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What Does the White House Know about Sam Clovis that Chuck Grassley Claims Not To?

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The other day I noted that Victoria Toensing’s press comments about her client, Sam Clovis’, appearance before the Mueller grand jury suggested there were discrepancies between his testimony and what George Papadopoulos has been telling the FBI for the last three months.

Nevertheless, after the disclosure that Clovis was the supervisor who told Papadopoulos to pursue a meeting with Russia as late as August 2016, Chuck Grassley still backed his fellow Iowan to serve as US Department of Agriculture’s Undersecretary for Research, Education and Economics. Grassley (who on Monday hid in flags to avoid questions about the Manafort indictment) told Iowa journalists that he had seen the context of the emails and he believed they showed no evidence that Clovis encouraged Papadopoulos to meet with Russian officials.

[I]n a conference call with Iowa reporters Wednesday, Grassley said he has reviewed emails provided by the Trump campaign that include a fuller account of Clovis’ interactions with Papadopoulos. According to those 80-some emails, Grassley said, Clovis does not appear to encourage any travel to meet with Russian officials.

“There’s an entirely different context than what was reported about Clovis and his relationship to this George P.,” Grassley told reporters.

The emails he reviewed cannot be released publicly, Grassley said, although some of them have been referenced in published newspaper accounts and are referred to in the court document from the Papadopoulos case.

When asked if he believes Clovis could face legal consequences over his role in the campaign, Grassley answered that it was “too early for me to say that.”

“But,” he went on, “reading these emails … that’s not an issue.”

Clovis has been scheduled to testify before Senate Agriculture Committee on Nov. 9 as part of his nomination as USDA undersecretary. That could be pushed back, Grassley said on Wednesday. In any case, Grassley said he will introduce Clovis when he comes before the committee.

Mind you, Grassley would have good reason to want an Iowan in a top USDA position, and might even relish the thought of having a non-scientist in charge of science there. So he may be biased.

In any case, the White House may now have a different understanding of matters.  CNN reports today that the White House may pull Clovis’ nomination entirely.

A White House source said the nomination of Sam Clovis is in danger and could be pulled soon. A source familiar with the White House’s thinking added that Clovis may have to withdraw, but it is not clear how that will happen, whether he will voluntarily pull out or be forced to do so.

[snip]
A Republican official close to Clovis said he remained loyal to Trump, adding that Clovis would almost certainly not fight the White House in backing away from his USDA nomination if asked.

“There’s no way he would fight this or cause trouble for the White House,” a Republican official and longtime associate of Clovis said.

Meanwhile, Clovis’ lawyer Toensing has gotten a whole lot less chatty about her client’s plight.

The White House did not comment Wednesday night, and messages to Clovis’ attorney were not returned.

Admittedly, it may be that the White House simply wants to avoid having to release the 80-some emails Grassley alluded to publicly, as Democrats would surely push to happen. Or it may be that there are details about Clovis’ actions — such as his description of cozying up to Russia as a key priority of the campaign — that the White House wants to avoid any questions about. Or, it may be that the White House simply doesn’t want to give Democrats any chances to focus attention on the substance of Papadopoulos’ plea.

Whatever it is, though, it does seem that Clovis’ immediate future seems to be less bright than Iowan Chuck Grassley claims it is.

Update: The AP reports that Clovis has withdrawn from consideration.

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In Defense of Trump’s Steele Dossier Tweet

I can’t believe what I’m about to do.

I’m going to defend this tweet from Donald Trump as reasonable.

Before I do, let me say two things.

First, I have zero doubt that the Russians attempted to influence the election. I think it likely Robert Mueller will eventually show evidence that senior people in Trump’s camp attempted to and may have coordinated with people working for Russia, and people more tangential to the campaign sought out Russians for help. I think if the full story of the Russian involvement in the election comes out, it will be worse than what people currently imagine.

I also think Trump opponents have made a really grave error in investing so much in the Steele dossier. That’s true because, from the start, there were some real provenance questions about it, as leaked. Those questions have only grown, as I’ll explain below. The dossier was always way behind ongoing reporting on the hack-and-leak, meaning it is utterly useless for one of the most important parts of last year’s tampering. The dossier provides Trump officials a really easy way to rebut claims of involvement, even when (such as with Michael Cohen) there is ample other evidence to suggest inappropriate ties with Russia. Most importantly, the dossier is not needed for the most common reason people cling to it, to provide a framework to understand Trump’s compromise by Russia. By late January, WaPo’s reporting did a far better job of that, with the advantage that it generally proceeded from events with more public demonstrable proof. And (again, given the abundance of other evidence) there’s no reason to believe the Mueller investigation depends on it.

But because Trump opponents have clung to the damn dossier for months, like a baby’s blanket, hoping for a pee tape, it allows Trump, Republicans, and Russians to engage in lawfare and other means to discredit the dossier as if discrediting the dossier will make the pile of other incriminating evidence disappear.

I believe the Trump opponents’ investment in the Steele dossier will ultimately lead to a bad own goal.

All that said, I think Trump’s tweet today, while as typically douchey as all his tweets, is somewhat defensible (and the fact that it is defensible should serve as a warning to those still clinging to the Steele dossier).

Workers of firm … take the 5th

Trump is referring to the fact that two Fusion employees refused to testify before the House Intelligence Committee under a subpoena issued unilaterally by Devin Nunes. There is significant confusion, spread in part by their attorney, as to why they would not testify. Beforehand, their attorney said the First Amendment permitted them to blow off the committee (which wouldn’t even be true for a journalist, much less an oppo research firm pretending for convenience to be a journalistic enterprise). Since it happened, several credible journalists have said Fusion’s lawyer said they pled the Fifth (which would work, but would also mean they felt they had criminal exposure).

So the point it at least contested.

My guess is they’re just stalling, with the knowledge that if Nunes has to find a way to enforce his subpoena, the rest of the committee will get to weigh in and will refuse to back his effort.

Discredited and Fake

It is true that anonymous sources say that the FBI has corroborated some things in the dossier (and Andy McCarthy makes an uncharacteristically worthwhile argument for what the tea leaves say). It is also true that Dianne Feinstein confirmed during the summer that we only have part (and given the numbering, probably a very small part) of the dossier. So we can’t be sure whether the bits FBI has corroborated are public at all.

There are things, as I’ve noted, that totally discredit parts of the dossier, such as the fact that it reported Russia hadn’t succeeded in hacking top targets almost a year after it was widely reported FSB already had (in general, the dossier is awful on the hack, as I lay out in this post; Steele’s speciality is in following the money and it shows).

Then there’s the fact that the unnecessary report on Alfa bank misspells their name: it’s a minor point but one those engaging in lawfare always point out.

The one thing that most people focus on — a Prague meeting between Cohen and the Russians — is not backed by the US passport he showed BuzzFeed.

A number of people have claimed that the dossier reported, 11 days after it occurred, the June 9 Trump Tower meeting. But as I lay out in this post, the dossier says the kompromat in question is older stuff based off wiretaps of Hillary, and it actually claims that Russia had not yet shared the intelligence in question, meaning the dossier did not confirm the June 9 meeting.

That doesn’t mean it’s discredited. But it doesn’t mean we know what parts of it have been corroborated, and some parts are not true (as we should expect from raw intelligence).

Who paid for it: Russia

The most problematic thing Trump said is that Russia may have paid for the dossier. It’s true we don’t know who paid for the dossier (indeed, that is the chief reason why Fusion doesn’t want to testify, to hide who did pay for it). Rumors say that a Jeb Bush supporter paid for it up until June 2016 (meaning, for a bunch of reports that aren’t public at all), and a Hillary supporter paid for it until November. Steele has claimed in court filings that the reports that came after that, including the December 13 report that has the most incendiary claims (including that Trump paid hackers involved in the operation), that he worked for free after November and that his sources — who normally would be paid — also just dumped the intelligence that happened to be the most inflammatory parts into his lap.

The Defendants continued to receive unsolicited intelligence on the matters covered by the pre-election memoranda after the US Presidential election and the conclusion of the assignment for Fusion.

After receiving some such intelligence [Steele] prepared the confidential December memorandum, … on his own initiative on or around 13 December 2016.

That last claim — that Steele worked for free — is pretty sketchy, especially when you consider that (given the numbering in the dossier and Feinstein’s confirmation we’ve got just part of the dossier) there were likely 31 reports filed between October 19 and December 13.

Regardless of who really paid for the work, the fact that Steele claims he (and his sources) were working for free, the fact that the Russians would have known about the dossier at least by October 31, when David Corn wrote about it, and possibly by mid-September, when Steele started briefing journalists on it, the fact that Aleksej Gubarev quickly sued, the fact that a suspected dossier source died in mysterious circumstances in December, and the fact that the last report tied everything up in a neat little bow, suggests the Russians may have been feeding Steele disinformation by that last report.

Does that mean the Russians paid Steele? Absolutely not. It’s an outrageous insinuation. Does that mean that any disinformation in the dossier was ultimately paid for by Russia and that it is not crazy to imagine the later reports included at least some disinformation? Yup.

Then there’s another detail that makes the Russian accusation at least reasonable: the fact that Rinat Ahkmetshin had a relationship with Fusion (to work on anti-Magnitsky stuff) at precisely the same time as Fusion was working on the Trump dossier. Not only does that fact make it more likely Russians eventually learned of the dossier and fed Steele disinformation, but it also means Fusion was getting paid by Russians at the same time as or not long before it was producing free Steele dossier work.

Who paid for it: FBI

People seem most offended by Trump’s claim that FBI may have paid for the dossier. The reporting on this point conflicts, but note that CNN has said that Steele got paid by the FBI for expenses.

CNN:

The FBI reimbursed some expenses of the former British intelligence operative who produced a dossier containing allegations of President Donald Trump’s ties to Russia, people familiar with the matter said.

WaPo:

The former British spy who authored a controversial dossier on behalf of Donald Trump’s political opponents alleging ties between Trump and Russia reached an agreement with the FBI a few weeks before the election for the bureau to pay him to continue his work, according to several people familiar with the arrangement.

The agreement to compensate former MI6 agent Christopher Steele came as U.S. intelligence agencies reached a consensus that the Russians had interfered in the presidential election by orchestrating hacks of Democratic Party email accounts.

[snip]

Ultimately, the FBI did not pay Steele. Communications between the bureau and the former spy were interrupted as Steele’s now-famous dossier became the subject of news stories, congressional inquiries and presidential denials, according to the people familiar with the arrangement, who spoke on the condition of anonymity because they were not authorized to discuss the matter.

NBC:

The FBI reached a deal in October to pay a former British spy who had compiled a dossier on Donald Trump’s alleged ties with Russia, an indication of how seriously the bureau was taking the allegations, according to a person familiar with the matter.

The deal for the former operative, Christopher Steele, to continue his work on behalf of the FBI fell apart when Steele pulled out, said the source, who has direct knowledge of the situation.

Given what Chuck Grassley has asked and said in response, my suspicion is the reality is that FBI paid Steele’s expenses for trips to explain sourcing and other details of the dossier to them, meaning their funds didn’t pay his sources or for his time, but did pay for him to meet with the FBI.

Who paid for it: Dems

This claim is a no-brainer. According to the public story, a Hillary supporter — who has always been presumed to be a Democrat though there’s no reason that has to be true (indeed, it is utterly conceivable that the same person paid for the work first in Jeb’s name and then in Hillary’s) — paid for all the reports we have, save the December 13 one.

(or all)?

Finally, people are especially offended that Trump, with his “or all,” insinuated that the FBI and Russians were colluding against Trump.

It’s certainly possible that’s what he intended. But the public record at least claims that three different entities paid for the dossier over time; that same record makes a reasonable claim that both the Dems and FBI paid some money to support the dossier.

All of which is to say the serial payment for the dossier does not require that “or all” to be a malicious insinuation of collusion (heh) between FBI and Russia.

I know this will be an unbelievably unpopular post. But the dossier simply isn’t as pristine as those clinging to it want it to be. Which is a good reason for Trump opponents to spend more time highlighting the great reporting of the WaPo or NYT, which often as not has been confirmed and is backed by public information.

Update: Made some tweaks in my argument that Trump opponents should stop clinging to the Steele dossier.

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Chuck Grassley Finally Shows Concern about Parallel Construction — Affecting Trump

As I’ve said repeatedly, I think Chuck Grassley’s concerns about the Steele dossier — and FBI’s refusal to answer questions about it — generally have merit. That continues with his latest letter to FBI.

Effectively, he’s worried that because Steele shared the dossier with MI6, the FBI might effectively be parallel constructing intelligence that ultimately came from Steele, and so from a oppo research dossier.

There is another concern about Mr. Steele’s and Fusion GPS’s work that the FBI needs to address.  Public reports indicate that the FBI received the dossier and has used it in the Russia investigation.  However, it appears that the FBI, the media, and various Congressional offices were not the only recipients of the dossier prior to its publication.  In court filings by Mr. Steele’s attorneys in London, he admitted that he had passed at least some contents of the dossier to at least one foreign government – the United Kingdom.[1]

Media reports have also claimed that foreign governments passed along information to the United States about purported contacts between Trump associates and Russians.  Given that Mr. Steele also distributed the dossier’s contents to at least one foreign government, it is possible that this political dossier’s collusion allegations, or related allegations originating via Mr. Steele, may have also been surreptitiously funneled into U.S. intelligence streams through foreign intelligence sharing.  If so, that foreign information would likely have ended up within the FBI’s investigation of allegations of collusion between Trump associates and Russia.  However, given that foreign intelligence agencies carefully guard their sources and methods, it may not have been clear to the FBI that the foreign reporting was actually based on the work of Mr. Steele and Fusion GPS.

If this in fact happened, it would be alarming.  Mr. Steele’s dossier allegations might appear to be “confirmed” by foreign intelligence, rather than just an echo of the same “research” that Fusion bought from Steele and that the FBI reportedly also attempted to buy from Steele.  It is even more alarming in light of what we are learning about the allegedly unregistered Russian foreign agents who Fusion GPS and Glenn Simpson were working with to undermine the Magnitsky Act and who met with Trump family and campaign officials last summer.

The Committee must understand what steps the FBI has taken to ensure that any foreign information it received and used in the Russia investigation, beyond the dossier itself, was not ultimately sourced to Mr. Steele, his associates such as Fusion GPS, or his sub-sources.

It’s a fair point — as mentioned, he’s effectively describing parallel construction, which the FBI uses all the time to hide the ultimate source for its evidence on defendants (though usually, that process involves obtaining subpoenas to hide what kind of foreign intelligence it relies on).

So I’m grateful the Chair of the Senate Judiciary Committee has finally decided to turn his focus on a process that is badly abused, to the detriment of due process in this country.

I just wish he expressed the same concern for less famous targets, rather than just the President.

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John Sipher’s Garbage Post Arguing the Steele Dossier Isn’t Garbage

I generally find former CIA officer John Sipher’s work rigorous and interesting, if not always persuasive. Which is why I find the shoddiness of this post — arguing, just as Republicans in Congress and litigious Russians start to uncover information about the Christopher Steele dossier, that the dossier is not garbage  — so telling.

I don’t think the Steele dossier is garbage.

But neither do I think it supports the claim that it predicted a lot of information we’ve found since, something Sipher goes to great pains to argue. And there are far more problems with the dossier and its production than Sipher, who claims to be offering his wisdom about how to interpret raw intelligence, lets on. So the dossier isn’t garbage (though the story behind its production may well be). But Sipher’s post is. And given that it appears to be such a desperate — and frankly, unnecessary — attempt to reclaim the credibility of the dossier, it raises questions about why he feels the need.

Making and claiming accuracy for a narrative out of raw intelligence

Sipher’s project appears to be taking what he admits is raw intelligence and providing a narrative that he says we should continue to use to understand Trump’s Russian ties.

Close to the beginning of his piece, Sipher emphasizes that the dossier is not a finished intelligence report, but raw intelligence; he blames the media for not understanding the difference.

I spent almost thirty years producing what CIA calls “raw reporting” from human agents.  At heart, this is what Orbis did.  They were not producing finished analysis, but were passing on to a client distilled reporting that they had obtained in response to specific questions.  The difference is crucial, for it is the one that American journalists routinely fail to understand.

[snip]

Mr. Steele’s product is not a report delivered with a bow at the end of an investigation.  Instead, it is a series of contemporaneous raw reports that do not have the benefit of hindsight.

Sipher explains that you need analysts to make sense of these raw reports.

The onus for sorting out the veracity and for putting the reporting in context against other reporting – which may confirm or deny the new report – rests with the intelligence community’s professional analytic cadre.

He then steps into that role, an old clandestine services guy doing the work of the analysts. The result, he says, is a narrative he says we should still use — even in the wake of eight months of aggressive reporting since the dossier came out — in trying to understand what went on with the election.

As a result, they offer an overarching framework for what might have happened based on individuals on the Russian side who claimed to have insight into Moscow’s goals and operational tactics.  Until we have another more credible narrative, we should do all we can to examine closely and confirm or dispute the reports.

[snip]

Looking at new information through the framework outlined in the Steele document is not a bad place to start.

How to read a dossier

One thing Sipher aspires to do — something that would have been enormously helpful back in January — is explain how an intelligence professional converts those raw intelligence reports into a coherent report. He describes the first thing you do is source validation.

In the intelligence world, we always begin with source validation, focusing on what intelligence professionals call “the chain of acquisition.”  In this case we would look for detailed information on (in this order) Orbis, Steele, his means of collection (e.g., who was working for him in collecting information), his sources, their sub-sources (witting or unwitting), and the actual people, organizations and issues being reported on.

He goes to great lengths to explain how credible Steele is, noting even that he “was the President of the Cambridge Union at university.” I don’t dispute that Steele is, by all accounts, an accomplished intelligence pro.

But Sipher unwisely invests a great deal of weight into the fact that the FBI sought to work with Steele.

The fact that the FBI reportedly sought to work with him and to pay him to develop additional information on the sources suggest that at least some of them were worth taking seriously.  At the very least, the FBI will be able to validate the credibility of the sources, and therefore better judge the information.  As one recently retired senior intelligence officer with deep experience in espionage investigations quipped, “I assign more credence to the Steele report knowing that the FBI paid him for his research.  From my experience, there is nobody more miserly than the FBI.  If they were willing to pay Mr. Steele, they must have seen something of real value.”

This is flat-out dumb for two reasons. First, it is one of the things the GOP has used to discredit the dossier and prosecution — complaining (rightly) that the FBI was using a document designed as opposition research, possibly even to apply for a FISA warrant. If the FBI did that, I’m troubled by it.

More importantly, the actual facts about whether FBI did pay Steele are very much in dispute, with three different versions in the public record and Chuck Grassley claiming the FBI has been giving conflicting details about what happened (it’s likely that FBI paid Steele’s travel to the US but not for the dossier itself).

WaPo reported that Steele had reached a verbal agreement that the FBI would pay him to continue his investigation of Russia’s involvement with Trump after still unnamed Democrats stopped paying him after the election. CNN then reported that FBI actually had paid Steele for his expenses. Finally, NBC reported Steele backed out of the deal before it was finalized.

If the FBI planned to pay Steele, but got cold feet after Steele briefed David Corn for a piece that made explicit reference to the dossier, it suggests FBI may have decided the dossier was too clearly partisan for its continued use. In any case, citing a “recently retired senior intelligence officer” claiming the FBI did pay Steele should either be accompanied by a “BREAKING, confirming the detail no one else has been able to!” tag, or should include a caveat that the record doesn’t affirmatively support that claim.

After vouching for Steele (again, I don’t dispute Steele’s credentials), Sipher lays out the other things that need to happen to properly vet raw intelligence, which he claims we can’t do.

The biggest problem with confirming the details of the Steele “dossier” is obvious: we do not know his sources, other than via the short descriptions in the reports.  In CIA’s clandestine service, we spent by far the bulk of our work finding, recruiting and validating sources.  Before we would ever consider disseminating an intelligence report, we would move heaven and earth to understand the access, reliability, trustworthiness, motivation and dependability of our source.  We believe it is critical to validate the source before we can validate the reliability of the source’s information.  How does the source know about what he/she is reporting?  How did the source get the information?  Who are his/her sub-sources?  What do we know about the sub-sources?  Why is the source sharing the information?  Is the source a serious person who has taken appropriate measures to protect their efforts?

The thing is, we actually know answers to two of these questions. First, Steele’s sources shared the information (at least in part) because they were paid. [Update, 11/15: According to CNN, Glenn Simpson testified that Steele did not pay his sources. That somewhat conflicts with suggestions made by Mike Morell, who said Steele paid intermediaries who paid his sources, but Simpson’s testimony may simply be a cute legal parse.] That’s totally normal for spying, of course, but if Sipher aspires to explain to us how to assess the dossier, he needs to admit that money changes hands and that’s just the way things are done (again, that’s all the more important given that it’s one of the bases the GOP is using to discredit the report).

More importantly, Sipher should note that Steele worked one step removed — from London, rather than from Moscow — than an intelligence officer otherwise might. The reports may still be great, but that additional step introduces more uncertainty into the validation. It’s all the more important that Sipher address these two issues, because they’re the ones the GOP has been and will continue to use to discredit the dossier.

Ultimately, though, in his section on vetting the document, Sipher doesn’t deal with some key questions about the dossier. Way at the end of his piece, he questions whether we’re looking at the entire dossier.

We also don’t know if the 35 pages leaked by BuzzFeed is the entirety of the dossier.  I suspect not.

He doesn’t raise two other key questions about the provenance of the dossier we’ve been given, some of which I laid out when the dossier came out when I also noted that the numbering of the dossier by itself makes it clear it’s not the complete dossier. Importantly: is the copy of the dossier leaked to BuzzFeed an unaltered copy of what Steele delivered to Fusion, in spite of the weird textual artifacts in it? And how and why did the dossier get leaked to BuzzFeed, which Steele has told us was not one of the six outlets that he briefed on its contents.

Finally, Sipher includes the obligation to “openly acknowledge the gaps in understanding” outside of the section on vetting, which is telling given that he notes only a few of the obvious gaps in this dossier.

Sipher claims the dossier predicted what wasn’t known

So there are a lot of aspects of vetting Sipher doesn’t do, whether or not he has the ability to. But having done the vetting of checking Steele’s college extracurricular record, he declares the dossier has proven to be “stunningly accurate.”

Did any of the activities reported happen as predicted?

To a large extent, yes.

The most obvious occurrence that could not have been known to Orbis in June 2016, but shines bright in retrospect is the fact that Russia undertook a coordinated and massive effort to disrupt the 2016 U.S. election to help Donald Trump, as the U.S. intelligence community itself later concluded.  Well before any public knowledge of these events, the Orbis report identified multiple elements of the Russian operation including a cyber campaign, leaked documents related to Hillary Clinton, and meetings with Paul Manafort and other Trump affiliates to discuss the receipt of stolen documents.  Mr. Steele could not have known that the Russians stole information on Hillary Clinton, or that they were considering means to weaponize them in the U.S. election, all of which turned out to be stunningly accurate.

Now as I said above, I don’t believe the dossier is junk. But this defense of the dossier, specifically as formulated here, is junk. Central to Sipher’s proof that Steele’s dossier bears out are these claims:

  • Russia undertook a coordinated and massive effort to disrupt the 2016 U.S. election to help Donald Trump
  • The Orbis report identified multiple elements of the Russian operation including
    • A cyber campaign
    • Leaked documents related to Hillary Clinton
    • Meetings with Paul Manafort and other Trump affiliates to discuss the receipt of stolen documents

As I’ll show, these claims are, with limited exceptions, not actually what the dossier shows. Far later into the dossier, the reason Sipher frames it this way is clear. He’s taking validation from recent details about the June 9, 2016 meeting.

Of course, to determine if collusion occurred as alleged in the dossier, we would have to know if the Trump campaign continued to meet with Russian representatives subsequent to the June meeting.

The Steele dossier was way behind contemporary reporting on the hack-and-leak campaign

I consider the dossier strongest in its reports on early ties between Trump associates and Russians, as I’ll lay out below. But one area where it is — I believe this is the technical term — a shit-show is the section claiming the report predicted Russia’s hacking campaign.

Here’s how Sipher substantiates that claim.

By late fall 2016, the Orbis team reported that a Russian-supported company had been “using botnets and porn traffic to transmit viruses, plant bugs, steal data and conduct ‘altering operations’ against the Democratic Party leadership.” Hackers recruited by the FSB under duress were involved in the operations. According to the report, Carter Page insisted that payments be made quickly and discreetly, and that cyber operators should go to ground and cover their tracks.

[snip]

Consider, in addition, the Orbis report saying that Russia was utilizing hackers to influence voters and referring to payments to “hackers who had worked in Europe under Kremlin direction against the Clinton campaign.” A January 2017 Stanford study found that “fabricated stories favoring Donald Trump were shared a total of 30 million times, nearly quadruple the number of pro-Hillary Clinton shares leading up to the election.”  Also, in November, researchers at Oxford University published a report based on analysis of 19.4 million Twitter posts from early November prior to the election.  The report found that an “automated army of pro-Trump chatbots overwhelmed Clinton bots five to one in the days leading up to the presidential election.”  In March 2017, former FBI agent Clint Watts told Congress about websites involved in the Russian disinformation campaign “some of which mysteriously operate from Eastern Europe and are curiously led by pro-Russian editors of unknown financing.”

The Orbis report also refers specifically to the aim of the Russian influence campaign “to swing supporters of Bernie Sanders away from Hillary Clinton and across to Trump,” based on information given to Steele in early August 2016. It was not until March 2017, however, that former director of the National Security Agency, retired Gen. Keith Alexander in Senate testimony said of the Russian influence campaign, “what they were trying to do is to drive a wedge within the Democratic Party between the Clinton group and the Sanders group.”

Here’s what the dossier actually shows about both kompromat on Hillary and hacking.

June 20: In the first report, issued 6 days after the DNC announced it had been hacked by Russia, and 5 days after Guccifer 2.0 said he had sent stolen documents to WikiLeaks, the dossier spoke of kompromat on Hillary, clearly described as years old wiretaps from when she was visiting Russia. While the report conflicts internally, one part of it said it had not been distributed abroad. As I note in this post, if true, that would mean the documents Natalia Veselnitsaka shared with Trump folks on June 9 was not the kompromat in question.

July 19: After Guccifer 2.0 had released 7 posts, most with documents, and after extended reporting concluding that he was a Russian front, the second report discussed kompromat — still seemingly meaning that dated FSB dossier — as if it were prospective.

July 26: Four days after WikiLeaks released DNC emails first promised in mid-June, Steele submitted a report claiming that Russian state hackers had had “only limited success in penetrating the ‘first tier’ of foreign targets. These comprised western (especially G7 and NATO) governments, security and intelligence services and central banks, and the IFIs.” There had been public reports of FSB-associated APT 29’s hacking of such targets since at least July 2015, and public reporting on their campaigns that should have been identified when DNC did a Google search in response to FBI’s warnings in September 2015. It’s stunning anyone involved in intelligence would claim Russia hadn’t had some success penetrating those first tier targets.

Report 095: An undated report, probably dating sometime between July 26 and July 30, did state that a Trump associate admitted Russia was behind WikiLeaks release of emails, something that had been widely understood for well over a month.

July 30: A few weeks before WikiLeaks reportedly got the second tranche of (Podesta) emails, a report states that Russia is worried that the email hacking operation is spiraling out of control so “it is unlikely that these [operations] would be ratcheted up.”

August 5: A report says Dmitry Peskov, who is reportedly in charge of the campaign, is “scared shitless” about being scapegoated for it.

August 10: Just days before WikiLeaks purportedly got the Podesta tranche of emails, a report says Sergei Ivanov said “Russians would not risk their position for the time being with new leaked material, even to a third party like WikiLeaks.”

August 10: Months after a contentious primary and over two weeks after Debbie Wasserman Schultz’s resignation during the convention (purportedly because of DNC’s preference for Hillary), a report cites an ethnic Russian associate of Russian US presidential candidate Donald TRUMP campaign insider, not a Russian, saying the email leaks were designed to “swing supporters of Bernie SANDERS and away from Hillary CLINTON and across to TRUMP.” It attributes that plan to Carter Page, but does not claim any Russian government involvement in that strategy. Nor would it take a genius for anyone involved in American politics to pursue such a strategy.

August 22: A report on Manafort’s “demise” doesn’t mention emails or any kompromat.

September 14: Three months after Guccifer 2.0 first appeared, the dossier for the first time treated the Russians’ kompromat as the emails, stating that more might be released in late September. That might coincide with Craig Murray’s reported contact with a go-between (Murray has been very clear he did not ferry the emails themselves though he did have some contact in late September).

October 12: A week after the Podesta emails first started appearing, a report states that “a stream of further hacked CLINTON materials already had been injected by the Kremlin into compliant media outlets like Wikileaks, which remained at least “plausibly deniable”, so the stream of these would continue through October and up to the election, something Julian Assange had made pretty clear. See this report for more.

October 18, 19, 19: Three reports produced in quick succession describe Michael Cohen’s role in covering up the Trump-Russia mess, without making any explicit (unredacted) mention of emails. See this post on that timing.

December 13: A virgin birth report produced as the US intelligence community scrambled to put together the case against Russia for the first time ties Cohen to the emails in unredacted form).

What the timeline of the hacking allegations in the Steele dossier (and therefore also “predictions” about leaked documents) reveal is not that his sources predicted the hack-and-leak campaign, but on the contrary, he and his sources were unbelievably behind in their understanding of Russian hacking and the campaign generally (or his Russian sources were planting outright disinformation). Someone wanting to learn about the campaign would be better off simply hanging out on Twitter or reading the many security reports issued on the hack in real time.

Perhaps Sipher wants to cover this over when he claims that, “The Russian effort was aggressive over the summer months, but seemed to back off and go into cover-up mode following the Access Hollywood revelations and the Obama Administration’s acknowledgement of Russian interference in the fall, realizing they might have gone too far and possibly benefitted Ms. Clinton.” Sure, that’s sort of (though not entirely) what the dossier described. But the reality is that WikiLeaks was dropping new Podesta emails every day, Guccifer 2.0 was parroting Russian (and Republican) themes about a rigged election, and Obama was making the first ever cyber “red phone” call to Moscow because of Russia’s continued probes of the election infrastructure (part of the Russian effort about which both the dossier and Sipher’s post are silent).

The quotes Sipher uses to defend his claim are even worse. The first passage includes two clear errors. The report in question was actually the December 13 one, not “late fall 2016” one. And the Trump associate who agreed (in the alleged August meeting in Prague, anticipating that Hillary might win) to making quick payments to hackers was Michael Cohen, not Carter Page. [Update, 12/10/17: Just Security has fixed this error.] Many things suggest this particular report should be read with great skepticism, not least that it post-dated both the disclosure of the existence of the dossier and the election, and that this intelligence was offered up to Steele, not solicited, and was offered for free.

Next, Sipher again cites the December 13 report to claim Steele predicted something reported in a November Oxford University report (and anyway widely reported by BuzzFeed for months), which seems to require either a time machine or an explanation for why Steele didn’t report that earlier. He attributes a quote sourced to a Trump insider as indicating Russian strategy, which that report doesn’t support. And if you need Keith Alexander to suss out the logic of Democratic infighting that had been clear for six months, then you’re in real trouble!

Sipher would have been better off citing the undated Report 095 (which is another report about which there should be provenance questions), which relies on the same ethnic Russian Trump insider as the August 10 report, which claims agents/facilitators within the Democratic Party and Russian émigré hackers working in the United States — a claim that is incendiary but (short of proof that the Al-Awan brothers or Seth Rich really were involved) — one that has not been substantiated.

In short, the evidence in the dossier simply doesn’t support the claim it predicted two of the three things Sipher claims it does, at least not yet.

The dossier is stronger in sketchy contacts with Russians

The dossier is stronger with respect to some, but not all Trump associates. But even there, Sipher’s defense demonstrates uneven analytic work.

First, note that Sipher relies on “renowned investigative journalist” Michael Isikoff to validate some of these claims.

Renowned investigative journalist Michael Isikoff reported in September 2016 that U.S. intelligence sources confirmed that Page met with both Sechin and Divyekin during his July trip to Russia.

[snip]

A June 2017 Yahoo News article by Michael Isikoff described the Administration’s efforts to engage the State Department about lifting sanctions “almost as soon as they took office.”

Among the six journalists Steele admits he briefed on his dossier is someone from Yahoo.

The journalists initially briefed at the end of September 2016 by [Steele] and Fusion at Fusion’s instruction were from the New York Times, the Washington Post, Yahoo News, the New Yorker and CNN. [Steele] subsequently participated in further meetings at Fusion’s instruction with Fusion and the New York Times, the Washington Post and Yahoo News, which took place in mid-October 2016.

That the Yahoo journalist is Isikoff would be a cinch to guess. But we don’t have to guess, because Isikoff made it clear it was him in his first report after the dossier got leaked.

Another of Steele’s reports, first reported by Yahoo News last September, involved alleged meetings last July between then-Trump foreign policy adviser Carter Page and two high-level Russian operatives, including Igor Sechin — a longtime associate of Russian President Vladimir Putin who became the chief executive of Rosneft, the Russian energy giant.

In other words, Sipher is engaging in navel-gazing here, citing a report based on the Steele dossier, to say it confirms what was in the Steele dossier.

Sipher similarly cites a NYT article that was among the most criticized for the way it interprets “senior Russian intelligence officials” loosely to include anyone who might be suspect of being a spook.

We have also subsequently learned of Trump’s long-standing interest in, and experience with Russia and Russians.  A February 2017 New York Times article reported that phone records and intercepted calls show that members of Trump’s campaign and other Trump associates had repeated contacts with senior Russian officials in the year before the election.  The New York Times article was also corroborated by CNN and Reuters independent reports.

The two reports he claims corroborate the NYT one fall far short of the NYT claim about talks with Russian intelligence officials — a distinction that is critical given what Sipher claims about Sergey Kislyak, which I note below.

Carter Page

Sipher cites the Carter Page FISA order as proof that some of these claims have held up.

What’s more, the Justice Department obtained a wiretap in summer 2016 on Page after satisfying a court that there was sufficient evidence to show Page was operating as a Russian agent.

But more recent reporting, by journalists Sipher elsewhere cites approvingly, reveals that Page had actually been under a FISA order as early as 2014.

Page had been the subject of a secret intelligence surveillance warrant since 2014, earlier than had been previously reported, US officials briefed on the probe told CNN.

Paul Manafort

I have no complaint with Sipher’s claims about Manafort — except to the extent he suggests Manafort’s Ukrainian corruption wasn’t know long before the election. Sipher does, however, repeat a common myth about Manafort’s influence on the GOP platform.

The quid pro quo as alleged in the dossier was for the Trump team to “sideline” the Ukrainian issue in the campaign.  We learned subsequently the Trump platform committee changed only a single plank in the 60-page Republican platform prior to the Republican convention.  Of the hundreds of Republican positions and proposals, they altered only the single sentence that called for maintaining or increasing sanctions against Russia, increasing aid for Ukraine and “providing lethal defensive weapons” to the Ukrainian military.  The Trump team changed the wording to the more benign, “appropriate assistance.”

Republicans have credibly challenged this claim about the platform. Bob Dole is credited with making the platform far harsher on China in the service of his Taiwanese clients. And Trump’s team also put in language endorsing the revival of Glass-Steagall, with support from Manafort and/or Carl Icahn.

Michael Cohen

Sipher’s discussion of Trump lawyer Michael Cohen is the weirdest of all, not least because the Cohen reports are the most incendiary but also because they were written at a time when Steele had already pitched the dossier to the media (making it far more likely the ensuing reports were the result of disinformation). Here’s how Sipher claims the Steele dossier reports have been validated.

We do not have any reporting that implicates Michael Cohen in meetings with Russians as outlined in the dossier.  However, recent revelations indicate his long-standing relationships with key Russian and Ukrainian interlocutors, and highlight his role in a previously hidden effort to build a Trump tower in Moscow. During the campaign, those efforts included email exchanges with Trump associate Felix Sater explicitly referring to getting Putin’s circle involved and helping Trump get elected.

Go look at that “recent revelations” link. It goes to this Josh Marshall post which describes its own sourcing this way:

TPM Reader BR flagged my attention to this 2007 article in The New York Post.

[snip]

Because two years ago, in February 2015, New York real estate trade sheet The Real Deal reported that Cohen purchased a $58 million rental building on the Upper East Side.

This is not recent reporting!! Again, this is stuff that was publicly known before the election.

More importantly, given Cohen’s rebuttal to the dossier, Marshall supports a claim that Cohen has ties to Ukraine, not Russia. The dossier, however, claims Cohen has ties to the latter, as Cohen mockingly notes.

Felix Sater

Then there are the Trump associates who are now known to have been central to any ties between Trump and the Russians that the Steele dossier didn’t cite — as least not as subjects (all could well be sources, which raises other questions). The first is Felix Sater, whom Sipher discusses three times in suggesting that the dossier accurately predicts Cohen’s involvement in the Russian negotiations.

To take one example, the first report says that Kremlin spokesman Dmitry Peskov was responsible for Russia’s compromising materials on Hillary Clinton, and now we have reports that Michael Cohen had contacted Peskov directly in January 2016 seeking help with a Trump business deal in Moscow (after Cohen received the email from Trump business associate Felix Sater saying “Our boy can become president of the USA and we can engineer it. I will get all of Putins team to buy in on this.”).

[snip]

Following the inauguration, Cohen was involved, again with Felix Sater, to engage in back-channel negotiations seeking a means to lift sanctions via a semi-developed Russian-Ukrainian plan (which also included the hand delivery of derogatory information on Ukrainian leaders) also fits with Orbis reporting related to Cohen.

Given that Sater’s publicly known links between mobbed up Russians and Trump go back a decade, why isn’t he mentioned in the dossier? And why does the dossier seemingly contradict these claims about an active Trump Tower deal?

Aras Agalarov and Rinat Akhmetshin

There are far more significant silences about two other Trump associates, Aras Agalarov and Rinat Akhmetshin.

To be fair, the dossier isn’t entirely silent about the former, noting in at one place that Agalarov would be the guy to go to to learn about dirt on Trump in Petersburg (elsewhere he could be a source).

Far, far more damning is the dossier’s silence (again, at least as a subject rather than source) about Akhmetshin. That’s long been one of the GOP complaints about the dossier — that Akhmetshin was closely involved with Fusion GPS on Magnitsky work in parallel with the Trump dossier, which (if Akhmetshin really is still tied to Russian intelligence) would provide an easy feedback loop to the Russians. The dossier’s silence on someone well known to Fusion GPS is all the more damning given the way that Sipher points to the June 9 meeting (which the dossier didn’t report, either) as proof that the dossier has been vindicated.

It was also apparently news to investigators when the New York Times in July 2017 published Don Jr’s emails arranging for the receipt of information held by the Russians about Hillary Clinton. How could Steele and Orbis know in June 2016 that the Russians were working actively to elect Donald Trump and damage Hillary Clinton?

[snip]

To take another example, the third Orbis report says that Trump campaign manager Paul Manafort was managing the connection with the Kremlin, and we now know that he was present at the June 9 2016 meeting with Donald Trump, Jr., Russian lawyer Natalia Veselnitskaya and Rinat Akhmetshin, who has reportedly boasted of his ties to ties and experience in Soviet intelligence and counterintelligence.  According to a recent New York Times story, “Akhmetshin told journalists that he was a longtime acquaintance of Paul J. Manafort.”

There’s no allegation that investigations didn’t know about June 2016 plan to hurt Hillary (indeed, the Guccifer 2.0 stuff that Sipher ignores was public to all). Rather they didn’t know — but neither did Fusion, who has an established relationship with Akhmetshin — about the meeting involving Akhmetshin. If you’re going to claim the June 9 meeting proves anything, it’s that the dossier as currently known has a big hole right in Fusion’s client/researcher list.

Sergey Kislyak

Which brings me — finally! — to Sipher’s weird treatment of Sergey Kislyak. Sipher argues (correctly) that Trump associates’ failure to report details of their contacts with Russians may support a conspiracy claim.

 Of course, the failure of the Trump team to report details that later leaked out and fit the narrative may make the Steele allegations appear more prescient than they otherwise might.  At the same time, the hesitancy to be honest about contacts with Russia is consistent with allegations of a conspiracy.

Of course, Trump’s folks have failed to report details of that June 9 meeting as well as meetings with Sergey Kislyak. Having now invested his vindication story on that June 9 meeting, he argues that reports about Kislyak (on which the NYT article he cites approvingly probably rely) are misguided; we need to look to that June 9 meeting intead.

It should be noted in this context, that the much-reported meetings with Ambassador Kislyak do not seem to be tied to the conspiracy. He is not an intelligence officer, and would be in the position to offer advice on politics, personalities and political culture in the United States, but would not be asked to engage in espionage activity.  It is likewise notable that Ambassador Kislyak receives only a passing reference in the Steele dossier and only having to do with his internal advice on the political fallout in the U.S. in reaction to the Russian campaign.

Of course, to determine if collusion occurred as alleged in the dossier, we would have to know if the Trump campaign continued to meet with Russian representatives subsequent to the June meeting.

This seems utterly bizarre. We know what happened after June 9, in part: Per Jared Kushner (who also is not mentioned in the dossier or Sipher’s column), immediately after the election Kislyak started moving towards meeting about Syria (not Ukraine). But in the process, Kushner may have asked for a back channel and at Kislyak’s urging, Kushner took a meeting with the head of a sanctioned bank potentially to talk about investments in his family’s debt-ridden empire. And all that is the lead-up to the Mike Flynn calls with Kislyak about sanctions relief which provide some of the proof that Trump was willing to deliver the quo that the dossier claims got offered for quids.

That latter story — of the meetings Kushner and Flynn did in the wake of the election and events that may have taken place since — is every bit as coherent a narrative as the Steele dossier or the entirely new narratives tied to the June 9 meeting (which Sipher claims are actually the Steele narrative).

Of course, neither is yet evidence of collusion. And that’s, frankly, what we as citizens should be after.

A narrative offered up by an intelligence contractor who was always trying to catch up to the central part of the story — the hack-and-leak — is not what we should be striving for. That’s why this dossier is probably mostly irrelevant to the Mueller probe, no matter how the GOP would like to insinuate the opposite. If there was collusion (or rather, coordination on all this stuff between the campaign and Russia), we should expect evidence of it. The Steele dossier, as I have noted, left out one of the key potential proofs of that, in spite of having ties with someone who attended the meeting.

All that said, it would be useful for someone responsible to respond to GOP criticisms and, where invented (such as with the claim that Steele paying sources diminishes its value), demonstrate that. It would be useful for someone to explain what we should take from the dossier.

Sipher didn’t do that, though. Indeed, his post largely suffers from the same bad analysis he accuses the media of.

Update: In the original I got the date of the final report incorrect. That has been corrected.

Update, 12/10/17: I didn’t realize it, but Just Security updated Sipher’s post to include this language, which it explains with an editor’s note saying “Editor’s note: This article was update to provide additional analysis on Carter Page.” Compare this with this. Here’s the language.

Admittedly, Isikoff’s reporting may have relied on Steele himself for that information. Isikoff, however, also reported that U.S. intelligence officials were confident enough in the information received about Page’s meeting Russian officials to brief senior members of Congress on it. There are also other indicia that are also consistent with the Orbis report but only developed or discovered later. In early December 2016, Page returned to Moscow where he said he had “the opportunity to meet with an executive from” Sechin’s state oil company. In April 2017, Page confirmed that he met with and passed documents to a Russian intelligence officer in 2013. Court documents include an intercept in April 2013 of conversations between the Russians discussing their effort to recruit Page as “as an intelligence source.” A Russian intelligence officer said of Page: “He got hooked on Gazprom … I don’t know, but it’s obvious that he wants to earn lots of money … For now his enthusiasm works for me. I also promised him a lot … You promise a favor for a favor. You get the documents from him and tell him to go fuck himself.” In late December 2016, Sechin’s chief of staff, Oleg Erovinkin “who may have been a source for ex-British spy Christopher Steele’s Trump dossier,” according to multiple reports, was found dead in the back of his car in Moscow.

But this passage introduces new errors for Sipher’s post!

First, here’s the language (in an article Just Security never links) Sipher relies on to justify using Isikoff’s Steele-based reporting to claim Steele had been proven correct.

After one of those briefings, Senate minority leader Harry Reid wrote FBI Director James Comey, citing reports of meetings between a Trump adviser (a reference to Page) and “high ranking sanctioned individuals” in Moscow over the summer as evidence of “significant and disturbing ties” between the Trump campaign and the Kremlin that needed to be investigated by the bureau.

Some of those briefed were “taken aback” when they learned about Page’s contacts in Moscow, viewing them as a possible back channel to the Russians that could undercut U.S. foreign policy, said a congressional source familiar with the briefings but who asked for anonymity due to the sensitivity of the subject. The source added that U.S. officials in the briefings indicated that intelligence reports about the adviser’s talks with senior Russian officials close to President Vladimir Putin were being “actively monitored and investigated.”

A senior U.S. law enforcement official did not dispute that characterization when asked for comment by Yahoo News. “It’s on our radar screen,” said the official about Page’s contacts with Russian officials. “It’s being looked at.”

It is true that “U.S. intelligence officials were confident enough in the information received about Page’s meeting Russian officials to brief senior members of Congress on it,” and that Harry Reid was leaking from the Steele dossier just like Isikoff was. But the “senior US law enforcement officer” does not back the identities of those Page met with, just that “it’s being looked at.”

That’s important for the way that Page’s meetings with people other than Igor Sechin have been used to claim the dossier has borne out. Not-A = A. Which is what Sipher does here, by pointing to Page saying he met with Rosneft but not Sechin. “Page says he was not referring to Sechin in his remarks,” the linked AP story says (as does Page’s congressional testimony).

Then Sipher points to language unsealed in a court filing in January 2015 that Page admitted — after reporting on it — was him. That Page was wrapped up in an earlier Russian spy prosecution is another of those things one might ask why Steele didn’t know, particularly given that the filing and the case was already public.

But the citation also exacerbates the problems with Sipher’s reliance on Page’s FISA wiretap as proof the Steele dossier proved out. As I noted above, later reports stated Page had been under FISA wiretap “since 2014, earlier than had been previously reported, US officials briefed on the probe told CNN.” That means it wasn’t the meetings in Russia, per se, that elicited the interest, but (at least) the earlier interactions with Russian spies.

Finally, Sipher points to the death of Oleg Erovinkin, something I’ve pointed to myself (and which would only be “Carter Page” analysis if Page actually had met with Sechin). Since Sipher updated this post, however, Luke Harding wrote (on page 101),

Steele was adamant that Erovinkin wasn’t his source and “not one of ours.”

As a person close to Steele put it to me: “Sometimes people just die.”

I’m not sure I find Harding entirely reliable elsewhere, and I can see why Steele would deny working with Erovinkin if the leak of his work had gotten the man killed. But if you buy Harding, then Erovinkin no longer proves the value of the Steele dossier either.

Update, 12/10: According to the Wayback Machine this change was made between October 25 and November 6. Ryan Goodman explained that he didn’t give me a hat-tip for this correction because he’s not sure whether he corrected because of me because a Daily Caller reporter also weighed in.

It is true that Chuck Ross (with whom I discuss the dossier regularly) tweeted that Sipher’s Isikoff reference was self-confirming on November 4, shortly before the change was made.

Ryan and I had a conversation about the errors in this piece on September 6, when the post first came out, both on Twitter then–late that evening–on DM. I included a link to my post.

I guess Ryan is now confessing he never read this post, and let notice of egregious errors sit unreviewed for two months, because he didn’t like my tone.

 

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CNN Worries about Mueller’s Aggressive Tactics, But Real Concern May Be Senate Intelligence Committee

CNN has a cryptic story — pitched as evidence that the committees conducting the Russian investigation may be clashing with the Mueller investigation — suggesting two kinds of “aggressive tactics” on the part of Robert Mueller’s team.

The less cryptic of the two tactics is that the FBI seized attorney-client privileged documents in the morning raid of Manafort’s house.

Mueller issued subpoenas to Manafort’s former lawyer and current spokesman and authorized a pre-dawn raid of his Virginia home in late July.

During that raid, Mueller’s investigators took documents considered to be covered by attorney-client privilege, sources told CNN.

Lawyers from the WilmerHale law firm, representing Manafort at the time, warned Mueller’s office that their search warrant didn’t allow access to attorney materials. The documents in question have now been returned, the sources say.

The episode raised questions about whether investigators have seen materials they weren’t entitled to obtain.

“You can’t unsee something,” one source said.

It’s not an uncommon problem in FBI investigations. US attorneys typically have separate document-review teams to prevent investigators from handling materials they aren’t allowed to have. It’s not clear what procedures Mueller’s office uses.

We first head of this claim not from Manafort, but from Trump’s lawyer, John Dowd, via an email sent to WSJ but instead reported by Fox.

Dowd also said agents seized “privileged and confidential materials prepared for Mr. Manafort by his counsel to aid him in his cooperation with the Congressional committees,”

The claim that this privileged information pertained to Manafort’s cooperation with the Congressional committees may help to elucidate the second claim: that Mueller’s lawyers made an agreement with Manafort’s lawyers about what they could obtain from the Senate Intelligence Committee, then overstepped it in trying to get an actual transcript of the interview. CNN rather unhelpfully doesn’t tell us when Mueller made the agreement with Manafort’s lawyers about his appearance before the Senate Intelligence Committee, before or after the interview and the raid.

After Manafort privately interviewed with Senate intelligence committee staff in late July to discuss the June 2016 meeting between Trump Jr. and Russian operatives, Mueller’s lawyers have struggled to get a copy of the interview transcript.

Manafort’s attorneys, in talks with the special counsel’s office, agreed to allow Mueller’s team only to get the documents Manafort had turned over to the committee, not the interview transcript, according to the sources.

Yet an attorney with the Mueller team later told the committee that they were authorized by Manafort’s representatives to have the Manafort interview transcript, sources familiar with the discussions told CNN. Committee lawyers later learned from Manafort’s attorneys that they had not provided that consent, the sources say.

As a result of the dispute, the committee hasn’t turned over any documents and the matter is still under discussion, sources say.

That’s critically important given the concern (which is real), that Mueller’s team “can’t unsee something.” That is, they may have seen something in the privileged communications about Manafort’s interview strategy that made them interested in the transcript, and only then asked for the transcript. Alternately, Manafort (and/or Dowd!) may just be bullshitting here, in a way to get SSCI to withhold something that became far more damning after the raid on his home.

Dowd’s other complaints — that Mueller didn’t need to raid Manafort’s home because he could get everything via other means, as witnessed by Manafort’s cooperation with SSCI — suggest the latter may be the case.

Dowd, in his note, questioned the validity of the search warrant itself, calling it an “extraordinary invasion of privacy.” Dowd said Manafort already was looking to cooperate with congressional committees and said the special counsel never requested the materials from Manafort.

“These failures by Special Counsel to exhaust less intrusive methods is a fatal flaw in the warrant process and would call for a Motion to Suppress the fruits of the search,” Dowd wrote, arguing the required “necessity” of the warrant was “misrepresented to the Court which raises a host of issues involving the accuracy of the warrant application and the supporting FBI affidavit.”

But there’s something else important here. As I laid out here, the Mueller raid happened in the wake of two developments in the Senate Judiciary Committee. On Monday, July 24 (“last night” in a July 25 release), Grassley and Feinstein issued a subpoena for Manafort, in particular complaining that Manafort wanted to appear before just one committee, SSCI.

While we were willing to accommodate Mr. Manafort’s request to cooperate with the committee’s investigation without appearing at Wednesday’s hearing, we were unable to reach an agreement for a voluntary transcribed interview with the Judiciary Committee.  Mr. Manafort, through his attorney, said that he would be willing to provide only a single transcribed interview to Congress, which would not be available to the Judiciary Committee members or staff.  While the Judiciary Committee was willing to cooperate on equal terms with any other committee to accommodate Mr. Manafort’s request, ultimately that was not possible. Therefore, yesterday evening, a subpoena was issued to compel Mr. Manafort’s participation in Wednesday’s hearing. As with other witnesses, we may be willing to excuse him from Wednesday’s hearing if he would be willing to agree to production of documents and a transcribed interview, with the understanding that the interview would not constitute a waiver of his rights or prejudice the committee’s right to compel his testimony in the future.

That is, Manafort was digging his heels in on a strategy that would have him cooperate exclusively with SSCI, not with SJC. And, as with Mueller, Manafort was refusing to turn over that transcript to SJC.

Faced with the threat of the subpoena, however, Manafort agreed to turn over documents and suggested he might be willing to do a separate transcribed interview.

Faced with issuance of a subpoena, we are happy that Mr. Manafort has started producing documents to the Committee and we have agreed to continue negotiating over a transcribed interview. It’s important that he and other witnesses continue to work with this committee as it fulfills its oversight responsibility. Our investigation is still in its early stages, and we will continue to seek information from witnesses as necessary. As we’ve said before, we intend to get the answers that we need, one way or the other. Cooperation from witnesses is always the preferred route, but this agreement does not prejudice the committee’s right to compel his testimony in the future.

This is the reluctant, last minute “cooperation” that Dowd pointed to as basis for his claim that Mueller could have gotten Manafort’s cooperation via other means, and part of that cooperation had Manafort undergoing a transcribed interview solely with SSCI.

Hours after Manafort made this agreement with SJC, Mueller’s team raided Manafort.

Two more details are worth recalling. We now know that on the day the WaPo broke the story of Mueller’s raid of Manafort, Donald Trump bitched out Mitch McConnell on the phone about not protecting him in the Russia probe. NYT described Trump as being even angrier about that than McConnell’s failure to pass TrumpCare.

During the call, which Mr. Trump initiated on Aug. 9 from his New Jersey golf club, the president accused Mr. McConnell of bungling the health care issue. He was even more animated about what he intimated was the Senate leader’s refusal to protect him from investigations of Russian interference in the 2016 election, according to Republicans briefed on the conversation.

That’s when Dowd started emailing reporters at Murdoch publications, complaining that the Manafort raid endangered Trump.

Now consider that the other thing CNN includes among Mueller’s aggressive tactics — his subpoena of Manafort’s former lawyer Melissa Laurenza — is effectively a subpoena of a former McConnell staffer.

The subpoenas seeking documents and testimony were sent to Melissa Laurenza, an attorney with the Akin Gump law firm who until recently represented Manafort, and to Jason Maloni, who is Manafort’s spokesman, according to people familiar with the matter.

So it may be that Trump believed Manafort had certain understandings with McConnell that the raid — executed hours after Manafort’s SSCI interview — disrupted.

All that being said, once you consider that both Mueller’s team and Grassley’s committee are facing similar difficulties with Manafort, it suggests the focus here should not be on Mueller, but instead on what kind of special deals SSCI (Chaired by former Trump advisor Richard Burr) is offering up.

Sure, we have yet to have committees granting immunity to protect the president and his lackeys — which is what thwarted the Iran-Contra investigation. But given that SSCI seems to have offered to serve as a black hole for Manafort’s sworn claims, I think it time to stop assuming, as many in DC are doing, that that’s where the grown-ups live.

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Senate Judiciary Committee Republicans Have No Excuse for Not Doing Something about White Supremacist Violence

Last I checked, the following Republicans on the Senate Judiciary Committee have criticized white supremacists, violence, and/or Trump’s appeasement of the former in Charlotteville.

Chuck Grassley, Senate Judiciary Committee Chair:

What ” WhiteNatjonalist” are doing in Charlottesville is homegrown terrorism that can’t be tolerated anymore that what Any extremist does

Orrin Hatch, President pro tempore:

We should call evil by its name. My brother didn’t give his life fighting Hitler for Nazi ideas to go unchallenged here at home

Their tiki torches may be fueled by citronella but their ideas are fueled by hate, & have no place in civil society.

Lindsey Graham, Chair of Subcommittee on Crime and Terrorism:

The South Carolina Republican called on Attorney General Jeff Sessions to go to Virginia and “personally handle domestic terrorism investigations” and alleged civil rights abuses by the Ku Klux Klan and neo-Nazis “who took this young woman’s life.”

Graham was referring to Heather Heyer, 32, who was killed when a car ran into a group of counter-protesters Saturday in Charlottesville where white supremacists and neo-Nazis were holding a “Unite the Right” rally. Many more were injured.

Graham additionally proposed the Departments of Justice and Homeland Security form a task force on the threat of white supremacist groups and report back to Congress with potential solutions for cracking down on them.

“This is an opportunity for the Trump administration to come down like a hammer on white supremacists,” Graham said during a news conference in his Columbia office. “And I hope they do.”

John Cornyn, Chair of Subcommittee on Border Security and Immigration and Senate Majority Whip:

No place for the bigotry & hate-filled violence in . These actions should be condemned in the strongest possible terms.

And (update, from August 17):

We’ve all been shocked that the unhealed wounds of the nation’s racial divide flared up in such a surprising and disturbing way,” Cornyn said in a Chronicle interview. “I think the president had an opportunity to send a message that would unite America behind our common resolve to heal those wounds and unite our country, and unfortunately I don’t think he did that.”

Ted Cruz, Chair of Subcommittee on the Constitution, who while Chair of the Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts, had a hearing on the importance of naming Islamic terrorism Islamic terrorism:

It’s tragic and heartbreaking to see hatred and racism once again mar our great Nation with bloodshed. Heidi’s and my prayers are with the loved ones of those killed and injured in the ongoing violence in Charlottesville. The First Amendment protects the rights of all Americans to speak their minds peaceably, but violence, brutality, and murder have no place in a civilized society.

The Nazis, the KKK, and white supremacists are repulsive and evil, and all of us have a moral obligation to speak out against the lies, bigotry, anti-Semitism, and hatred that they propagate. Having watched the horrifying video of the car deliberately crashing into a crowd of protesters, I urge the Department of Justice to immediately investigate and prosecute this grotesque act of domestic terrorism.

These bigots want to tear our country apart, but they will fail. America is far better than this. Our Nation was built on fundamental truths, none more central than the proposition ‘that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.’

But,

“One of the things we’re seeing going on is the media and the Democrats are, to the surprise of no one, demagoguing this issue and using it for political advantage,” Cruz said. “So, in the media’s telling, they want to tar and feather any Republican, any conservative, and paint us all as these crazy racist nutbags.”

Jeff Flake, Chair of Subcommittee Privacy, Technology, and the Law):

We can’t accept excuses for white supremacy & acts of domestic terrorism. We must condemn. Period.

Flake, more generally:

Under our Constitution, there simply are not that many people who are in a position to do something about an executive branch in chaos. As the first branch of government (Article I), the Congress was designed expressly to assert itself at just such moments. It is what we talk about when we talk about “checks and balances.” Too often, we observe the unfolding drama along with the rest of the country, passively, all but saying, “Someone should do something!” without seeming to realize that that someone is us. And so, that unnerving silence in the face of an erratic executive branch is an abdication, and those in positions of leadership bear particular responsibility.

Ben Sasse, Chair of Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts:

“I refuse to accept that mankind is tragically bound to the starless midnight of racism… Unconditional love will have the final word” -MLK

“My dream is of a place and a time where America will once again be seen as the last best hope of earth.” -Abraham Lincoln

“We hold these truths to be self-evident, that ALL men are created equal, that they are endowed, by their Creator with…unalienable Rights”

These people are utterly revolting–and have no understanding of America. This creedal nation explicitly rejects “blood & soil” nationalism.

John Kennedy:

Violence and hatred are never the answer.

There are 20 members of the Senate Judiciary Committee, 11 Republicans and 9 Democrats. Of the Republicans, eight have made statements at least condemning the violence in Charlottesville, even if Cornyn and Kennedy, among others, are obviously issuing empty condemnations.

If even two of the Republicans who’ve made statements condemning the right wing violence in Charlottesville are serious — or more specifically serious about actions that DOJ must take, as in comments that both Lindsey and Cruz made — then they’ve got the numbers to make it happen.

They’ve got the numbers to force DOJ to refund the Life After Hate program, which white supremacist Seb Gorka’s wife Katherine defunded. They’ve got the numbers to ask Jefferson Beauregard Sessions whether his DOJ will treat this act of terrorism as terrorism. They’ve got the numbers to ask whether FBI ignored warnings of surging white supremacism.

Republicans often complain that there’s nothing they can do about their unmanageable President. This is one case where that’s patently false.

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Akhmetshin’s Involvement and the Trump Dossier

Over the course of the slow reveal of details about the meeting Don Jr., Jared Kushner, and Paul Manafort had on June 9, 2016 with Natalia Veselnitskaya, the focus has rightly been on the changing stories of the initially identified players.

It was about adoption, maybe she made some vague statements, oh yeah, those vague statements were oppo research, yes, yes, here are the emails showing that oppo research came from an affirmative effort in Russia to elect Dad, how can a ‘good boy‘ be expected to remember all the Russians involved in a meeting? Don Jr. blathered until, perhaps, his newly-hired lawyer shut him up.

I have no ties to the Russian government, I had no damaging information and if I did I had no intention of leaving it, well, maybe I did get information directly from a top Russian prosecutor, explained Veselnitskaya over the course of the week.

I accidentally hit send, I met with no foreigners, maybe there were Russians, but not Veselnitskaya, oh yeah, maybe her too, my lawyers told Pop’s lawyers, well maybe I never got around to mentioning it to him personally, the tale of Kushner’s difficulties identifying all the Russians he met with evolved over the week, at which point Jamie Gorelick removed herself from any responsibility criminally defending the guy.

All of which climaxed in the news that former Russian intelligence officer Rinat Akhmetshin and accused (before the accusation was withdrawn) hacker also attended the meeting.

Akhmetshin has boasted to associates that he had served in the military with a group known as the Osoby Otdel, or Special Section, which in the Soviet period was a division of the K.G.B. The group was distinct from the G.R.U., or Main Intelligence Directorate of the defense ministry, an organization with which he has denied any affiliation.

[snip]

The Justice Department contacted Mr. Akhmetshin in March and asked him why he did not register his work for the nonprofit group under the Foreign Agent Registration Act, which requires anyone who lobbies in the United States on behalf of foreign interests to disclose their work to the Justice Department. Mr. Akhmetshin responded to the Justice Department in April, saying he had properly registered under congressional lobbying rules.

In 2015, International Mineral Resources, a mining company based in the Netherlands, accused Mr. Akhmetshin of hacking into its computer systems, stealing confidential information and unlawfully disseminating it as part of a smear campaign orchestrated by a rival Russian mining firm.

All of which, given that the meeting took place a week before hacked emails started coming out, sure makes it look like the principals were deliberately hiding Akhmetshin’s participation in the meeting, though Akhmetshin claims he got pulled into the meeting that day, still wearing his jeans and t-shirt.

He said he had learned about the meeting only that day when Veselnitskaya asked him to attend. He said he showed up in jeans and a T-shirt.

Given all these changing stories and what they might hide I’d like to return to Don Sr.’s initial response. Way back on Sunday, the spox for Trump’s lawyers (who reportedly had known of these emails for three weeks) claimed the meeting had been a set-up by the same intelligence firm, Fusion GPS, that put together the Trump dossier.

“We have learned from both our own investigation and public reports that the participants in the meeting misrepresented who they were and who they worked for,” Mark Corallo, spokesperson for Trump’s outside counsel, said in a statement released a few hours after the original New York Times story published.

“Specifically, we have learned that the person who sought the meeting is associated with Fusion GPS, a firm which according to public reports, was retained by Democratic operatives to develop opposition research on the president and which commissioned the phony Steele dossier,” Corallo continued, referring to the strategic intelligence firm hired by anti-Trump Republicans, then by Democrats, to do opposition research on the candidate.

(Fusion GPS eventually retained former MI-6 agent Christopher Steele to research potential connections between Trump and Russia, an investigation that resulted in a dossier that alleged financial, political, and personal connections between the then-president-elect and the Kremlin—a dossier that Trump’s communications team might have preferred to go unmentioned.)

“These developments raise serious issues as to exactly who authorized and participated in any effort by Russian nationals to influence our election in any manner,” Corallo concluded.

Even as all this was happening, Chuck Grassley released a testimony list suggesting the head of Fusion GPS, Glenn Simpson, would testify aside the key player accusing Akhmetshin of unlawfully lobbying for Russia, William Browder. But Simpson continues, as he started in June, to refuse to testify willingly.

The insinuation this meeting was all a set-up by a Clinton-surrogate was absolutely a cheap attempt, worthy of Corallo, to flip this story. But as I said earlier in this week, it’s more clever than first assumed. As I noted, a full eleven days after the meeting (and five days after the first stolen documents appeared), Fusion was still presenting conflicting details about whether Russian-derived Clinton dirt had been shared with Trump’s campaign, ultimately claiming, however, that it hadn’t.

The report, dated 11 days after the Veselnitskaya meeting, states that the Kremlin has a dossier on Clinton, but that it has not as yet been distributed abroad.

That claim is seemingly contradicted by the claims of Source A (a senior Russian Foreign Ministry figure) and Source D. Indeed, Source D appears to have claimed, in June, that dirt from Russia was helpful.

Ultimately, though, the memo seems to credit Source B, “a former top level Russian intelligence officer” and Source G, a senior Kremlin official, who said the dossier, attributed here to the FSB, had not yet been shared with Trump or anyone else in America.

Consider: First, Akhmetshin himself qualifies as a former intelligence officer (though it’s not clear how senior he was). He might have reason to deny that intelligence he tried to pass was the intelligence in question. And he’d likely be right, given that the Clinton dossier was purportedly a FSB, not a GRU, product. But it’s even possible that he didn’t want Hillary to know that he or a colleague was dealing dirt, however bad.

Nevertheless, the senior-most Russian quoted in the dossier compiled for Hillary Clinton claimed — and Steele appears to have believed — that Russia’s dirt on Hillary Clinton had not yet been released.

As I noted (and others have expanded elsewhere) some of these sources could be people who attended the meeting, particularly once we learn which Agalarov was involved and how closely.

It is definitely cheap to suggest that having three principals from Trump’s campaign meet with Russians claiming to represent the wishes of the Russian government is just an opposition plot invented by a Hillary surrogate. But the feedback loop within Fusion and the narrow circle of key Russian sources on Trump’s campaign is definitely worth considering.

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[Photo: National Security Agency, Ft. Meade, MD via Wikimedia]

NSA’s Unsatisfying Response to Rosemary Collyer’s “Lack of Candor” Accusations

In yesterday’s 702 hearing, Chuck Grassley asked NSA and FBI to explain why Rosemary Collyer (who I believe is the worst presiding FISA judge of the modern tennis era) accused them of a lack of candor.

FBI’s Carl Ghattas dodged one such accusation, but basically admitted what I laid out here with regards to the other — that FBI really wasn’t set up to fulfill Thomas Hogans 2015 order to report on any queries that return criminal information. Ghattas promised FBI would fix that; I’m skeptical the current structure of FBI audits will facilitate that happening but I’m happy to be proven wrong.

I want to look more closely at how Paul Morris, NSA’s Deputy General Counsel for Operations, explained the 10-month delay in informing the FISC about the NSA’s prohibited searches of upstream content.

We had initially identified that we had made some errors of US person queries against our upstream collection. So since 2011, our minimization procedures had prohibited outright any US person queries running against upstream 702 collection, largely because of abouts communications. We had reported the initial query errors — I believe it was in 2015 when we made the initial report, but our Office of Inspector General as well as our compliance group had separate reviews ongoing to try to determine the scope and scale of the problem. So during the course of filing the renewal for the 702 certifications that were pending, the court held a hearing in early October 2016 when it asked about various compliance matters to include the improper queries and we reported on the status of those investigations as we knew them to be at that time. On about two, I think, two or three weeks later, the Office of Inspector General completed its follow-up review of the US person query and discovered that the scope of the problem was larger than we’d originally reported. Soon as we identified that the problem was larger than we thought it was, we notified the Justice Department and the ODNI, in turn the court was notified and the court held a hearing on October 26 to go into further detail about the problem and it ultimately led to a couple of extensions of the certifications and ultimately our decision to terminate abouts collection in order to remedy the compliance problem. So my sense is that the institutional lack of candor that the court was referring to was really frustration that when we had the hearing on October 6 [sic] we did not know the full scope and scale of the problem until later which was reported roughly, again, October 24, which led to a hearing on October 26, which was the day before the court was supposed to rule on extending the certification.

As a reminder, this problem actually extends back to at least 2013. As I’ll eventually show, NSA obtained back door search authority in 2011 after a series of unauthorized back door searches, meaning they were just approving something that was already being done, just as this year’s opinion just approved searches that were going on in uncontrolled fashion.

Furthermore, while NSA surely informed the FISC of some of these problems along the way (otherwise I wouldn’t have known about them when I called them out last August), it did not deal with the ongoing problems in its application, which would have flagged an ongoing compliance problem of the magnitude shown even by the 2016 IG Report.

Morris’ claim that NSA’s IG reached some kind of conclusory decision between the first hearing on October 4 and the notice of the further problems on October 24 is dubious, given that the NSA said that follow-up study was still ongoing in a January 3 filing.

In anticipation of the January 31 deadline, the government updated the Court on these querying issues in the January 3, 2017 Notice. That Notice indicated that the IG’s follow-on study (covering the first quarter of 2016) was still ongoing.

As Collyer noted, at that point the NSA was still identifying all the systems implicated, notably finding queries that elude NSA’s query audit system.

It also appeared that NSA had not yet fully assessed the scope of the problem: the IG and OCO reviews “did not include systems through which queries are conducted of upstream data but that do not interface with NSA’s query audit system.” Id. at 3 n.6. Although NSD and ODNI undertook to work with NSA to identify other tools and systems in which NSA analysts were able to query upstream data, id., and the government proposed training and technical measures, it was clear to the Court that the issue was not yet fully scoped out.

Also at this point, NSA was “disclosing” the root cause of the problem as the same one identified back in 2013 and 2014, when NSA dismissed the possibility of a technical fix to the opt-out problem.

The January 3, 2017 Notice stated that “human error was the primary factor” in these incidents, but also suggested that system design issues contributed. For example, some systems that are used to query multiple datasets simultaneously required analysts to “opt-out” of querying Section 702 upstream Internet data rather than requiring an affirmative “opt-in,” which, in the Court’s view, would have been more conducive to compliance. See January 3, 2017 Notice at 5-6.

Ultimately, this chronology — and Morris’ unsatisfactory explanation for it — ought to raise real questions about what the bar is for the NSA declaring systems to be totally out of control, requiring immediate corrective action. I believe the NSA had reached that point on upstream searches at least by 2015. But it kept doing prohibited back door searches (which Collyer, because she’s the worst presiding FISC judge in recent memory, retroactively blessed) on abouts collection for another two years before the front end of about collection was shut down.

So perhaps the problem isn’t a lack of candor? Perhaps the problem is NSA can continue spying on entirely domestic communications for two years after identifying the problem before any fix is put in place?

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James Clapper: Unmasking And/Or Jeff Sessions?

I’m traveling so I’ll have to lay out my thoughts about the Comey firing later.

But for the moment I want to point to a detail in Monday’s hearing that deserves more attention now.

Early in the hearing, Chuck Grassley asked both Sally Yates and James Clapper if they have ever unmasked a Trump associate or member of Congress. Yates said no, but Clapper revealed he had unmasked someone, but couldn’t say more.

GRASSLEY: OK. I want to discuss unmasking.

Mr. Clapper and Ms. Yates, did either of you ever request the unmasking of Mr. Trump, his associates or any member of Congress?

CLAPPER: Yes, in one case I did that I can specifically recall, but I can’t discuss it any further than that.

GRASSLEY: You can’t, so if I ask you for details, you said you can’t discuss that, is that what you said?

CLAPPER: Not — not here.

Grassley returned to the issue for clarification later on. Clapper said he had asked to have the identity of both a member of Congress and a Trump associate unmasked. But then he said he had only asked on one occasion.

GRASSLEY: Mr. Clapper, you said yes when I asked you if you ever unmasked a Trump associate or a member of Congress. But I forgot to ask, which was it? Was it a Trump associate, a member of Congress, or both?

CLAPPER: Over my time as DNI, I think the answer was on rare occasion, both. And, again, Senator, just to make the point here, my focus was on the foreign target and at the foreign target’s behavior in relation to the U.S. person.

GRASSLEY: OK. How many instances were there, or was there just one?

CLAPPER: I can only recall one.

Finally, Lindsey Graham returned to the issue at the close of the hearing. Clapper confirmed he had made a request to unmask a Trump associate and a member of Congress.

You made a request for unmasking on a Trump associate and maybe a member of Congress? Is that right, Mr. Clapper?

CLAPPER: Yes.

Obviously, there’s plenty of room for confusion in these exchanges, and Clapper has a history of sowing confusion in Congressional testimony.

But if it is true that he has only unmasked one person but that he has unmasked both a Trump associate and a member of Congress, it would suggest he unmasked the identity of a member of Congress who is a Trump associate.

If that’s right, there are several possibilities for who it could be: transition official Devin Nunes, national security advisor Richard Burr, and national security official Jeff Sessions.

But the most likely is Sessions, because we know he was talking to Sergey Kislyak and the intelligence community has pulled their collection on Kislyak.

Even if that’s the case, it’s unsurprising Sessions’ communications with Kislyak have been reviewed and unmasked.

Still, it is a data point from Monday’s hearing that makes Sessions’ role in the firing of Jim Comey worth noting.

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One Takeaway from the Five Takeaways from the Comey Hearing: Election 2016 Continues to Suffocate Oversight

The Senate Judiciary Committee had an oversight hearing with Jim Comey yesterday, which I live-tweeted in great depth. As you can imagine, most of the questions pertained either to Comey’s handing of the Hillary investigation and/or to the investigation into Russian interference in the election. So much so that The Hill, in its “Five Takeaways from Comey’s testimony,” described only things that had to do with the election:

  • Comey isn’t sorry (but he was “mildly nauseous” that his conduct may have affected the outcome)
  • Emotions over the election are still raw
  • Comey explains DOJ dynamic: “I hope someday you’ll understand”
  • The FBI may be investigating internal leaks
  • Trump, Clinton investigations are dominating FBI oversight

The Hill’s description of that third bullet doesn’t even include the “news” from Comey’s statement: that there is some still-classified detail, in addition to Loretta Lynch’s tarmac meeting with Bill Clinton and the intercepted Hillary aide email saying Lynch would make sure nothing happened with the investigation, that led Comey to believe he had to take the lead on the non-indictment in July.

I struggled as we got closer to the end of it with the — a number things had gone on, some of which I can’t talk about yet, that made me worry that the department leadership could not credibly complete the investigation and declined prosecution without grievous damage to the American people’s confidence in the — in the justice system.

As I said, it is true that most questions pertained to Hillary’s emails or Russia. Still, reports like this, read primarily by people on the Hill, has the effect of self-fulfilling prophecy by obscuring what little real oversight happened. So here’s my list of five pieces of actual oversight that happened.

Neither Grassley nor Feinstein understand how FISA back door searches work

While they primarily focused on the import of reauthorizing Section 702 (and pretended that there were no interim options between clean reauthorization and a lapse), SJC Chair Chuck Grassley and SJC Ranking Member Dianne Feinstein both said things that made it clear they didn’t understand how FISA back door searches work.

At one point, in a discussion of the leaks about Mike Flynn’s conversation with Sergey Kislyak, Grassley tried to suggest that only a few people at FBI would have access to the unmasked identity in those intercepts.

There are several senior FBI officials who would’ve had access to the classified information that was leaked, including yourself and the deputy director.

He appeared unaware that as soon as the FBI started focusing on either Kislyak or Flynn, a back door search on the FISA content would return those conversations in unmasked form, which would mean a significant number of FBI Agents (and anyone else on that task force) would have access to the information that was leaked.

Likewise, at one point Feinstein was leading Comey through a discussion of why they needed to have easy back door access to communication content collected without a warrant (so we don’t stovepipe anything, Comey said), she said, “so you are not unmasking the data,” as if data obtained through a back door search would be masked, which genuinely (and rightly) confused Comey.

FEINSTEIN: So you are not masking the data — unmasking the data?

COMEY: I’m not sure what that means in this context.

It’s raw data. It would not be masked. That Feinstein, who has been a chief overseer of this program for the entire time back door searches were permitted doesn’t know this, that she repeatedly led the effort to defeat efforts to close the back door loophole, and that she doesn’t know what it means that this is raw data is unbelievably damning.

Incidentally, as part of the exchange wit Feinstein, Comey said the FISA data sits in a cloud type environment.

Comey claims the government doesn’t need the foreign government certificate except to target spies

Several hours into the hearing, Mike Lee asked some questions about surveillance. In particular, he asked if the targeting certificates for 702 ever targeted someone abroad for purposes unrelated to national security. Comey seemingly listed off the certificates we do have — foreign government, counterterrorism, and counterproliferation, noting that cyber gets worked into other ones.

LEE: Yes. Let’s talk about Section 702, for a minute. Section 702 of the Foreign Intelligence Surveillance Amendments Act authorizes the surveillance, the use of U.S. signals surveillance equipment to obtain foreign intelligence information.

The definition includes information that is directly related to national security, but it also includes quote, “information that is relevant to the foreign affairs of the United States,” close quote, regardless of whether that foreign affairs related information is relevant to a national security threat. To your knowledge, has the attorney general or has the DNI ever used Section 702 to target individuals abroad in a situation unrelated to a national security threat?

COMEY: Not that I’m aware of. I think — I could be wrong, but I don’t think so, I think it’s confined to counterterrorism to espionage, to counter proliferation. And — those — those are the buckets. I was going to say cyber but cyber is fits within…

He said they don’t need any FG information except that which targets diplomats and spies.

LEE: Right. So if Section 702 were narrowed to exclude such information, to exclude information that is relevant to foreign affairs, but not relevant to a national security threat, would that mean that the government would be able to obtain the information it needs in order to protect national security?

COMEY: Would seem so logically. I mean to me, the value of 702 is — is exactly that, where the rubber hits the road in the national security context, especially counterterrorism, counter proliferation.

I assume that Comey said this because the FBI doesn’t get all the other FG-collected stuff in raw form and so isn’t as aware that it exists. I assume that CIA and NSA, which presumably use this raw data far more than FBI, will find a way to push back on this claim.

But for now, we have the FBI Director stating that we could limit 702 collection to national security functions, a limitation that was defeated in 2008.

Comey says FBI only needs top level URLs for ECTR searches

In another exchange, Lee asked Comey about the FBI’s continued push to be able to get Electronic Communication Transaction Records. Specifically, he noted that being able to get URLs means being able to find out what someone was reading.

In response, Comey said he thought they could only get the top-level URL.

After some confusion that revealed Comey’s lie about the exclusion of ECTRs from NSLs being just a typo, Comey said FBI did not need any more than the top domain, and Lee answered that the current bill would permit more than that.

LEE: Yes. Based on the legislation that I’ve reviewed, it’s not my recollection that that is the case. Now, what — what I’ve been told is that — it would not necessarily be the policy of the government to use it, to go to that level of granularity. But that the language itself would allow it, is that inconsistent with your understanding?

COMEY: It is and my understanding is we — we’re not looking for that authority.

LEE: You don’t want that authority…

(CROSSTALK)

COMEY: That’s my understanding. What — what we’d like is, the functional equivalent of the dialing information, where you — the address you e-mailed to or the — or the webpage you went to, not where you went within it.

This exchange should be useful for limiting any ECTR provision gets rushed through to what FBI claims it needs.

The publication of (US) intelligence information counts as intelligence porn and therefore not journalism

Ben Sasse asked Comey about the discussion of indicting Wikileaks. Comey’s first refusal to answer whether DOJ would indict Wikileaks led me to believe they already had.

I don’t want to confirm whether or not there are charges pending. He hasn’t been apprehended because he’s inside the Ecuadorian embassy in London.

But as part of that discussion, Comey explained that Wikileaks’ publication of loads of classified materials amounted to intelligence porn, which therefore (particularly since Wikileaks didn’t call the IC for comment first, even though they have in the past) meant they weren’t journalism.

COMEY: Yes and again, I want to be careful that I don’t prejudice any future proceeding. It’s an important question, because all of us care deeply about the First Amendment and the ability of a free press, to get information about our work and — and publish it.

To my mind, it crosses a line when it moves from being about trying to educate a public and instead just becomes about intelligence porn, frankly. Just pushing out information about sources and methods without regard to interest, without regard to the First Amendment values that normally underlie press reporting.

[snip]

[I]n my view, a huge portion of WikiLeaks’s activities has nothing to do with legitimate newsgathering, informing the public, commenting on important public controversies, but is simply about releasing classified information to damage the United States of America. And — and — and people sometimes get cynical about journalists.

American journalists do not do that. They will almost always call us before they publish classified information and say, is there anything about this that’s going to put lives in danger, that’s going to jeopardize government people, military people or — or innocent civilians anywhere in the world.

I’ll write about this more at length.

Relatedly (though technically a Russian investigation detail), Comey revealed that the investigation into Trump ties to Russia is being done at Main Justice and EDVA.

COMEY: Yes, well — two sets of prosecutors, the Main Justice the National Security Division and the Eastern District of Virginia U.S. Attorney’s Office.

That makes Dana Boente’s role, first as Acting Attorney General for the Russian investigation and now the Acting Assistant Attorney General for National Security, all the more interesting, as it means he is the person who can make key approvals related to the investigation.

I don’t have any problem with him being chosen for these acting roles. But I think it supremely unwise to effectively eliminate levels of oversight on these sensitive cases (Russia and Wikileaks) by making the US Attorney already overseeing them also the guys who oversees his own oversight of them.

The US is on its way to becoming the last haven of shell corporations

Okay, technically these were Sheldon Whitehouse and Amy Klobuchar comments about Russia. But as part of a (typically prosecutorial) line of questioning about things related to the Russian investigation, Whitehouse got Comey to acknowledge that as the EU tries to crack down on shell companies, that increasingly leaves the US as the remaining haven for shell companies that can hide who is paying for things like election hacks.

WHITEHOUSE: And lastly, the European Union is moving towards requiring transparency of incorporations so that shell corporations are harder to create. That risks leaving the United States as the last big haven for shell corporations. Is it true that shell corporations are often used as a device for criminal money laundering?

COMEY: Yes.

[snip]

WHITEHOUSE: What do you think the hazards are for the United States with respect to election interference of continuing to maintain a system in which shell corporations — that you never know who’s really behind them are common place?

COMEY: I suppose one risk is it makes it easier for illicit money to make its way into a political environment.

WHITEHOUSE: And that’s not a good thing.

COMEY: I don’t think it is.

And Klobuchar addressed the point specifically as it relates to high end real estate (not mentioning that both Trump and Paul Manafort have been alleged to be involved in such transactions).

There have been recent concerns that organized criminals, including Russians, are using the luxury real estate market to launder money. The Treasury Department has noted a significant rise in the use of shell companies in real estate transactions, because foreign buyers use them as a way to hide their identity and find a safe haven for their money in the U.S. In fact, nearly half of all homes in the U.S. worth at least $5 million are purchased using shell companies.

Does the anonymity associated with the use of shell companies to buy real estate hurt the FBI’s ability to trace the flow of illicit money and fight organized crime? And do you support efforts by the Treasury Department to use its existing authority to require more transparency in these transactions?

COMEY: Yes and yes.

It’s a real problem, and not just because of the way it facilitates election hacks, and it’d be nice if Congress would fix it.

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