get mired in court battles [over 215] that would make you ineffective in your job.

Coburn was worried about one (or a few) surveillance programs. The Attorney General touches far more than the FBI Director, and Trump’s DOJ could spend just as much time in court trying to defend the actions of his hatchetman.

And it looks like both the author of the statute governing Mueller’s appointment and the people who will oversee DOJ in a few months have real questions about the legality of Whitaker’s appointment.

On Corey Lewandowski’s Big Legal Bills and Mueller’s Deadline from Rosenstein

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Quarterly political spending reports are out and they provide some hints about which current or former Trump aides have been spending a lot of time with Mueller’s investigators. The NYT reported the other day that the Trump campaign has paid $173,000 in the past quarter to the law firm representing Corey Lewandowski.

The campaign also paid $173,000 to Mintz Levin, a law firm that has helped Mr. Trump’s first campaign manager, Corey Lewandowski, handle inquiries related to the Russia investigations.

The suggestion that Lewandowski has spent quality time with Mueller’s team of late is particularly interesting, for several reasons. First, Lewandowski had a number of key interactions with George Papadopoulos regarding the outreach from Russia, including drafting Trump’s first foreign policy speech, which Papadopoulos reportedly told Ivan Timofeev was a sign that the campaign was interested in pursuing a Trump-Putin meeting.

April 27: Papadopoulos to Corey Lewandowski

“to discuss Russia’s interest in hosting Mr. Trump. Have been receiving a lot of calls over the last month about Putin wanting to host him and the team when the time is right.”

April 27: Papadopoulos authored speech that he tells Timofeev is “the signal to meet”

[snip]

May 4, Papadopoulos to Lewandowski (forwarding Timofeev email):

“What do you think? Is this something we want to move forward with?”

May 14, Papadopoulos to Lewandowski:

“Russian govemment[] ha[s] also relayed to me that they are interested in hostingMr. Trump.”

[snip]

June 19: Papadopoulos to Lewandowski

“New message from Russia”: “The Russian ministry of foreign affairs messaged and said that if Mr. Trump is unable to make it to Russia, if a campaign rep (me or someone else) can make it for meetings? I am willing to make the trip off the record if it’s in the interest of Mr. Trump and the campaign to meet specific people.”

Lewandowski was also the person that the House Intelligence Committee treated most curiously. HPSCI originally interviewed him in January, during the phase when HPSCI seemed to be interviewing key witnesses to be able to pass on to Trump how they would testify. At that point, Mueller had not yet contacted Lewandowski.

Even though Lewandowski never worked in the Administration, in that first appearance with HPSCI, he invoked privilege over parts of his testimony. On March 8, HPSCI brought him back, the very last witness in their so-called investigation. After his three hour appearance, Adam Schiff discussed subpoenaing Lewnadowski to compel him to answer questions he had still refused to answer (Schiff had also demanded HPSCI compel full testimony from Hope Hicks). In the same discussion of compelling Lewandowski to answer questions,  Schiff suggested the committee should subpoena Stephen Miller.

After Lewandowski’s testimony had wrapped, Schiff raised a new name he wanted to speak to: White House aide Stephen Miller.

Which is curious because WSJ reports that the legal defense fund supporting specific former campaign staffers paid Akin Gump $115,000.

The fund directed most of its third-quarter spending to legal consulting, paying nearly $115,000 to the law firm Akin Gump Strauss Hauer & Feld LLP and another $8,500 to Schertler & Onorato LLP. The latter firm has represented Keith Schiller, Mr. Trump’s longtime bodyguard who was interviewed by the House Intelligence Committee as part of its Russia investigation.

It’s not publicly known which former campaign staffer Akin Gump represents, but two of the few key Trump people whose lawyers have not been publicly identified are Brad Parscale (though the campaign would probably pay for his legal defense at this point) and Miller.

Miller is the person whom Papadopoulos has said he would have told about the Russian offer of emails had he actually connected by phone the day he learned of it.

Meanwhile, Bloomberg reports (possibly based on Congressional sources) that Mueller is preparing to offer “reports” on his investigation.

Mueller is close to rendering judgment on two of the most explosive aspects of his inquiry: whether there were clear incidents of collusion between Russia and Donald Trump’s 2016 campaign, and whether the president took any actions that constitute obstruction of justice, according to one of the officials, who asked not to be identified speaking about the investigation.

[snip]

Rosenstein has made it clear that he wants Mueller to wrap up the investigation as expeditiously as possible, another U.S. official said.

This is actually not at all surprising. Trump is going to start firing people after the election, so Mueller’s ability to work unimpeded may be dramatically curtailed shortly after that. If he’s going to bring a big indictment, he has to do so in that time frame. Plus, after securing Paul Manafort and Michael Cohen’s cooperation, he has cooperating witnesses on all the elements of a conspiracy Mueller had identified by last March, not to mention slam dunk obstruction charges tied to floated pardons. Everyone is scheduled to start being sentenced after the election, too. With the hints he has gotten extensive Lewandowski testimony (and reports that he had obtained far more documentation pertaining to Don Jr’s actions), it would suggest that Mueller has at least tracked the game of telephone between Russians offering emails to the candidate anxious to accept that offer.

So this tells us what we might expect: the denouement of the Mueller investigation will happen, unless Trump works to undercut it, just after the election.

Update: In their plan for further investigation released in March, HPSCI Dems described that in his second committee appearance Lewandowski refused, “to answer questions regarding his communication with President Trump regarding former FBI Director Comey, Special Counsel Mueller, and Attorney General Sessions, as well as his communications with certain administration officials pertaining to the June 9, 2016 meeting at Trump Tower.” So it sounds like he’s also got evidence pertaining to the June 9 meeting.

As I disclosed in July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

If You Have Rick Gates (and Omarosa) You Don’t Need George Papadopoulos

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The Trumpian bubble — likely led by right wing legal talking head Victoria Toensing — may be about to lead a young couple to do something insanely stupid.

Yesterday, Simona Mangiante Papadopoulos, George’s wife, tweeted out a request for a pro bono lawyer for her spouse.

A few hours later, she tweeted out notice that she would follow up with those who have specific expertise.

Simona Papadopoulos wants to ditch George’s plea deal at the stupidest possible moment

As she explained to Chuck Ross, who reports from deep within that Trumpian bubble, she and George are thinking of backing out of his plea deal (at the stupidest imaginable time), and instead suing the government and taking their chances with the evidence the government had in hand when Papadopoulos pled guilty to charges that undercharged his conduct, as well as the evidence the government obtained over the course of a year of Papadopoulos pitching for and then engaging in a plea deal.

“George should drop off his plea agreement, in my opinion,” Mangiante Papadopoulos told The Daily Caller News Foundation when contacted after her tweet.

“The idea is to find a lawyer to drop off his plea agreement and sue the government,” she added, noting that she and her husband plan to wait until after a court hearing on Friday to make a final decision.

[snip]

Papadopoulos faces sentencing in the case on Sept. 7. The special counsel’s office will submit its recommendations for sentencing this Friday. While lying to the FBI carries a maximum sentence of five years in prison, defendants in similar cases often receive six months or less in jail.

Remember: one reason Papadopoulos, relying on the advice of some of the more competent attorneys in this matter, pled guilty is because the FBI had evidence he had accepted payment from an Israeli asking for covert assistance. That’s on top of the lies to the FBI he already pled guilty to, not to mention the clear obstruction of deleting his Facebook account, and a key early role in setting up a conspiracy with Russia. When Stefan Halper (working for the FBI and therefore likely recording conversations) discussed these matters with Papadopoulos in September 2016, Papadopoulos admitted that being involved in them would amount to treason (it’s not treason, but his opinion that it might be makes his later actions far more damning).

This is what the Papadopouloses are reportedly entertaining, due no doubt to an entirely mistaken understanding of their status, one obtained by listening to people like Victoria Toensing and Chuck Ross.

Several things seem to have happened to get us to this point.

Mueller almost certainly has several other witnesses who can attest to knowledge Russians were offering emails

Consider: along with whatever else Rick Gates gave Mueller’s team in February when he became state’s evidence, he also probably described what Paul Manafort (and possibly, Don Jr) understood about the dirt Russians were offering to the Trump campaign when both attended the June 9 Trump Tower meeting. Indeed, one of the details included in Papadopoulos’ plea deal is that Gates and Manafort discussed how to respond to Russian (and Greek) offers for a meeting.

On or about May 21, 2016, defendant PAPADOPOULOS emailed another highranking Campaign official, with the subject line “Request from Russia to meet Mr. Trump.” The email included the May 4 MFA Email and added: “Russia has been eager to meet Mr. Trump for quite sometime and have been reaching out to me to discuss.”2

2 The government notes that the official forwarded defendant PAPADOPOULOS’s email to another Campaign official (without including defendant PAPADOPOULOS) and stated: “Let[‘]s discuss. We need someone to communicate that OT is not doing these trips. It should be someone low level in the campaign so as not to send any signal.”

We’ve also just learned that Omarosa also provided evidence to Mueller’s team in February, including her claim that Don Sr knew the Russians were offering emails before WikiLeaks released them.

That detail — that the campaign knew Russians were offering emails as dirt to help Trump — was one of the things that might have helped Papadopoulos avoid a prison sentence. But since he pled, others have almost certainly provided substantially the same information, based both on what Papadopoulos told them, and on what they in turn told their superiors on the campaign or what their superiors told them.

That is, Papadopoulos has served his purpose, and there are now better placed or more credible witnesses for any conspiracy trial.

Victoria Toensing likely recruited the Papadopouloses for her propaganda mission

Then there’s the most likely explanation for how the Papadopouloses got themselves in this position, considering ditching a plea deal and instead taking their chances with the evidence George participated in the case in chief.

Back in March, Chuck Ross started a series of articles — for which one or both of the Papadopouloses, Sam Clovis, and probably Clovis’ (and briefly, Trump’s) lawyer Toensing, were sources — naming lifetime GOP operative Stefan Halper as an informant (presenting evidence he sought to find out what Papadopoulos knew about the emails, possibly cultivated Carter Page, and got a meeting with Clovis to get an introduction to Papadopoulos). If you didn’t look too closely (as Ross did not) the stories served the Devin Nunes effort to suggest the investigation into Trump’s conspiracy with the Russians was based on a rocky foundation. If you looked closely, however, Ross’ series was actually quite damning. It confirmed Adam Schiff’s revelation that the Russians had specified that they intended to leak the dirt they were dealing to help Trump and that Papadopoulos believed, at the time he lied to the FBI about his interactions with Joseph Mifsud, that if he were involved in “hacking” emails it would amount to treason.

To those trying to rescue Trump from his own conspiracy exposure, the Papadopouloses were an easy mark. Perhaps offering a promise of a pardon, they got the two to break one of the requirements of George’s plea: that he not communicate with any of a list of co-conspirators, directly or indirectly. Surely Sam Clovis was on that list, not to mention the President.

That may explain why, as Nunes and his cronies started demanding every record pertaining to Halper, the government moved towards sentencing Papadopoulos, without waiting for him to testify in any trial.

There have been signs before yesterday that the government was not going to agree that Papadopoulos fulfilled his end of the plea deal. But yesterday is a pretty good sign that George doesn’t expect to get the sweet deal he might once have gotten, probably no prison time, had Papadopoulos not bought into conspiracy theories offered by people representing other clients.

The misleading mirror Papadopoulos would see in the Trumpian bubble

Much of this seems to be driven by Simona. I don’t have any reason to credit the rampant speculation she’s actually part of Russia’s influence operation. Rather, I just think she’s naive, working in a foreign country, and vastly underestimating the legal jeopardy the life she married into is in, in part because she is consuming shitty reporting from people within the Trumpian bubble.

Of which the Chuck Ross article reporting all this is a splendid example.

On top of omitting the fact that Papadopoulos obstructed the Russian investigation by deleting his Facebook and cell phone, and omitting Papadopoulos’ very damning comment about treason, Ross spins everything so as to totally misinform the frothy right, much to Simona’s misfortune.

For example, Ross offers Simona’s explanation up, as if it helps the legal case.

Mangiante Papadopoulos told TheDCNF that Papadopoulos believed Mifsud was referring to emails Clinton deleted from her private email server.

While this line has managed to confuse the frothy right about whether, in accepting dirt leading into the June 9 meeting, it would still amount to accepting a thing of value from a foreigner, it doesn’t much matter what Papadopoulos believed, either on April 26, 2016 or on January 27, 2017 (and repeated again a month later). What matters is after having learned the Russians wanted to release some emails that would help the Trump campaign, the campaign took overt actions accordingly.

Then Ross suggests that because some late summer meetings didn’t take place, it absolves Papadopoulos of initiating an effort that led to other meetings taking place.

Papadopoulos also attempted to set up meetings between campaign officials and Russian government officials, but according to the statement of offense submitted by the special counsel’s office, the meetings never took place.

Nope! George still took overt actions as part of a conspiracy, to say nothing of agreeing to join the conspiracy over and over.

Ross then suggests that because Papadopoulos didn’t have a lawyer at the first of two meetings at which he lied to the FBI, it means he didn’t commit a crime.

Prosecutors claim that during a Jan. 26, 2017 [sic], interview, Papadopoulos, who did not have a lawyer present, falsely claimed he met Mifsud prior to joining the campaign in March 2016. But Papadopulos first met Mifsud about a week after learning he would join the Trump team.

Remember, Papadopoulos not only repeated this lie a month later, with the benefit of counsel, but also swore that it was a lie when he pled guilty.

Ross then repeats a canard he has repeated earlier, that by offering up Mifsud’s name (but hiding Ivan Timofeev, the Russian he was engaging in call and response with) it’s exonerating for George.

As evidence that Papadopoulos did not intend to deceive the FBI, Mangiante Papadopoulos claims Papadopoulos volunteered Mifsud’s name to the agents who interviewed him.

Ross pretends that Mueller has questions, regarding Alexander Downer’s testimony, that only a bunch of frothy congressmen have questions about.

Details remain vague, but Downer allegedly claimed Papadopoulos mentioned Russia had derogatory information about Clinton.

Republican lawmakers have also questioned the premise of the FBI investigation and Downer’s role in the matter. One question has been why the information from Downer took over two months to reach the FBI.

Ross then repeats a whole bunch of baseless conspiracies about Stefan Halper — the very conspiracies that contributing to likely got the Papadopouloses in trouble — as if they were true because Devin Nunes said they were.

She also believes that government officials attempted to set up her husband with a series of approaches by government informants, including former Cambridge professor Stefan Halper.

[snip]

Halper, a veteran of four Republican presidential administrations, also made contact with Trump campaign advisers Carter Page and Sam Clovis.

The FBI may use informants at an assessment level. By the time Halper approached Papadopoulos, the investigation into the Trump campaign was a predicated full investigation. Ergo, it doesn’t help Papadopoulos’ case that the FBI used an informant, because that’s what the FBI does, with the long-time explicit knowledge of Devin Nunes and everyone else who oversees the FBI.

And finally, Ross indulges Simona’s fantasy of spinning the approach from Sergei Millian (pretending this approach was out of the blue, rather than something discussed with Ivan Timofeev in one of the Facebook communications Papadopoulos tried to hide) as a second use of an informant rather than a pretty obvious part of Russia’s outreach to Trump and his surrogates, dangling a Trump Tower deal.

Millian contacted Papadopoulos out of the clear blue on LinkedIn on July 22, 2016. The pair became fast friends, meeting several times during the course of the campaign. Mangiante Papadopoulos says George claimed Millian offered him $30,000 a month to work on Russian energy issues from inside the Trump administration.

I get that Chuck Ross’ job is to feed the frothy right, to present conspiracies in isolation from the public information that would pop those conspiracies.

But it seems like these two are feeding each other, Simona giving Ross the latest scoop on his serial conspiracy theory, and Ross feeding her insane plan to ditch a plea deal and face what are likely to be foreign agent and conspiracy charges instead of whatever sentence Mueller pitches tomorrow.

I mean, George is a self-important little shit who showed willingness to sell out his country (to at least two other countries) for a bit of fast money.

But he’s being used, badly, here.

As I disclosed last month, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Three Data Points on George Papadopoulos

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The frothy right has grabbed ahold of this Chuck Ross story, thinking it helps their case, without realizing that the main finding in it actually confirms something Adam Schiff noted in February (which Ross struggled to understand at the time). So I’d like to point out what Papadpoulos said when.

May 10: “Russians might use material that they have on Hillary Clinton in the lead-up to the election, which may be damaging”

Per Ross’ quotes from Alexander Downer’s April 28 interview, here’s what Papadopoulos told Downer on May 10, 2016.

“During that conversation, [Papadopoulos] mentioned the Russians might use material that they have on Hillary Clinton in the lead-up to the election, which may be damaging,” Downer told The Australian.

Downer said he felt the information “seemed quite interesting” and “was worth reporting.”

That’s mostly consistent with a redacted passage of the Schiff memo, which as I noted at the time must say something to the effect of Russia said it had materials that that it would release to help Trump, though given the public record I suspect there’s a dispute about whether hurting Hillary in a two-person race amounts to helping Trump.

George Papadopoulos revealed [redacted] that individuals linked to Russia, who took interest in Papadopoulos as a Trump campaign foreign policy adviser, informed him in late April 2016 that Russia [two lines redacted]. Papadopoulos’s disclosure, moreover, occurred against the backdrop  of Russia’s aggressive covert campaign to influence our elections, which the FBI was already monitoring.

That Papadopoulos had not told Downer in May they were emails was made clear by the next line in the Schiff memo, which made it clear HPSCI (but not the US government) only learned Russians had said the damaging material was email (which, if Papadopoulos can be trusted, he took to be the 30,000 emails that Hillary deleted, which the Russians would only have had if they had previously hacked her) when Papadopoulos’ plea was released.

We would later learn in Papadopoulos’s plea that the information the Russians could assist by anonymously releasing were thousands of Hillary Clinton emails.

In any case, Downer’s public statements, as summarized by Ross, confirm what Schiff claimed back in February: Papadopoulos told a virtual stranger in May 2016 that someone had recently approached him, a newly-minuted Trump advisor, and told him Russia had damaging material on Hillary that they were thinking of releasing closer to the election.

Downer makes it clear he reported the Papadopoulos within 48 hours because it “seemed quite interesting” and “was worth reporting.” The Australians didn’t tell the US, however, until July, after the DNC release made it look like Papadopoulos had predicted that event several months earlier. In response, the FBI opened a CI investigation, and Peter Strzok  got on a plane and interviewed Downer. It’s possible he checked in with Stefan Halper, who had been chatting up Carter Page, about whom the FBI had had enough concern to interview him back in March, for a few weeks. It’s also possible Strzok asked the Brits what they knew about Joseph Mifsud (or it’s possible NSA started targeting Mifsud and captured his communications with the Russians). It’s also possible that the anonymous “Trump campaign policy adviser [who] testified [to SJC] that Mr. Papadopoulos informed him that he had information on Hillary Clinton from the Russians,” went to the FBI in the wake of the DNC release, so before the FBI (presumably) asked Halper to ask Papadopoulos more questions.

Whatever happened, in September, Halper met with Sam Clovis and from that basically created a reason to invite Papadopoulos to London to do research.

Mid-September: “Hacking emails would be treason”

In mid-September, after his assistant Azra Turk had already broached the subject (I’m not aware that Ross has ever revealed how Papadopoulos responded to her) Halper asked Papadopoulos whether he was involved in the release of the emails. According to one version among several, Ross reports that Papadopoulos said that “hacking” the emails would be treason.

Sources familiar with Papadopoulos’ version of events say that during one conversation, Halper asked Papadopoulos whether he was involved in the release of DNC emails. Papadopoulos denied it, telling Halper that hacking emails would be treason.

Of course, that answer is nonsensical. Hacking emails is a CFAA violation, among other things. Absent knowing cooperation with Russian spies, it’s not treason. Moreover, as Ross depicts the question, Halper asked if he “was involved in the release of DNC emails,” which is different than hacking them. Did Papadopoulos instead suggest that being “involved in the release of DNC emails” hacked by Russia would be treason?

It’s a good question because, in spite of that answer and his subsequent lies to FBI, Papadopoulos doesn’t believe he “colluded” with Russia because he, “did not see, handle or disseminate Clinton emails, according to the source with information on the Downer meeting.” Note, he’s pointedly not denying that he told the campaign about the damaging material in the context of efforts to set up increasingly senior-level  meetings with the Russians.

January 27, 2017: Mifsud “actually told [Papadopoulos] that the Russians had emails of Clinton. That guy told me [the Russians] have dirt on her [and that] they have thousands of emails.”

When the FBI interviewed Papadopoulos on January 27, 2017, he provided a detail he hadn’t to Downer (but which FBI may have already confirmed elsewhere): that Mifsud had specified, even before the Democrats knew about it, that the Russians had thousands of emails.

Now, at least according to the public record, up until this point (and even later), the FBI hadn’t done one of the most basic things they do in investigations, which they can do on a relevance standard (meaning the person in question need not be suspected of any wrong-doing). They had not yet obtained Papadopoulos’ call records, nor had they searched already collected Section 702 data to see if Papadopoulos had had communications with any foreigner already under a full FBI investigation. The latter would have definitely alerted the FBI to something that Papadopoulos hid in his interviews with the FBI (and tried to hide by deleting his Facebook account, something Ross always leaves out of his efforts to spin Papadopoulos’ honesty): in addition to Mifsud and the fake Putin niece, he had been communicating with (and passing communications onto the campaign) Ivan Timofeev, someone Papadopoulos believed to be employed by the Russian government.

DOJ’s public Papadopoulos documents are curiously silent about whether he admitted that Mifsud had told him the Russians planned on releasing the emails to hurt Hillary (though I guarantee you his case file makes it clear).

Amid the squeals of surveillance, that point is worth noting. Again, at least according to the public record, it was some time after Papadopoulos had told Downer that the Russians had damaging material they might release closer to the election to hurt Hillary and after Papadopoulos had told the FBI that the damaging material in question was “thousands of emails” before the FBI took one of the most basic investigative steps, figuring out whom Papadopoulos had been talking to during that period. Though FBI put a preservation order on his campaign cell phone in March, it’s even possible, given Papadopoulos’ arrest in the wake of the disclosure of the June 9 meeting earlier in July 2017, that FBI didn’t take that step until after the later Russian offer of dirt on Hillary became known.

Trump may well think this amounts to spying. But given the year of concern about Russian meddling, it looks even more like an effort to bend over backwards to avoid touching materials that might impact campaign issues.

Update: Thanks to Mark S for this link to the Downer piece. Ross did not include this stronger language that the material definitely would be damaging to Clinton. Note the bolded stronger language.

Of the conversation at the upmarket Kensington Wine Bar, Downer recalls: “We had a drink and he (Papadopoulos) talked about what Trump’s foreign policy would be like if Trump won the election.

“He (Trump) hadn’t got the nomination at that stage. During that conversation he (Papadopoulos) mentioned the Russians might use material that they have on Hillary Clinton in the lead-up to the election, which may be damaging.’’

Did Downer think, “Oh boy, this is intriguing?”

“Well, it was worth reporting,’’ he said. “It wasn’t the only thing we reported. We reported (back to Australia) the following day or a day or two after … it seemed quite interesting.’’

Did you realise you were one of the first people to have known about this dirt?

Downer doesn’t hesitate: “He didn’t say dirt, he said material that could be damaging to her. No, he said it would be damaging. He didn’t say what it was.’’

[snip]

“For us we were more interested in what Trump would do in Asia. By the way, nothing he (Papadopoulos) said in that conversation indicated Trump himself had been conspiring with the Russians to collect information on Hillary Clinton. It was just that this guy (Papadopoulos) clearly knew that the Russians did have material on Hillary Clinton — but whether Trump knew or not? He didn’t say Trump knew or that Trump was in any way involved in this. He said it was about Russians and Hillary Clinton; it wasn’t about Trump.”

[my emphasis]

On Credico and Stone and Hillary’s Purported Libya Email

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WSJ has an underreported story revealing that Roger Stone emailed Randy Credico seeking specific emails from Wikileaks in September 2016.

Former Trump campaign adviser Roger Stone privately sought information he considered damaging to Hillary Clinton from WikiLeaks founder Julian Assange during the 2016 presidential campaign, according to emails reviewed by The Wall Street Journal.

The emails could raise new questions about Mr. Stone’s testimony before the House Intelligence Committee in September, in which he said he “merely wanted confirmation” from an acquaintance that Mr. Assange had information about Mrs. Clinton, according to a portion of the transcript that was made public.

In a Sept. 18, 2016, message, Mr. Stone urged an acquaintance who knew Mr. Assange to ask the WikiLeaks founder for emails related to Mrs. Clinton’s alleged role in disrupting a purported Libyan peace deal in 2011 when she was secretary of state, referring to her by her initials.

“Please ask Assange for any State or HRC e-mail from August 10 to August 30–particularly on August 20, 2011,” Mr. Stone wrote to Randy Credico, a New York radio personality who had interviewed Mr. Assange several weeks earlier. Mr. Stone, a longtime confidant of Donald Trump, had no formal role in his campaign at the time.

I say it’s underreported for two reasons: as presented, WSJ doesn’t really explain why this is news. It doesn’t show that the emails were responsive to HPSCI’s request, a point made by Stone’s attorney in the story and not refuted by Adam Schiff. Furthermore, Credico claims he never really asked Julian Assange for any emails (which may be one of the reasons Stone’s lawyer deems the exchange unresponsive). Schiff claims that this exchange suggests Stone was misleading at best in his testimony.

Adam Schiff (D., Calif.), the ranking member of the House Intelligence Committee, said the emails hadn’t been provided to congressional investigators. “If there is such a document, then it would mean that his testimony was either deliberately incomplete or deliberately false,” said Mr. Schiff, who has continued to request documents and conduct interviews with witnesses despite the committee’s probe concluding earlier this year said.

But for reasons I’ll explain, I think Stone may have been technically correct in his statement.

Another way the story is underreported is because WSJ doesn’t explain — or even consider — what emails Stone might be talking about, a silence that has led sloppy readers to assume these are a reference to known hacked emails.

The email may be a reference to emails believed by some to be hacked!

But absent any explanation what the emails are, they should be assumed to be the emails released by State in response to Jason Leopold and others, which Wikileaks only curated. There are several that might fit Stone’s criteria, including some of the ones based on intelligence from Sid Blumenthal that drove the nutters crazy.

That said, the withheld emails may be newsworthy for reasons WSJ doesn’t lay out.

First, consider the fact that as part of Don Jr’s SJC interview, he was asked about people who may have been involved in the Peter Smith effort to find Hillary’s deleted emails, from Russian hackers if need be. The last person included was Stone.

Q. Did you or anyone else make any effort to obtain Hillary Clinton’s e-mails?

A. No.

Q. Did you or anyone else ever receive Hillary Clinton’s e-mails other than something that might have been publicly published ?

A. No.

Q. Do you know who Peter Smith is?

A. No .

Q. Were you aware of Mr. Smith’ s efforts to obtain Hillary Clinton’s  e-mails?

A. I don’t recall knowing Peter Smith. So I’m not aware of his efforts. Who was he?

Q. There’s been public reporting on him. So it’s in the press.

A. Okay. I haven’t seen it.

Q. Do you know if any of the following people made any efforts to obtain Secretary Clinton’s e-mails. Michael Flynn?

A. I don’t know.

Q. Steve Bannon?

A. I don ‘t know.

Q. Kellyanne Conway?

A. I don’t know.

Q. Sam Clovis?

A. I don ‘t know.

Q. Carter Page?

A. I don’t know.

Q. Roger Stone ?

A. No idea.

We shouldn’t necessarily make that much of the fact that Stone appears on this list, both because no one on it has been confirmed to have been involved in Smith’s efforts, and because he’d be the most likely person to be involved in any case. Nor do I make too much out of the fact that Don Jr answered differently on Stone — “no idea” — than the “I don’t know” he offered for everyone else.

That said, this does seem to confirm Stone is among the people alleged to be involved in the effort.

The Peter Smith operation is something Stone assiduously avoided addressing in his statement to Congress.

Now consider that on August 10, 2016, Stone tweeted, “Assange, you see has all the @HillaryClinton e-mails @HumaAbedin thought she and @CherylMills erased #busted.” (Thanks to Susan Simpson for noting that Stone’s deleted account can be found and searched on the Trump Twitter Archive site.) That tweet would have fallen right between the time Stone told Sam Nunberg he had been speaking with Assange on August 5 and the time he started chatting via DM with Guccifer 2.0 on August 14. That’s also the timeframe Matt Tait said Smith reached out having already received emails from someone on the Dark Web. 

A few weeks later, right around the time the DNC emails were dumped by Wikileaks—and curiously, around the same time Trump called for the Russians to get Hillary Clinton’s missing emails—I was contacted out the blue by a man named Peter Smith, who had seen my work going through these emails. Smith implied that he was a well-connected Republican political operative.

[snip]

Smith had not contacted me about the DNC hack, but rather about his conviction that Clinton’s private email server had been hacked—in his view almost certainly both by the Russian government and likely by multiple other hackers too—and his desire to ensure that the fruits of those hacks were exposed prior to the election. Over the course of a long phone call, he mentioned that he had been contacted by someone on the “Dark Web” who claimed to have a copy of emails from Secretary Clinton’s private server, and this was why he had contacted me; he wanted me to help validate whether or not the emails were genuine.

When Smith couldn’t validate the emails he had received, he had the hackers themselves forward them to WikiLeaks.

Mr. Smith said after vetting batches of emails offered to him by hacker groups last fall, he couldn’t be sure enough of their authenticity to leak them himself. “We told all the groups to give them to WikiLeaks,” he said. WikiLeaks has never published those emails or claimed to have them.

All of which is to say that, if Stone was involved in this effort, he may have known emails pertaining to Libya (perhaps forgeries written to fit into the known, officially released ones) had gotten forwarded to WikiLeaks as early as August. In which case his nudge to Credico the next month may have been an effort to flush out the emails he believed to be in WikiLeaks’ possession.

Which would mean his response to Congress — that Stone was just looking for confirmation WikiLeaks had materials he thought they did — would be technically accurate.

There’s one other detail of interest in the WSJ story. Credico, like Stone, has not been interviewed by Mueller’s team. And like Stone, absent a direct interview, Credico appears to be trying to make his case in the public sphere.

Messrs. Stone and Credico said they haven’t been contacted by Mr. Mueller’s office, which declined to comment.

[snip]

After earlier asserting his Fifth Amendment right against self-incrimination in the House probe, Mr. Credico now says he is willing to talk with investigators. He said he met on Wednesday with the committee’s Democratic staff members for what he called a limited conversation about WikiLeaks, the 2016 campaign and Mr. Stone.

As Mr. Credico has become more vocal about what he says are discrepancies in Mr. Stone’s account, Mr. Stone has responded with a series of threats, according to emails and text messages reviewed by the Journal.

In early April, in one of those emails, Mr. Stone accused Mr. Credico of serving as an informant.

“Everyone says u are wearing a wire for Mueller,” the April 7 email said. Two days later, Mr. Stone wrote: “Run your mouth = get sued.” Mr. Credico denies being an informant.

It’s possible that Stone was using Credico as a go-between to try to confirm what he already knew, to pressure WikiLeaks to release documents he and his rat-fucking associates had planted there.

Which might make the withheld emails far more newsworthy.

Update: Because there was some confusion, I’ve added more of the Don Jr transcript to make the context clear.

A Thinking Person’s Guide to the Stefan Halper Conspiracy Theory

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For some time, I’ve been agnostic about whether Chuck Ross’ series on Stefan Halper derived from his own discussions with George Papadopoulos, Carter Page, and Sam Clovis, or whether he relied on leaks from HPSCI.

Today, he gave one of the leading comments he often does, about Paul Ryan’s claimed concern about “FISA abuse.” (Ryan, remember, pushed through 702 reauthorization this year without reforming a single one of the abuses laid out in this report, but apparently Chuck’s gonna play along with the notion that Ryan gives a shit about FISA.)

That mirrors Ross’ own logically nonsensical focus on the dossier as a source for the Carter Page FISA order in conjunction with Halper. Which, especially since other journalists are making it clear the Halper focus is coming from Hill Republicans, suggests Ross was getting leaks from Republicans.

That’s even more true of this interview with Sam Clovis. In it, Clovis makes it very clear the meeting did not stick out in his memory.

It was an academic meeting. It was not anything other than him talking about the research that he had done on China.

[snip]

No indication or inclination that this was anything other than just wanting to offer up his help to the campaign if I needed it.

After describing how he hadn’t opened up attachments Halper sent later in the month, he said, “that is how little this registered with me.”

And yet, somehow, by March, someone had told Ross about this meeting.

Halper also requested and attended a one-on-one meeting with another senior campaign official, TheDCNF learned. That meeting was held a day or two before Halper reached out to Papadopoulos. Halper offered to help the campaign but did not bring up Papadopoulos, even though he would reach out to the campaign aide a day or two later.

Clovis seems to derive his memory of the meeting, in significant part, from the documentation he does (four emails setting the meeting up) and doesn’t (any notes) have about it.

There’s a record of the exchange of emails that we had, four emails to set the appointment.

[snip]

I had my notebook. Always take notes and always keep track of what’s going on. And there wasn’t anything — I didn’t have any notes on the meeting cause there must not have been anything substantive that took place.

That suggests someone knew to go back to look for communications involving Halper. Now, if HPSCI requested all the comms campaign aides had with investigative target Carter Page, then Clovis would have turned over these emails (which mentioned Page but probably discussed China, not Russia), and HPSCI staffers could have found the tie. If HPSCI only asked for Russia-related comms involving Page, then someone got Toensing or Clovis to search for Halper emails themselves.

Clovis explains that he’s bothered, now, about the meeting because he thinks he was used as an excuse to reach out to George Papadopoulos.

He had met with Carter Page. He had used that to get the bona fides to get an appointment with me.

[snip]

Then I think he used my meeting as bona fides to get a meeting with George Papadopoulos.

Remember, one of the inane complaints in the Nunes memo is that the Carter Page FISA application mentioned Papadopoulos.

The Schiff memo explains that Papadopoulos got mentioned because, after Alexander Downer told the FBI that Papadopoulos had told him the Russians were going to release Hillary emails to help Trump, they opened a counterintelligence investigation into the Trump campaign.

In other words, the frothy right likely believes, like Clovis, that Halper was networking as a way to get to Papadopoulos, and that in some way ties to the FISA application against Page.

And he may well have done so! As TPM clarifies some confusion created by WaPo, both Page, Clovis, and Clovis lawyer Victoria Toensing agree that Halper mentioned Page when he reached out to Clovis.

Clovis’ lawyer, Victoria Toensing, previously said, according to the Washington Post that the informant had not mentioned his other Trump contacts when reaching out to Clovis. Clovis said he wasn’t sure “where she got that information,”since she had access to the emails setting up the September 2016 meeting.

Toensing, in an phone interview Tuesday with TPM, backed up Clovis’ account. She told TPM that the informant had said in an email to Clovis that Page had recommended that they meet. She also claimed that the informant had told Page when they met at the conference that he was a big fan of Clovis’. Page confirmed Toensing’s account in an email to TPM.

Halper met with Clovis on September 1 and then reached out to Papadopoulos the next day.

Though note: Page says Halper raised Clovis at the July conference where they met, a meeting that occurred before dossier reports started getting back to FBI (particularly to the people investigating the hack-and-leak) and before the Papadopoulos report. That either suggests the FBI already had concerns about Clovis by then, or Halper was more generally networking with Page along with checking out someone who had been a live counterintelligence concern in his own right since March and for years beforehand.

Here’s where things start to go off the rails for this whole conspiracy theory, though. Clovis (who, remember, testified to Mueller’s team in the days before Papadopoulos’ cooperation agreement was unsealed, and who therefore may have his own false statements to worry about) believes that the FBI had no business trying to ask Papadopoulos about his April knowledge of Russians dealing Clinton emails in a way that would not arouse Papadopoulos’ suspicion.

What unsettled me … is what he tried to do with George Papadopoulos and that was to establish an audit trail from the campaign or somebody associated with the campaign back to those Clinton emails, whether or not they existed we don’t know.

Clovis believes, as does the entire frothy right, that the FBI had no reason to check out leads from someone who predicted the Russians would leak dirt from Hillary to help Trump a month before it became publicly known.

What were they investigating? To be investigating, there has to be some indication of a crime. And there does not appear to have been any indication for a crime. And by the way the Fourth Amendment protects you in your place and your person from investigation without a clear indication of what, uh, probable cause.

Somehow, Clovis conveniently forgets that stealing emails is a crime. And the FBI had been investigating that crime since June 2016, a month before learning that Papadopoulos might have known about the stolen emails before the FBI itself did.

In other words, at the core of this entire conspiracy theory (on top of pretending that Carter Page wasn’t already a counterintelligence concern in March, as all the designated GOP stenographers do) is the GOP fantasy that the FBI had no business trying to chase down why Papadopoulos knew of the theft before the DNC itself did.

And they’re making an enormous case out of the fact that FBI used Halper — a lifelong Republican to whom Papadopoulos could and did lie to without legal jeopardy — to interview someone Clovis claims was “ancillary” to the campaign at the time.

It’s also clear to me that they misread George’s relationship with the campaign entirely, so, because he was not, he was ancillary at best at that point.

So that appears to be where this is heading: an attempt to criminalize a Republican networking with a goal of learning whether George Papadopoulos, and through him, Sam Clovis and the rest of the campaign, committed what Papadopoulos himself has said (though this is legally incorrect) might amount to treason.

Ultimately, it comes down to this: the GOP doesn’t think Russian theft of Democratic emails was a crime and therefore doesn’t think FBI had reason to investigate Papadopoulos’ apparent foreknowledge of that crime.

Why Are Republicans Still Squealing about FISA Applications If HPSCI Report Cedes Carter Page Concerns?

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Republicans in Congress continue to make fairly breath-taking demands on Rod Rosenstein and Christopher Wray in what seems to be an attempt to create a bogus claim of non-responsiveness that Trump can use to fire one or both of them.

First there was the demand that the House Intelligence Committee get all of FBI’s non-grand jury records on the Mueller investigation, a demand Paul Ryan backed. Then there was the push to publish the Nunes memo over DOJ’s objections. More recently, after Wray’s doubling the number of FBI staffers (to 54) in an attempt to meet a Bob Goodlatte document deadline for FISA, Hillary investigation, and McCabe firing materials proved insufficient, Jeff Sessions has put Chicago’s US Attorney, John Lausch, in charge of the response. As with Sessions’ selection of Utah US Attorney John Huber to review other GOP demands, Sessions seems to be giving himself and his deputies cover from fairly ridiculous GOP demands.

Nevertheless, such concessions have not entirely sheltered Trump’s main targets from the kinds of complaints that might expose Robert Mueller’s investigation below them. Mark Meadows, one of the lead attack dogs in this congressional obstruction effort, even suggested Congress might impeach Rosenstein for failing to meet a 2-week deadline on a Bob Goodlatte subpoena.

Through it all, the complaints that FBI used the Steele dossier as one piece of evidence in Carter Page’s FISA application, persist. This, in spite of the fact that Page had been under FISA surveillance years before, and in spite of the fact that all sides agree that the counterintelligence investigation into Trump’s aides started in response to the George Papadopoulos tip from Australia.

This, in spite of the passage from the Schiff memo (including one redacted sentence) that seems to assert that FBI considered Page an on-going counterintelligence concern.

DOJ cited multiple sources to support the case for surveillance Page — but made only narrow use of information from Steele’s sources about Page’s specific activities in 2016, chiefly his suspected July 2016 meetings in Moscow with Russian officials. [entire short sentence redacted] In fact, the FBI interviewed Page in March 2016 about his contact with Russian intelligence, the very month candidate Donald Trump named hi a foreign policy advisor.

And the Schiff memo is consistent with what Sheldon Whitehouse (among the few other people who had read the application at the time) said.

Whitehouse: I’ve got to be careful because some of this is still classified. But the conclusion that I’ve reached is that there was abundant evidence outside of the Steele dossier that would have provoked any responsible FBI with a counterintelligence concern to look at whether Carter Page was an undisclosed foreign agent. And to this day the FBI continues to assert that he was a undisclosed Russian foreign agent.

Importantly, however, it’s no longer just former prosecutors in the Democratic party who seem to confirm that Page was a real counterintelligence concern, and therefore legitimately a FISA target. At least, that’s what these two passages from the GOP House Intelligence Report suggest.

If you’re complaining that the Intelligence Community didn’t inform Trump about that members of his campaign team were “assessed to be potential counterintelligence concerns,” (and this likely includes Paul Manafort, as well as Page), then you can’t very well complain if FBI obtained a FISA warrant once those counterintelligence concerns left the campaign team. Hell, you’re practically inviting the FBI to obtain such a warrant while the counterintelligence concern is on the campaign, to help warn the candidate.

I know this is a bit to ask, but the GOP should not be able to have it both ways, to try to discredit the Trump investigation by pointing to the use of the Steele dossier in targeting Page, even while demanding FBI should have shared what it knew about Page because he posed a risk to Trump.

Lordy, There Were Tapes

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No, not of Stormy Daniels and Trump — though there appear to be tapes of that too! But of Trump’s conversations with Jim Comey.

Here’s another section of the Democratic report on all the things HPSCI didn’t investigate.

After firing FBI Director James Comey on May 9, 2017, President Trump tweeted on May 12, 2017: “James Comey better hope that there are no “tapes” of our conversations before he starts leaking to the press!” On June 9, 2017, the Committee sent White Counsel Donald McGahn a letter requesting that, “the White House inform the Committee if there exist now, or at any time have existed, any recordings, memoranda, or other documents within the possession of the White House which memorialized conversations between President Donald J. Trump and former FBI Director James Comey.” On June 23, 2017, the Committee received a response letter from the Assistant to the President for Legislative Affairs referring the Committee to “President Trump’s June 22, 2017, statement regarding this matter” as its official response. The letter quotes in full the President’s statement that was made in the form of successive tweets on Twitter, in which the President stated that he has “no idea whether there are ‘tapes’ or recordings” of his conversations with James Comey and that the President “did not make” and does “not have any such recordings.”

On June 29, 2017 the Committee sent the White House a second bipartisan letter urging the White House to appropriately and fully comply with the Committee’s June 9 request and clarifying that, should the White House not respond fully, “the Committee will consider using compulsory process to ensure a satisfactory response.” The Committee made clear that the President’s statement on Twitter, and the White House’s letter referring to the President’s statement, were only partially responsive to the Committee’s request. By only referring to the President’s statement, the White House’s letter did not clarify for the Committee whether the White House has any responsive recordings, memoranda, or other documents.

The White House responded that same day—June 29, 2017—stating: “To clarify, the White House’s previous response to your letter advising you that the White House has no recordings, together with the President’s public statements on the matter, constitute our response to your request.” As the Minority made clear to the Majority at the time, the White House’s two responses are woefully inadequate and sidestep the Committee’s explicit requests by not acknowledging or addressing (1) whether “recordings, memoranda, or other documents” at “any time have existed” within the “possession of the White House which memorialized conversations between President Donald J. Trump and former FBI Director James Comey”; and (2) whether any memoranda or other documents “exist now” in the White House’s possession memorializing the same.

The Minority has a good faith reason to believe that the White House does in fact possess such documentation memorializing President Trump’s conversations with Director Comey.

Subsequent press reporting revealed the existence of a memorandum reportedly composed by President Trump and Stephen Miller that referenced President Trump’s communications with Director Comey. The Committee should subpoena to the White House to produce all responsive documents.

Effectively the passage notes the following:

  • June 9: HPSCI members from both parties sent a request for tapes or memoranda
  • June 23: The day after Trump tweeted that he didn’t know if there were tapes, the White House responded that the President didn’t make tapes
  • June 29: Members from both parties sent a letter noting the WH response did not state whether it had any recordings or memoranda
  • June 29: The WH responded the same day stating that it has no recordings (and remaining silent about memoranda)

That’s when the Republicans got cold feet. Having been given an answer allowing for the possibility that tapes had been made (and destroyed), and a memo was written up about the conversation.

Maybe that’s the one McGahn was hiding in his safe, the one John Dowd complained about?

The debate in Mr. Trump’s West Wing has pitted Donald F. McGahn II, the White House counsel, against Ty Cobb, a lawyer brought in to manage the response to the investigation. Mr. Cobb has argued for turning over as many of the emails and documents requested by the special counsel as possible in hopes of quickly ending the investigation — or at least its focus on Mr. Trump.

Mr. McGahn supports cooperation, but has expressed worry about setting a precedent that would weaken the White House long after Mr. Trump’s tenure is over. He is described as particularly concerned about whether the president will invoke executive or attorney-client privilege to limit how forthcoming Mr. McGahn could be if he himself is interviewed by the special counsel as requested.

The friction escalated in recent days after Mr. Cobb was overheard by a reporter for The New York Times discussing the dispute during a lunchtime conversation at a popular Washington steakhouse. Mr. Cobb was heard talking about a White House lawyer he deemed “a McGahn spy” and saying Mr. McGahn had “a couple documents locked in a safe” that he seemed to suggest he wanted access to.

Even more interesting than what this does for the obstruction case against people like McGahn, it suggests Trump continued his habit of taping his meetings from his practice earlier in his career.

That might be as significant for our understanding of the June 9, 2016 meeting as it is for any meetings Trump had with Comey.

Why Do You Send Your Digital Guy to Meet with the Russian Ambassador?

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The HPSCI Democrats have released the report they should have had ready to go last night: their 21-page report on all the thing the HPSCI Russian investigation didn’t cover but should have. It’s an interesting list (though it seriously lets the GOP off the hook for treating this investigation as an obstructive lark). I’ll likely reflect on what kind of mirror it holds up to the Republican sense of which witnesses they had to vet for Trump.

For now, I want to point at an interesting little detail. In the section describing why HPSCI should know more about the Trump campaign’s digital operations, the report reveals that Jared Kushner sent the Trump campaign Assistant Director of Data Analysis, Avi Berkowitz, to go meet with Russian Ambassador Sergey Kislyak a month after the election, around the same time Russia was floating back channels so banks could bail out Kushner’s failing family real estate empire.

Trump Campaign Digital Operation: The Committee ought to interview all relevant persons involved or associated with the Trump campaign’s digital operation to determine whether the campaign coordinated in any way with Russia in its digital program. The Committee will not be able to fully evaluate the campaign’s digital operation without speaking to a broader crosssection of individuals who can provide greater insight into the digital operation’s day-to-day activities or its relationship with Cambridge Analytica. The Committee also must interview individuals from other companies who conducted technology-related work on behalf of the Trump campaign or on behalf of other entities being funded through independent expenditures to gain a full picture of whether there was any coordination between Russia’s extensive social media efforts on Trump’s behalf and the campaign itself.

For example, Avraham (Avi) Berkowitz, served as Assistant Director of Data Analytics on the Trump Campaign. He was also an associate of Jared Kushner and Brad Parscale. The Committee has reason to believe that Mr. Kushner may have dispatched Mr. Berkowitz to meet with Russian Ambassador Kislyak in December 2016. Theresa Hong, who served as Digital Content Director for the Trump campaign, should also be asked to testify. Ms. Hong has spoken to the press about the campaign’s digital operation and her team’s work alongside Cambridge Analytica.

That very same month, I asked whether dark marketing had a role in all the mobs seemingly providing pressure in support of Trump at key moments.

That Berkowitz made that visit did get reported last spring. But not with the emphasis that Berkowitz was so central to the campaign’s digital organization.

Maybe (as someone suggested to me on Twitter) Jared was just sending Berkowitz to retrieve the thumb drives they had shared during the campaign?

Andy Finds an Acorn: The Searches of Carter Page’s Devices

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I’ve long argued that Trump opponents should include Andrew McCarthy among the right wing Trump defenders they read. That’s true, in part, because he at least feigns to be considering the public evidence (though I think he has long since gotten swept up in tribalism). Moreover, as a former prosecutor who worked on some high visibility national security cases, he knows how these things worked fifteen years ago.

His piece on the Adam Schiff memo is typical of his current work. Virtually every single point is easily refuted; most are laughable, such as when he claims the FBI’s use of his 2013 interview to prosecute some spies means his March 2016 interview was truthful.

The memo does note that “the FBI also interviewed Page multiple times about his Russian intelligence contacts.” Apparently, these interviews stretch back to 2013. The memo also lets slip that there was at least one more interview with Page in March 2016, before the counterintelligence investigation began. We must assume that Page was a truthful informant since his information was used in a prosecution against Russian spies and Page himself has never been accused of lying to the FBI.

McCarthy also adheres to the GOP propaganda line that “Democrats conveniently omit is that … the Russian spies explicitly regarded him as an ‘idiot’ (and they had not even seen him on cable TV),” which I mocked in this piece at Vice.

The Republican response to the evidence that the Trump campaign named Page a foreign policy advisor around the same time the FBI interviewed him over suspected ties with Russian spies is perhaps the most pathetic thing in here. Among other things, it complains that the Schiff memo doesn’t mention that “a Russian intelligence officer called Page ‘an idiot.’”

So the latest Memoghazi arguments might best be summarized this way: After Democrats convincingly argued Trump made a suspected Russian asset a key foreign policy advisor, Republicans insisted that doesn’t matter because the suspected Russian asset was a moron.

On one point (a point I’ve been making), however, McCarthy is right.

The Schiff memo reveals, for the first time, that DOJ obtained a FISA order covering both electronic surveillance and “physical search.” Not many people understand this, but DOJ uses physical search orders not just to authorize FBI agents to search through a person’s home, but also to search through that person’s electronic devices (and cloud providers’ cloud storage). As I explained in my post on FISA and the Space-Time Continuum, using a physical search order allows the government to search far back in time.

Domestically, there are two kinds of collection: 1805, which is the collection of data in motion — an old fashioned wiretap, and 1824, which is called a “physical search” order. The government likes to hide the fact that the collection of data at rest is accomplished with an 1824 physical search order, not 1805. So an 1824 order might be used to search a closet, or it might be used to image someone’s hard drive. Most often, 1805 and 1824 get combined, but not always (the FISC released a breakdown for these last year).

Of course (as the Gartenlaub case will show), if you image someone’s hard drive, you’re going to get data from well before the time they’ve been under a FISA order, quite possibly even from before you’ve owned your computer.

In Keith Gartenlaub’s case, a physical search order was used to conduct a black bag search of his home, during which the FBI imaged and subsequently searched the saved hard drives from the last three computers Gartenlaub had used, going back a decade, which is how FBI found child porn that hadn’t been accessed in a decade.

And, as McCarthy notes (though without explaining the electronic/physical distinction), in the case of Carter Page, depending on what minimization procedures the FISC imposed, a physical search order approved on October 21, 2016 might allow FBI to search his devices for communications he had between March and September 2016, when he was a member of the Trump campaign.

What Democrats fail to mention is that the surveillance enabled the FBI to intercept not only his forward-going communications but also any stored emails and texts he might have had. Clearly, they were hoping to find a motherlode of campaign communications. Remember, Page was merely the vehicle for surveillance; the objective was to probe Trump ties to Russia.

I’ve explained that the near-certainty that NSA obtained a 705(b) order on Page for when he traveled to Moscow, London, and the Emirates in December and January would make such backwards looking surveillance even more likely.

I’m not sure that amounts to using Page as a vehicle to surveil the Trump campaign. Depending on how you count it, FISC modified somewhere between 112 and 310 applications in 2016, easily more than they ever had before (my guess is the big spike in numbers has to do with their consideration of the Riley SCOTUS precedent as they approve more orders accessing iPhones). Modifications are how minimization procedures show up in FISA counts, and imposing limits on what the government might access from Page’s devices is the kind of thing I’d expect to see out of the FISC.

Still, McCarthy doesn’t know that FBI used Page as a vehicle; the FBI could easily argue they were trying to protect Trump from the suspected spy the campaign’s non-existent vetting had invited into its midst. And he couldn’t know whether targeting Page allowed FBI to access campaign-related communications without knowing what kind of minimization procedures were imposed, if any.

A real oversight committee would make answering such a question a priority, because it’s the kind of question that goes to the core of the impact of the Page order on Trump’s campaign, but also because the question of how FISC orders permit FBI to access decades of information is a fairly important legal issue, not least in the Ninth Circuit in the Gartenlaub case.

Alas, HPSCI is not that real oversight committee, and so no one appears to be asking that question.