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The Minh Quang Pham Precedent to the Julian Assange Extradition

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WikiLeaks supporters say that extradition of Julian Assange to the United States threatens journalism. That is true.

They also say that his extradition would be unprecedented. I believe that’s true too, with respect to the Espionage Act.

But it’s not entirely without precedent. I believe the case of Minh Quang Pham, who was extradited to the US in 2015 for activities related to AQAP — the most substantive of which involve providing his graphic design expertise for two releases of AQAP’s magazine, Inspire — provides a precedent that might crystalize some of the legal issues at play.

The Minh Quang Pham case

Minh Quang Pham was born in 1983 in Vietnam. He and his parents emigrated to the UK in 1989 and got asylum. In 1995, he got UK citizenship. He partied a lot, at a young age, until his conversion to Islam in 2004, after which he was drawn to further Islamic study and ultimately to Anwar al-Awlaki’s propaganda. Pham was married in 2010 but then, at the end of that year, traveled to Yemen. After some delays, he connected with AQAP and swore bayat in early 2011. While he claimed not to engage in serious training, testimony from high level AQAP/al-Shabaab operative Ahmed Warsame, who — after a two month interrogation by non-law enforcement personnel on a ship — got witness protection for himself and his family in exchange for cooperation, described seeing Pham holding a gun, forming one basis for his firearms and terrorist training charges (though the government also relied on a photo taken with Pham’s own camera).

On my arrival, Amin had a Kalashnikov with him and a pouch of ammunition. I am not certain if he had purchased the gun himself but he did say he had been trained by Abu Anais TAIS on how to use it, I can say from my knowledge of firearms that this weapon was capable of automatic and single fire.

Warsame’s role as informant not only raised questions about the proportionality of US treatment (he was a leader of al-Shabaab, and yet may get witness protection), but also whether his 2-month floating interrogation met European human rights standards for interrogation.

Pham reportedly sucked at anything military, and by all descriptions, the bulk of what Pham did in Yemen involved helping Samir Khan produce Inspire. After some time and a falling out with Khan — and after telling Anwar al-Awlaki he would accept a mission to bomb Heathrow — he returned to the UK. He was interrogated in Bahrain and at the airport on return, and again on arrival back home, then lived in London for six months before his arrest. At first, then-Home Secretary Theresa May tried to strip him of his UK citizenship in a secret proceeding so he could be deported (and possibly drone killed like other UK immigrants), but since — as a refugee — he no longer had Vietnamese citizenship, her first attempt failed.

The moment it became clear the British effort to strip him of citizenship would fail, the US indicted Pham in SDNY on Material Support (covering the graphic design work), training with a foreign terrorist organization, and carrying a firearm. Even before he ultimately did get stripped of his citizenship, he was flown to the US, in February 2015. The FBI questioned him, with no lawyer, during four days of interviews that were not recorded (in spite of a recently instituted FBI requirement that all custodial interviews be recorded). On day four, he admitted that Anwar al-Awlaki had ordered him to conduct an attack on Heathrow (which made the 302), but claimed he had made it clear he only did so as an excuse to be able to leave and return to the UK (a claim that didn’t make the 302; here’s Pham’s own statement which claims he didn’t want to carry out an attack). While Pham willingly pled guilty to the training and arms charges, at sentencing, the government and defense disputed whether Pham really planned to conduct a terrorist attack in the UK, or whether he had — as he claimed — renounced AQAP and resumed normal life with his wife. He failed to convince the judge and got a 40 year sentence.

The question of whether Pham really did plan to attack Heathrow may all be aired publicly given that — after Pham tried to get a recent SCOTUS case on weapon possession enhancements applied to his case — the government has stated that it wants to try Pham on the original charges along with one for the terrorist attack they claim Pham planned based on subsequently collected evidence.

The parallels between the Assange and Pham cases

Let me be clear: I’m not saying that Assange is a terrorist (though if the US government tries him, they will write at length describing about the damage he did, and it’ll amount to more than Pham did). I’m arguing, however, that the US has already gotten extradition of someone who, at the time of his extradition, claimed to have injured the US primarily through his media skills (and claimed to have subsequently recanted his commitment to AQAP).

Consider the similarities:

  • Both legal accusations involve suspect informants (Ahmad Warsame in Pham’s case, and Siggi and Sabu in Assange’s)
  • Both Pham and Assange were charged for speech — publishing Inspire and publishing the names of US and Coalition informants — that is more explicitly prohibited in the UK than the US
  • Both got charged with a substantive crime — terrorism training and possession of a gun in the case of Pham, and hacking in the case of Assange — in addition to speech-based crimes, charges that would (and did, in Pham’s case) greatly enhance any sentence on the speech-related charges
  • Pham got sentenced and Assange faces a sentence and imprisonment in SuperMax in the US that is far more draconian than a sentence for the same crimes would be in the UK, which is probably a big part of the shared Anglo-American interest in extraditing them from the UK
  • Whatever you think about the irregularity and undue secrecy of the Assange extradition, Pham’s extradition was far worse, particularly considering the way Theresa May was treating his UK citizenship

Unlike the Pham charges — all premised on Pham’s willing ties to a Foreign Terrorist Organization, AQAP — the US government has not included allegations that it believes Julian Assange conspired with Russia, though prosecutors involved in his case trying unsuccessfully to coerce Jeremy Hammond’s testimony reportedly told Hammond they believe him to be a Russian spy, and multiple other reports describe that the government changed its understanding of WikiLeaks as it investigated the 2016 election interference (and, probably, the Vault 7 release). Even if it’s true and even if they plan to air the basis for their belief, that’s a claimed intelligence tie, not a terrorism one.

This distinction is important. Holder v. Humanitarian Law clearly criminalizes First Amendment protected activity if done in service of a designated Foreign Terrorist Organization, so Pham’s graphic design by itself made him fair game for charges under US precedent.

The government may be moving to make a similar exception for foreign intelligence assets. As the Congressional Research Service notes, if the government believes Assange to be a Foreign Agent of Russia, it may mean the Attorney General (Jeff Sessions for the original charge, and Bill Barr for all the indictments) deemed guidelines prohibiting the arrest of members of the media not to apply.

The news media policy also provides that it does not apply when there are reasonable grounds to believe that a person is a foreign power, agent of a foreign power, or is aiding, abetting, or conspiring in illegal activities with a foreign power or its agent. The U.S. Intelligence Community’s assessment that Russian state-controlled actors coordinated with Wikileaks in 2016 may have implicated this exclusion and other portions of the news media policy, although that conduct occurred years after the events for which Assange was indicted. The fact that Ecuador conferred diplomatic status on Assange, and that this diplomatic status was in place at the time DOJ filed its criminal complaint, may also have been relevant. Finally, even if the Attorney General concluded that the news media policy applied to Assange, the Attorney General may have decided that intervening events since the end of the Obama Administration shifted the balance of interests to favor prosecution. Whether the Attorney General or DOJ will publicly describe the impact of the news media policy is unclear.

There’s a filing from the prosecutor in the case, Gordon Kromberg, that seems to address the First Amendment in more aggressive terms than Mike Pompeo’s previous statement on the topic.But it may rely, as the terrorism precedent does, on a national security exception (one even more dangerous given the absence of any State Department FTO list, but that hardly makes a difference for a foreigner like Pham).

Ultimately, though, the Assange extradition, like the Pham prosecution, is an instance where the UK is willing to let the US serve as its willing life imprisoner to take immigrants to the UK off its hands. Assange’s extradition builds off past practice, and Pham’s case is a directly relevant precedent.

The human rights case for Julian Assange comes at an awkward time

While human rights lawyers fought hard, at times under a strict gag, on Pham’s immigration case, Assange’s extradition has focused more public attention to UK’s willingness to serve up people to America’s draconian judicial system.

Last Thursday, Paul Arnell wrote a thoughtful piece about the challenge Assange will face to beat this extradition request, concluding that Assange’s extradition might (or might have, in different times) demonstrate that UK extradition law has traded subverted cooperation to a defendant’s protection too far.

We need to reappraise the balance between the conflicting functions of UK extradition law.

Among the UK’s most powerful weapons are its adherence to the rule of law, democracy and human rights. Assange’s extradition arguably challenges those fundamental principles. His case could well add to the evidence that the co-operative versus protective pendulum has swung too far.

He describes how legal challenges probably won’t work, but an appeal to human rights might.

British extradition law presumptively favours rendition. Extradition treaties are concluded to address transnational criminality. They provide that transfer will occur unless certain requirements are met. The co-operative purpose of extradition more often than not trumps the protection of the requested person.

The protective purpose of extradition is served by grounds that bar a request if they are satisfied. Those particularly applicable in Assange’s case are double criminality, human rights and oppression.

There are several offenses within the Official Secrets Acts 1911/1989 and the Computer Misuse Act 1990 that seemingly correspond to those in the US request. However, human rights arguments offer Assange hope.

Three are relevant: to be free from inhuman and degrading punishment, fair trial rights and freedom of expression. Previous decisions have held that life-terms in supermaximum-security prisons do not contravene the “punishment” provision, while the right to freedom of expression as a bar to extradition is untested.

Assange’s best prospect is possibly the oppression bar. Under it, a request can be refused on grounds of mental or physical health and the passage of time. To be satisfied, however, grievous ill health or an extraordinary delay are required.

It’s a good point, and maybe should have been raised after some of the terrorism extraditions, like Pham’s. But it may be outdated.

As I noted, Arnell’s column, titled, “Assange’s extradition would undermine the rule of law,” came out on Thursday. Throughout the same week that he made those very thoughtful points, of course, the UK publicly disavowed the rule of law generally and international law specifically in Boris Johnson’s latest effort to find a way to implement Brexit with no limits on how the UK deals with Northern Ireland.

The highlight – something so extraordinary and constitutionally spectacular that its implications are still sinking in – was a cabinet minister telling the House of Commons that the government of the United Kingdom was deliberately intending to break the law.

This was not a slip of the tongue.

Nor was it a rattle of a sabre, some insincere appeal to some political or media constituency.

No: law-breaking was now a considered government policy.

[snip]

[T]he government published a Bill which explicitly provides for a power for ministers to make regulations that would breach international and domestic law.

[snip]

Draft legislation also does not appear from nowhere, and a published Bill is itself the result of a detailed and lengthy internal process, before it is ever presented to Parliament.

This proposal has been a long time in the making.

We all only got to know about it this week.

[snip]

No other country will take the United Kingdom seriously in any international agreements again.

No other country will care if the United Kingdom ever avers that international laws are breached.

One of the new disclosures in a bunch of Roger Stone warrants released earlier this year is that, in one of the first Dms between the persona Guccifer 2.0, the WikiLeaks Twitter account explained, “we’ve been busy celebrating Brexit.” That same Brexit makes any bid for a human rights argument agains extradition outdated.

Roger Stone’s Call for Donald Trump to Steal the Election Simply Continues His Efforts from 2016

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As Media Matters reported the other day, on an InfoWars appearance the other day, the President’s rat-fucker, Roger Stone, called for Donald Trump to seize ballots in Democratic parts of Nevada claiming voter fraud, send federal forces to disrupt the election, and invoke the Insurrection act to start arresting his opponents.

During his September 10 appearance on The Alex Jones Show, Stone declared that the only legitimate outcome to the 2020 election would be a Trump victory. He made this assertion on the basis of his entirely unfounded claim that early voting has been marred by widespread voter fraud.

Stone argued that “the ballots in Nevada on election night should be seized by federal marshalls and taken from the state” because “they are completely corrupted” and falsely said that “we can prove voter fraud in the absentees right now.” He specifically called for Trump to have absentee ballots seized in Clark County, Nevada, an area that leans Democratic. Stone went on to claim that “the votes from Nevada should not be counted; they are already flooded with illegals” and baselessly suggested that former Sen. Harry Reid (D-NV) should be arrested and that Trump should consider nationalizing Nevada’s state police force.

Beyond Nevada, Stone recommended that Trump consider several actions to retain his power. Stone recommended that Trump appoint former Rep. Bob Barr (R-GA) as a special counsel “with the specific task of forming an Election Day operation using the FBI, federal marshals, and Republican state officials across the country to be prepared to file legal objections and if necessary to physically stand in the way of criminal activity.”

Stone also urged Trump to consider declaring “martial law” or invoking the Insurrection Act and then using his powers to arrest Facebook CEO Mark Zuckerberg, Apple CEO Tim Cook, “the Clintons” and “anybody else who can be proven to be involved in illegal activity.”

While MMFA notes that Stone was instrumental in setting up the Brooks Brothers riot in 2000, it doesn’t note how Stone’s calls simply continue his efforts from 2016.

Roger Stone spent significant time in 2016 — particularly in the first half of August, the same period when he appears to have gotten advance knowledge of WikiLeaks’ upcoming leaks — predicting the election would be rigged against Donald Trump.

Closer to the election, Stone’s efforts to use “exit pollers” (which, this year, he wants to federalize) to suppress minority voters mirrored efforts made by Guccifer 2.0 (and, we’ve since learned, Maria Butina and Sergei Kislyak).

Stone’s voter suppression effort is not surprising. It’s the kind of thing the rat-fucker has been doing his entire life.

Except it’s of particular interest in 2016 because of the specific form it took. That’s because two aspects of Stone’s voter suppression efforts paralleled Russian efforts. For example, even as Stone was recruiting thousands of “exit pollers” to intimidate people of color, Guccifer 2.0 was promising to register as an election observer, in part because of the “holes and vulnerabilities” in the software of the machines.

INFO FROM INSIDE THE FEC: THE DEMOCRATS MAY RIG THE ELECTIONS

I’d like to warn you that the Democrats may rig the elections on November 8. This may be possible because of the software installed in the FEC networks by the large IT companies.

As I’ve already said, their software is of poor quality, with many holes and vulnerabilities.

I have registered in the FEC electronic system as an independent election observer; so I will monitor that the elections are held honestly.

I also call on other hackers to join me, monitor the elections from inside and inform the U.S. society about the facts of electoral fraud.

More interesting still, the GRU indictment makes it clear that GRU’s information operation hackers were probing county electoral websites in swing states as late as October 28.

In or around October 2016, KOVALEV and his co-conspirators further targeted state and county offices responsible for administering the 2016 U.S. elections. For example, on or about October 28, 2016, KOVALEV and his co-conspirators visited the websites of certain counties in Georgia, Iowa, and Florida to identify vulnerabilities.

Whether or not GRU ever intended to alter the vote, Russia’s propagandists were providing the digital “proof” that Republicans might point to to sustain their claims that Democrats had rigged the election.

That is, it’s not just that Roger Stone did what Roger Stone always does, cheat, in really cynical ways.

It’s also that Stone’s efforts closely paralleled those of Russian intelligence operatives, as they worked hard to get Trump elected.

And that curious parallel raises the stakes for Stone on this election.

That’s because, as of April, there were court filings targeting Roger Stone that invoked conspiracy and Foreign Agent charges that remained substantially redacted, presumably because the investigation was ongoing. The most recent BuzzFeed FOIA release (which leaves unredacted or redacts under privacy claims materials that in past releases were redacted for ongoing investigations) seems to reflect that any ongoing investigation has been finished or killed by Billy Barr. That’s not surprising, given that Barr’s intervention in Stone’s sentencing led the four prosecutors who had been working the case to resign. But it also means that if Trump is replaced by someone unwilling to save him from prison time, lapsed investigations (with statutes of limitation that extend at least until 2021) might become active again.

Roger Stone has already shown a willingness to sell out this country to get his friend Donald Trump elected. And since 2016, he has grown closer to sanctioned white supremacist groups sowing violence. Now, his freedom likely depends on finding a way to help Trump eke out another win. And Roger the rat-fucker has been training to thwart democracy his entire adult life.

Nora Dannehy Just Gave Emmet Sullivan the Evidence of Extreme Abuse to Sentence Mike Flynn

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Though the full DC Circuit sent the Mike Flynn case back for Judge Emmet Sullivan to rule on DOJ’s motion to dismiss, at least some of the judges on the panel seemed to believe only something extraordinary — like the judge witnessing bribery in his courtroom — would merit refusing to grant the motion to dismiss.

Nora Dannehy, in resigning from the Durham investigation Thursday night, just gave Judge Sullivan that extraordinary reason.

The Hartford Courant story breaking the news provides a one detail explaining why.

First, perhaps to explain the non-political aspect of why Dannehy quit, the report describes that she was told the assignment would take six months to a year when she first came back in March 2019.

Dannehy was told to expect an assignment of from six months to a year when she agreed to join Durham’s team in Washington, colleagues said. The work has taken far longer than expected, in part because of complications caused by the corona virus pandemic. In the meantime, team members – some of whom are current or former federal investigators or prosecutors with homes in Connecticut – have been working long hours in Washington under pressure to produce results, associates said.

That would have put whatever pre-determined conclusion Billy Barr expected between September 2019 and March 2020. Barr presumed he’d get that outcome, then, by the time around February 1 when he appointed Jeffrey Jensen — to review the Flynn prosecution and come up with some excuse to dismiss it.

When Catherine Herridge interviewed Barr in the wake of the motion to dismiss, Barr specifically said that he appointed Jensen when he did even though John Durham was investigating the very same things. He had to appoint Jensen, Barr explained, because of some filings in the case meant “we had to sorta move more quickly on it.”

President Trump recently tweeted about the Flynn case. He said, “What happened to General Flynn should never be allowed to happen to a citizen of the United States again.” Were you influenced in any way by the president or his tweets?

No, not at all. And, you know, I made clear during my confirmation hearing that I was gonna look into what happened in 2016 and ’17. I made that crystal clear. I was very concerned about what happened. I was gonna get to the bottom of it. And that included the treatment of General Flynn.

And that is part of John Durham, U.S. Attorney John Durham’s portfolio. The reason we had to take this action now and why U.S. Attorney Jeff Jensen came in was because it was prompted by the motions that were filed in that case. And so we had to sorta move more quickly on it. But John Durham is still looking at all of this.

This is one particular episode, but we view it as part of a number of related acts. And we’re looking at the whole pattern of conduct.

Jensen, who was a firearms prosecutor, with no experience in counterintelligence, did truly shoddy work. At one point, he handed over some notes from Peter Strzok, claiming not to know they had to have been written on January 5, which caused the usual frothers to invent a new conspiracy theory out of them. Either he knew the overcall so poorly not to know the context, or he was just feeding the trolls. You decide.

He also made his decision without waiting to learn from Bill Priestap that the purpose of the Mike Flynn interview is precisely what every single piece of evidence said it was, to see whether Flynn would tell the truth about his calls with Sergei Kislyak. Instead, the decision came just before Covington and Burling would have had an opportunity to describe all the times Flynn lied to his lawyers in the process of submitting a FARA filing that still hid that he knew he had been working for Turkey.

In the second hearing before the DC Circuit, Jeff Wall revealed that the reason a hearing into DOJ’s reason for the motion to dismiss would do irreparable harm was because Billy Barr had a secret reason for dismissing the case, one pertaining to “non-public information from other investigations.”

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

[snip]

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

[snip]

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

[snip]

If all we had to do was show up and stand on our motion, no, we’ve already said that to the District Court.

The revised explanation prosecutor Jocelyn Ballantine offered for the motion to dismiss says that key witnesses, including Strzok, have been discredited (though as John Gleeson noted in his reply brief, her filing also relied on Strzok’s expertise).

All of which provides a good deal of evidence that Barr’s plan was to use Durham’s results to say that Mike Flynn shouldn’t be prosecuted (not even for selling out the country with Turkey). When those results didn’t come in on time, Barr told Jensen to go dig up evidence that had already been shared and reviewed by DOJ IG and the Durham inquiry, claim it was new (when much of it wasn’t even new to Judge Sullivan), and based on that, flip-flopped off of DOJ’s previous support for prison time.

Yesterday, Dannehy made it clear that the results of the Durham inquiry have also been pre-determined. (Though I half wonder whether the Durham team reviewed Peter Strzok’s book, found ready explanations to questions that neither HJC/OGR nor SSCI bothered to ask about the investigation — most likely about how the team chose four targets — and realized they were chasing hoaxes invented by Fox News.)

There’s is increasing evidence that Billy Barr moved to dismiss Flynn’s prosecution based of the results he is demanding Durham produce.

Barr may still get Durham to produce the results he has demanded. But that may not come before Judge Sullivan has an opportunity to ask about it.

Judge Sullivan Amicus John Gleeson Lays Out How DOJ Is Arguing Against DOJ, then Invokes Barr’s Other Interference

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When Judge Emmet Sullivan holds a hearing on DOJ’s motion to dismiss the Mike Flynn prosecution later this month, DOJ will likely refuse to answer any questions about why just Timothy Shea, Bill Barr’s lifelong flunky, signed the original motion to dismiss.

But even without raising that issue, retired Judge John Gleeson — acting as Sullivan’s amicus to oppose the motion — has amplified Shea’s role in his reply brief, submitted today.

He did so by noting that Shea’s argument is fundamentally incompatible with things DOJ claimed before Barr intervened (in filings arguing against Flynn’s Brady claims) and with things DOJ has claimed since (in a response brief signed by AUSA Jocelyn Ballantine).

Effectively, then, Gleeson has laid out that even DOJ believes DOJ lied in their motion to dismiss.

He does so, first of all, with materiality. Gleeson lays out that the government didn’t bother to defend the radical claims about materiality made in the Shea motion.

Although the Government attempts to respond to other arguments in my brief, it offers no response here. It does not claim I have misapprehended or misapplied the law. It never explains why one legal rule—the one set forth in its motion—applies to Flynn, while a different legal rule applies to everyone else. It never explains why its own lawyers erred so grievously in stating the law. It never explains why Flynn’s statements, in this setting, were not even capable of affecting the FBI’s general function. The Government’s silence on these crucial points is, by itself, sufficient to establish that its claims about materiality are pretextual.

Then, Gleeson argues that the government not only got the standard wrong, but misstated the evidence. To support it, he did what I’ve been clamoring for for months — he pointed to the government’s own claims about the materiality of Flynn’s lies (though he relies on a different and weaker filing than the government’s most aggressive statement on materiality, which had to he delayed twice to get senior DOJ review), noting that not that long ago the government argued aggressively that Flynn’s lies were material.

I have explained that the evidence demonstrating materiality here is so strong that the Government could satisfy an even tougher standard than the law requires—specifically, by demonstrating that Flynn’s statements had an actual effect on a specific FBI investigation. See ECF No. 225 at 41–42, 48–49. The Court need not take my word alone for this point. It can take the Government’s own word, as set forth in briefs submitted (unlike the Rule 48(a) motion) by the prosecutors who actually investigated this case, explaining that Flynn’s lies in fact affected the FBI’s investigation into contacts between the Trump campaign and the Russian government (a.k.a. “Crossfire Hurricane”). See ECF No. 132 at 10–11 (stating that Flynn’s “false statements to the FBI . . . were absolutely material”).

He also shows that the response brief — the one signed by Ballentine — offers no response on materiality itself but instead, “kick[s] up administrative dust.”

[T]he Government now abandons any discussion of the supposedly “critical”—but actually irrelevant—“predication threshold” that formed the backbone of its original motion. See ECF No. 198 at 16; see also id. at 2–5, 13–18. Instead, the Government refers vaguely to an irrelevant internal draft closing memorandum, “disagreement” about protocol, and other supposed “procedural irregularities,” ECF No. 227 at 2, 26–27, none of which is either particularly irregular or has any legal significance in proving materiality, see ECF No. 225 at 42–44. The Government seeks to conceal its retreat by kicking up administrative dust, but the bottom line is that it no longer stands by its own motion’s implausible reasoning.

Significantly, he mocks what is, in Billy Barr’s little mind, the real reason Flynn’s case should be dismissed: that many of the people who prosecuted Flynn have since been hounded out of government and are suing. Gleeson points out not just that two of them (Andrew McCabe and Lisa Page) are not witnesses to Flynn’s lies, but that in other places the government celebrates the experience of Peter Strzok and Joe Pientka (and had disclosed Strzok’s damning texts before Flynn pled guilty both times).

[T]he Government trots out a new explanation for its materiality rationale. The Government previously claimed to believe that the available evidence, taken at face value, showed Flynn’s statements to be immaterial. But it now says it has a different concern: that the witnesses it would rely upon to introduce the evidence might lack credibility with a jury. ECF No. 227 at 27–28. As this Court well knows, shifting explanations are classic red flags of pretext. See, e.g., Foster, 136 S. Ct. at 1751; Geleta v. Gray, 645 F.3d 408, 413 (D.C. Cir. 2011).

In any event, this claim makes no sense. The Government asserts without explanation that it “would need to prove its case” by calling as witnesses individuals from the FBI whose credibility could be impeached. ECF No. 227 at 27. But two of these “witnesses” were not present for Flynn’s false statements, so it is entirely unclear why their testimony would be required or even permitted (under evidentiary rules) in the Government’s case-in-chief. And more generally the Government’s professed credibility concerns are not plausible. They center on professed evidence of political bias by an interviewing agent that both the Government and Flynn have known about from the start of the case, see ECF No. 122 at 8–9; ECF No. 144 at 25– 34 (this Court discussing, at length, the history of the referenced text messages and why they do not cast doubt on Flynn’s guilty plea), and two pages after assailing the agents’ credibility, the Government does a back-flip to proclaim the very same agents “highly experienced investigators” whose assessment of the interview should be credited, see ECF No. 227 at 30. As I previously explained—without response from the Government—“[n]o competent lawyer thinks this way.” ECF No. 225 at 55.

To defeat the government’s claims that it would have a hard time proving Flynn’s lies were false, Gleeson points out a key disagreement Flynn has with the government. The government (in the form of prosecutor Ballantine, but others signed the brief too) maintains prosecutors did not commit any abuses.

[T]he Government affirmatively rejects Flynn’s own principal account of why his prior admissions of falsity should not be credited: namely, that prosecutors had threatened him with charges against his son. Compare ECF No. 160-23 at 8 ¶ 34 (Flynn Declaration describing “intense pressure,” including “a threat to indict my son Michael”), and id. at 11 ¶ 46 (“I allowed myself to succumb to the threats from the government to save my family . . . .”), with ECF No. 227 at 28 n.1 (“[T]he [G]overnment’s motion is not based on defendant Flynn’s broad allegations of prosecutorial misconduct. Flynn’s allegations are unfounded . . .”).

Given that Flynn repeatedly admitted to lying—and given that the Government is unwilling to accept Flynn’s claims about why those admissions were untrue—the Government struggles to offer a coherent account of why it doubts its ability to prove falsity.

Even Billy Barr, in sworn testimony before the House Judiciary Committee, said there were no Brady violations here (though he lied, under oath, about whether files had been withheld from Judge Sullivan).

Having shown how DOJ disagreed with itself on materiality and falsity, Gleeson then notes how DOJ invented a completely new reason — interests of justice — to dismiss the case.

The Government’s Rule 48(a) motion stated that “continued prosecution of Mr. Flynn would not serve the interests of justice.” ECF No. 198 at 12. It then elaborated on the reason: “the Government does not have a substantial federal interest in penalizing a defendant for a crime that it is not satisfied occurred and that it does not believe it can prove beyond a reasonable doubt.” Id. The Government thus asserted that the “interests of justice” would not be served by pursuing a case in which the Government doubts it could prove materiality or falsity. See id. at 12–20. No free-standing “interest of justice” policy reason is apparent in the Government’s motion.

But the Government now insists otherwise, asserting that it has always advanced a third “separate” and “alternative” reason for dismissal wholly unrelated to the difficulty of proving the elements of its case. ECF No. 227 at 23, 25–26. While this conclusion would come as a surprise to any careful reader of the Government’s motion, it would not surprise anyone familiar with doctrines designed to uncover pretext. See Foster, 136 S. Ct. at 1751 (where a party’s “principal reasons” have “shifted over time,” it can be inferred “that those reasons may be pretextual”).

And what exactly is the Government’s non-merits reason for dismissal? The answer is unclear, since the Government never quite explains its newly minted rationale in the sole paragraph devoted to it. See ECF No. 227 at 25–26. It gestures vaguely at “enforcement priorities” and “policy assessments,” id. at 24, then rattles off a disjointed string of allegations regarding “circumstances surrounding the interview,” id. at 25. But these are just the same facts that are legally irrelevant to its materiality and falsity assertions. The Government does not explain what additional supposed significance it has suddenly “assess[ed]” those facts to have, or why Flynn’s conviction disserves the “interests of justice,” see id. at 23, given that his guilt is both conceded and readily provable. While the Government conveniently asserts that these “policy assessments” are “quintessentially unreviewable,” id. at 24, it never actually explains what the policy is, what judgment it made, or why the conduct of the FBI agents in question would warrant dismissal of this case given Flynn’s demonstrable and confessed guilt. See id. at 23–26.

Having shown that DOJ (in Ballantine’s reply) already showed that DOJ (in Shea’s motion to dismiss) was wrong, Gleeson notes that DOJ hasn’t even mentioned his arguments showing that there’s a more logical explanation for all this–that Trump demanded it.

As detailed in my opening brief, Flynn is a close ally of President Trump, who personally pressured the FBI director to “let this go” within weeks of Flynn’s crime, who has since repeatedly made clear his desire for Flynn to avoid criminal liability, see ECF No. 225 at 17, 56– 59, and who has expressed a desire to re-hire Flynn within his administration, see Max Cohen, Trump Says He Would Welcome Michael Flynn Back to His Administration, POLITICO (July 15, 2020, 11:08 AM), https://perma.cc/5EG4-CLTQ. Allowing dismissal for these “irregular” reasons would necessarily “implicate this Court” in denigrating “settled, foundational norms of prosecutorial independence.” ECF No. 225 at 59.

The Government does not disagree with any of this—presumably because it cannot. Indeed, the Government nowhere even mentions the President’s personal lobbying, let alone his virulent attacks on those previously involved in this prosecution. Based entirely on evidence already in the public view, the only coherent explanation for the Government’s exceedingly irregular motion—as well as its demonstrable pretexts—is that the Justice Department has yielded to a pressure campaign led by the President for his political associate. This Court need not “exhibit a naiveté from which ordinary citizens are free” by pretending otherwise. United States v. Stanchich, 550 F.2d 1294, 1300 (2d Cir. 1977). It should instead deny the Government’s request for leave under Rule 48(a) and proceed to sentencing.

Gleeson is exploiting DOJ’s failures to address his claims. But he’s probably right.

Gleeson expands the record to include solid evidence of prosecutorial abuse

Sullivan did not and will not order further discovery in this case. But Gleeson got three key pieces of additional information into his brief. He cited the SSCI Report describing why Flynn’s lies were material.

In its bipartisan report assessing Russia’s interference with the 2016 presidential election, the U.S. Senate Intelligence Committee similarly concluded that the “series of communications between Flynn and Kislyak” on sanctions was relevant to assessing “what Moscow sought to gain and the counterintelligence vulnerabilities associated with the Transition.” REPORT OF THE SELECT COMMITTEE ON INTELLIGENCE UNITED STATES SENATE ON RUSSIAN ACTIVE MEASURES CAMPAIGNS AND INTERFERENCE IN THE 2016 U.S. ELECTION, VOLUME 5: COUNTERINTELLIGENCE THREATS AND VULNERABILITIES, S. Doc. No. 116-XX, at 702 (1st Session 2020).

He pointed to Aaron Zelinsky’s testimony describing how Billy Barr personally intervened to sabotage the Roger Stone prosecution.

Most notably, there is now concrete evidence of another prosecutorial decision infected by “heavy pressure from the highest levels of the Department of Justice . . . based on political considerations.” See Oversight of the Department of Justice: Political Interference and Threats to Prosecutorial Independence: Hearing Before the H. Comm. on the Judiciary, 116th Cong. 2 (2020) (statement of Aaron S.J. Zelinsky, Assistant U.S. Att’y), https://perma.cc/48ZV-23EK. This prosecutorial decision concerned the Government’s sentencing recommendation for Roger Stone, another well-connected political ally of the President who committed serious crimes. There, as here, the President publicly assailed the Department of Justice for pursuing the prosecution. And there, as here, the Department of Justice succumbed to that corrupt pressure— though only after all four career prosecutors resigned from the case. As one of those career prosecutors later testified, senior officials at the Department of Justice exerted “significant pressure” to go easy on Stone, against the record of the case, customary prosecutorial practice, and departmental policy. Id. at 2. This occurred “because of [Stone’s] relationship to the President,” id., and “because the U.S. Attorney”—who also signed the Rule 48(a) motion in these proceedings—“was ‘afraid of the President,’” id. at 10.11

And he used that to invoke the case of Geoffrey Berman.

11 Perhaps those officials had reason to worry: the President recently fired a prominent and wellrespected U.S. Attorney who was investigating his associates. See Paul Le Blanc et al., White House Admits Trump Was Involved in Firing of Top US Attorney After Trump Claimed He Wasn’t, CNN (June 22, 2020), https://perma.cc/TPB5-ZXGQ.

Had he waited a few hours, he could have cited how John Durham’s deputy, Nora Dannehy, just resigned in part because of political pressure.

While Gleeson has not had the opportunity to develop a record about why this particular Barr intervention is thoroughly corrupt, he manages to show that Billy Barr here argues against Billy Barr, and in similar cases, did have a political purpose.

At the very least, he has succeeded in establishing a record that Billy Barr’s own DOJ disagrees with him.

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

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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.

Devout Catholic Bill Barr Stakes the Credibility of His Institution on Shielding an Accused Rapist

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Yesterday, Billy Barr had his DOJ intervene in E Jean Carroll’s defamation lawsuit against Donald Trump.

In a filing submitted under the name of Director of DOJ’s Torts Branch, James Touhey, Jr., DOJ claimed that when President Trump accused Carroll last year of making up the rape to sell books and help Democrats, accused other men of rape, and called Carroll unattractive, he was acting in his official capacity as President of the United States.

6. James G. Touhey, Jr., the Director of the Torts Branch within the Civil Division of the Department of Justice, certified that the defendant employee,President Trump, was acting within the scope of his office or employment at the time of the incident out of which the claim arose. The claim asserts defamation based on a written statement issued to the press and two statements the President made in interviews in June 2019 in which the President vehemently denied accusations made in Plaintiff’s then-forthcoming book. The President explained that these accusations were false and that the incident she alleged never happened. Acting pursuant to 28 C.F.R. § 15.4(a),the Attorney General’s delegate certified that President Trump was acting within the scope of his office as President of the United States when he publicly denied as false the allegations made by Plaintiff.

As with other corrupt interventions by Barr’s DOJ, no SDNY attorney signed the filing.

If the move to replace Donald Trump with the US government as defendant succeeds, the entire suit will be dismissed, because the US government cannot be sued for defamation.

The move comes one month after the judge in the case, Verna Saunders, ruled Trump could not delay a deposition and DNA test in the lawsuit.

As I contemplated Barr’s decision to claim that accusing a credible alleged rape victim was all part of Trump’s job as President, I thought briefly about what it says of Bill Barr’s faith, that he would make it official DOJ policy to condone attacks on claimed rape victims like this.

But then I remembered that Bill Barr is of the generation of Catholics where that is the job of the official bureaucracy, to throw all the institutional weight of the Church into protecting alleged rapists and suppressing credible accusations, even to the point of attacking the victims.

And so Bill Barr will further degrade an institution that’s supposed to guard the interests of the less powerful in society, and instead use the power of the institution to corruptly hide how depraved those leading the institution really are.

The Latest Stinky 702 Opinion Bodes Poorly for the Next One

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Last night, I Con the Record released last year’s 702 opinion, approved by current presiding FISA Judge James Boasberg. It’s stinky. It shows continued violations of querying procedures (which I’ll describe below), as well as on new troubling issue at NSA (which I hope to describe in a follow-up).

Worse still, the opinion, the timing, and recent Bill Barr actions suggest we’ll see an even stinkier opinion in maybe another year.

The opinion we’re getting on September 3, 2020, was released by FISC on December 6, 2019. Not only has it taken nine months to release this opinion, but ODNI sat on it in anticipation of and in the aftermath of the DOJ IG Report on Carter Page, which was publicly released December 9, 2019. That means that the delay in releasing this led to a disproportionate focus on events that happened three or four years ago, but not on events that have persisted under Billy Barr.

But the timing is important for several other reasons: the government has to be preparing its next reapproval package now (assuming the 2019 certificates are good until December 5, it would need to submit a new package by November 5). That’s significant for several reasons. First, as laid out by the timeline below, while the FBI waited for a FISCR review of an October 2018 Boasberg decision that its querying procedures didn’t comply with a new requirement passed by Congress, there were ongoing querying problems of the same type, including both the deliberate querying of 702 information to vet sources (and cops), but also at least one mass query that ended up finding seven leads out of 16,000 Americans. There was a significant delay in reporting some of these:

  • Querying violations found in June reported September 18, 2019
  • Querying violations found in July reported September 6, 2019
  • August querying violation involved 16,000 people reported November 25, 2019

In addition, there were several more reports on querying violations, one on September 17, and another on September 20.

That is, the reports on some of these were delayed until after FISCR ruled (on July 12), and for many of them, there was a delay until around the same time as the government submitted their new reauthorization packet on September 17, 2019 (which is the package that led to this December 6 opinion).

Then, after submitting the reauthorization package, starting on October 4, 2019, the FBI asked to be excused from two reporting requirements imposed in 2018.

In one case — requiring that FBI has retained 702 information in some archival systems — the FBI waited to comply with a change in reporting requirements made in October 2018 until it was prepping the 2019 certificates, and then asked for a weaker reporting requirement (and got it, prospectively).

It must be noted, however, that the government has unjustifiably disregarded the current reporting requirement. Instead of taking concrete steps to comply even partially with the Court’s directive (or timely seeking relief from it), it chose to wait while the FBI reportedly worked on guidance to instruct its personnel on how to handle unminimized Section 702 information on these archival systems. See Letter Regarding the FBI’s Steps to Implement an Aspect of the Court’s 2018 Section 702 Opinion and Order, Sept. 27, 2019, at 3. In fact, it has taken so long to prepare this guidance that, instead of using it to instruct personnel on the October 2018 reporting requirement, which the government reports was the original plan, the FBI now intends to address only the narrower reporting requirement incorporated into the FBI’s proposed minimization procedures. See Letter Regarding the FBI’s Steps taken by the FBI to implement an aspect of the Comt’s 2018 Section 702 Opinion and Order, Nov. 20, 2019, at 4.

It should be unnecessary to state that government officials are not free to decide for themselves whether or to what extent they should comply with Court orders. The government has not sought retrospective relief from the reporting requirement imposed by the Court on October 18, 2018. Although the AG and DNI have amended the prior Section 702 certifications to authorize the FBI to apply its proposed minimization procedures to information acquired under prior certifications, that authorization only becomes “effective on October 17, 2019, or on the date upon which [this Court] issues an order concerning [the] amendments pursuant to subsection 702(j)(3) of the Act, whichever is later.”[redacted] The Court’s approval of those amendments does not have any nunc pro tune effect, nor does it excuse the government from reporting instances of retention that it is already obligated to report. With respect to those instances of retention, the October 2018 reporting requirement remains in effect.

In another — far more important — case, the FBI asked for the reporting requirement (on when an Agent conducts a criminal search and finds 702 information) to be eliminated entirely, again, after the reauthorization package was completed. This reporting requirement was designed to test the FBI’s now provably false claim that agents would never find 702 information when conducting criminal searches. It goes to the heart of concerns about Fourth Amendment violations.

Boasberg relaxed, though did not eliminate, that reporting requirement.

The government has not reported such instances in timely fashion. Rather, they have been reported to the Court belatedly, usually after they were uncovered during oversight reviews. The government now seeks relief from this reporting requirement “because the requirements in Section 702(f)(2) are a sufficient mechanism for the Court to assess the risk that the results of a query designed to elicit evidence of crimes unrelated to foreign intelligence will be viewed or otherwise used in connection with an investigation that is unrelated to national security.” October 4, 2019, Request at 8. But it would be premature to regard the government’s implementation of Section 702(f)(2) as a sufficient source of information. As discussed above, the FBI has repeatedly accessed Section 702-acquired contents under circumstances requiring a FISC order under Section 702(£)(2), but has never applied for such an order.

Closer to the mark is the government’s contention that implementing both Section 702(f)(2) and the November 2015 reporting requirement could complicate training and systems design. See October 4, 2019, Request at 8-9. For example, Section 702(f)(2) looks to whether a query involves a U.S.-person query term, while the applicability of the November 2015 reporting requirement depends on whether U.S.-person information is retrieved. And Section 702(f)(2) is implicated only when contents are accessed, while the November 2015 reporting requirement · does not distinguish between contents and non-contents information.

The Court has decided to retain a reporting requirement separate from Section 702(f)(2) because the obligation to get a FISC order under that section is limited to queries conducted in the context of a predicated criminal investigation. The FBI conducts numerous queries of Section 702 information at earlier investigative stages. See October 18, 2018, Opinion at 75. Reports about queries at those stages remain relevant to the Court’s interest in receiving information about the extent to which U.S.-person privacy interests are implicated by queries that are not designed to find and extract foreign-intelligence information. The Court has concluded, however, that it is appropriate to modify the prior reporting requirement so that it will focus on the use of U.S.-person query terms, rather than on whether U.S.-person information is accessed as a result of a query, and will be triggered only when contents information is accessed. Such modifications should make it considerably simpler for the government to implement the requirement in combination with Section 702(f)(2), while still requiring reporting in situations where Fourth Amendment concerns are likely to be implicated. See October 18, 2018, Opinion at 93 (queries that use U.S.-person query terms and result in review of contents are “the subset of queries that are particularly likely to result in significant intrusion into U.S. persons’ privacy”).

Ultimately, Boasberg approved the certifications, effectively arguing that FBI just needed time to be trained on them.

The Court has previously assessed that requiring FBI personnel to document why a query involving a U.S.-person query term is reasonably likely to have returned foreign-intelligence information or evidence of crime before examining contents returned by the query should “help ensure that FBI personnel … have thought about the querying standard and articulated why they believe it has been met” and prompt them “to recall and apply the guidance and training they have received on the querying standard.” See id. at 93; see also In re DNI/AG Certifications at 41 (that requirement may “motivate FBI personnel to carefully consider … whether a query satisfies” the standard). The recently reported querying violations suggest that some FBI personnel still need such help. That is not altogether surprising. As discussed above, the FBI is really just sta11ing to implement that documentation requirement on a comprehensive basis. For that reason, the improper queries described above do not undermine the Court’s prior determination that, with that requirement, the FBI’s querying and minimization procedures meet statutory and Fourth Amendment requirements.

I suggested when the 2018 package was released last year, we’d start learning details of back door searches that had been implicit since 2007.

Nevertheless, 12 years after this system was first moved under FISA (notably, two key Trump players, White House Associate Counsel John Eisenberg and National Security Division AAG John Demers were involved in the original passage), we’re only now going to start getting real information about the impact on Americans, both in qualitative and quantitative terms. For the first time,

  • We will learn how many queries are done (the FISC opinion revealed that just one FBI system handles 3.1 million queries a year, though that covers both US and non US person queries)
  • We will learn that there are more hits on US persons than previously portrayed, which leads to those US persons to being investigated for national security or — worse — coerced to become national security informants
  • We will learn (even more than we already learned from the two reported queries that this pertained to vetting informants) the degree to which back door searches serve not to find people who are implicated in national security crimes, but instead, people who might be coerced to help the FBI find people who are involved in national security crimes
  • We will learn that the oversight has been inadequate
  • We will finally be able to measure disproportionate impact on Chinese-American, Arab, Iranian, South Asian, and Muslim communities
  • DOJ will be forced to give far more defendants 702 notice

The thing is, 11 months after the release of that opinion, we’re still not seeing results — in the form of declassified opinions — of what FBI’s querying really looks like, once they’re forced to actually track it. The entirely of this 2019 opinion still shows what Boasberg considers the pre-implementation period for this reporting regime.

And the FBI has been trying to weaken it for two years now!

There’s one more indication that we may see troubling details once we get the next 702 opinion in a year’s time, if we do get it.

Less than a week ago, Billy Barr issued a memo imposing a new national security auditing function on the FBI.

To enhance the FBI’s existing compliance efforts, the Director of the FBI is taking steps to build a more robust and exacting internal audit capability, including the creation of an office focused on auditing the FBI’s national security activities. To support that effort, I hereby authorize the Director of the FBI to commence the process of establishing, consistent with law and policy, the Office ofInternal Auditing (“OIA”). A separate office devoted to internal auditing and headed by a senior FBI official will ensure that ri gorous and robust auditing, which is an essential ingredient to an effective compliance regime, is canied out. The FBI shall work with the Justice Management Division to make the required reorganization notifications regarding this new office. Once established, OJA shall be led by an Assistant Director who shall have the same reporting chain as the Assistant Director for OIC and the Assistant Director for INSD. The Director of the FBI shall appoint the Assistant Directors for OIC, INSD, and OIA, with the approval of the Deputy Attorney General.

OIC, INSD, and OIA shall be responsible for carrying out the internal compliance functions of the FBI as assigned by the Director of the FBI, who shall ensure that each office does not duplicate responsibilities and is adequately staffed to perform its assigned functions. The Deputy Attorney General and the Assistant Attorney General for Administration shall coordinate with the Director to ensure that those functions are resourced and funded appropriately.

Even though Barr says the newly created OIA won’t overlap with the compliance and inspection functions at FBI, it’s not clear why not. Further, Barr’s memo does not explicitly say why FBI needed a new compliance review for national security cases rather than the existing legal reviews that had conducted such review.

Don’t get me wrong, done correctly, this could be a long-needed reform. It’s not clear it is being done correctly. It seems partly timed to the elections (with a report on implementation due just before then). And DOJ IG — which has, historically, found abundant problems with the functions enumerated here — will not review the efficacy of this until around May 2022.

The Department ofJustice Inspector General has agreed to assess the implementation of this memorandum (“initial assessment”) no sooner than 18 months after the establishment of OIA and to report such assessment, consistent with the Inspector General Act, to the Attorney General, Deputy Attorney General, Director of the FBI, and Assistant Attorney General for National Security. The Inspector General has furt her agreed to conduct a subsequent assessment no later than five years after the initial assessment, and periodically thereafter as determined by the Inspector General, and to report such assessments, consistent with the Inspector General Act, to the Attorney General, Deputy Attorney General, Director of the FBI, and Assistant Attorney General for National Security.

Within 60 days of the date of the Inspector General’s initial assessment, the Director of the FBI shall provide the Attorney General and Deputy Attorney General an assessment of the implementation of this memorandum, including an assessment of the effectiveness of the FBI’s compliance structure and whether compliance functions should be consolidated under an Executive Assistant Director.

Which is to say, this initiative, while it may be long overdue, feels like Barr trying to get ahead of something or somethings.

Billy Barr is an authoritarian. He doesn’t care about surveillance (indeed, he’s the grandfather of the dragnets that Edward Snowden revealed).

But something must have led him to take action to make it look like he cares.

Timeline

March 24-27, 2017: The querying of 70K facilities “associated with” persons who had access to the FBI’s facilities and systems. FBI General Counsel (then run by Jim Baker, who had had these fights in the past) warned against the query, but FBI did it anyway, though did not access the communications. This was likely either a leak or a counterintelligence investigation and appears to have been discovered in a review of existing Insider Threat queries.

December 1, 2017: FBI conducted queries on 6,800 social security numbers.

December 7-11, 2017, the same entity at FBI also queried 1,600 queries on certain identifiers, though claimed they didn’t mean to access raw data.

February 5 and 23, 2018: FBI did approximately 30 queries of potential sources.

February 21, 2018: FBI did 45 queries on people being vetted as sources.

March 27, 2018: Initial 2018 package submitted.

April 5, 2018: Extension order.

Before April 13, 2018: an unspecified FBI unit queried FISA acquired metadata using 57,000 identifiers of people who work in some place.

October 17, 2018: Order finding FBI querying procedures do not comply with FISA.

February 21, 2019: NSA submits notice of Upstream violations.

February 26, 2019: Date after which NSA fixes Upstream violations.

June 2019: Oversight review finds violations of querying rules, including to vet a source, a candidate to be a local cop, and to find information about a planned visit by foreign officials.

June 26, 2019: Notice that CIA assistance to NCTC does not comply with rules.

July 2019: Oversight review finds violations of querying rules, including of college students in a “Collegiate Academy” and individuals who visited an FBI office. 

July 12, 2019: FISCR opinion finding that FBI querying procedures do not comply with FISA.

August 2019: Query of 16,000 persons identifies seven leads. 

August 12, 2019: FBI submits new querying procedures.

August 23, 2019: NSA complains about post-tasking for some collections.

September 4, 2019: Approval of amended FBI querying procedures.

September 6, 2019: Report of July 2019 query violations.

September 13, 2019: Notice regarding 702 query response showing 100 characters of text surrounding search term.

September 17, 2019: Application submitted, including proposed improvements on targeting procedures.

September 17, 2019: Notice of at least four querying violations involving taking steps to access 702 products without getting a warrant.

September 18, 2019: Report on June 2019 query violations.

September 20, 2019: Reports of other FBI querying violations, including to vet sources, to search on complainants, and to vet potential cops.

September 26, 2019: 45-day report on fulfilling FBI query rules.

October 1, 2019: Review period extended to December 16, 2019 (because of NSA and NCTC compliance issues, not FBI ones).

October 3, 2019: FISC orders further information.

October 4, 2019: FBI requests relief from requirement to report 702 access in response to criminal search.

October 10, 2019: Notice of overly attenuated NSA queries, including content searches using 23 US person identifiers.

October 11, 2019: Notice on FBI violations tied to not opting out of including FISA in searches.

November 4, November 13, 2019: Government provides additional information.

November 8, 2019: 45-day report on fulfilling FBI query rules.

November 14, 2019: Notice on violations tied to not opting out of including FISA in searches.

November 20, 2019: Government tells FISC that they never tried to comply with reporting requirement imposed in October 2018, are instead training their new proposed compliance method.

November 25, 2019: Notice regarding August 2019 mass query.

mid-December 2019: Date FBI promised to impose new record-keeping on FBI’s queries.

January 2020: Date NSA promised to have purged improperly acquired communications.

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

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

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

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

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

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

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

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

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

KRISHNAMOORTHI: Currently?

MUELLER: Currently.

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

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

[snip]

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

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

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

KISLYAK: yeah.

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

KISLYAK: You’re absolutely right.

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

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

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

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

[snip]

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

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

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

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

[snip]

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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