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Dear JD Gordon [and Jared]: Mueller Has 17 Prosecutors; White House Obstruction Accounts for Just One

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The WaPo has a piece reporting (with details about John Kelly’s “collusion” with Attorney General Jeff Sessions, who is supposed to be recused) what I noted here: Trump wants the Devin Nunes memo to come out, even in spite of the warnings about how releasing it will damage national security.

It rather absurdly claims that Mueller is “narrowing” his probe.

As Mueller narrows his probe — homing in on the ways Trump may have tried to impede the Russia investigation — a common thread ties many of the incidents together: a president accustomed to functioning as the executive of a private family business who does not seem to understand that his subordinates have sworn an oath to the Constitution rather than to him.

More amusing is this anonymous quote from JD Gordon.

A person who has spoken with Mueller’s team said investigators’ questions seemed at least partially designed to probe potential obstruction from Trump.

“The questions are about who was where in every meeting, what happened before and after, what the president was saying as he made decisions,” this person said, speaking on the condition of anonymity to recount a private session.

This person added that while it seemed unlikely Mueller’s team would yield any evidence of a coordinated effort to aid the Russians — “If you were on the campaign, you know we couldn’t even collude with ourselves,” he said — the investigators might find more details to support obstruction of justice. [my emphasis]

We know it was JD Gordon because he said precisely the same thing in an op-ed just after the George Papadopoulos plea made it clear Gordon and his buddies might be in a heap of trouble.

Trump camp too disorganized to collude

Criminalization of policy differences has descended upon America once again. The viciousness towards a sitting president and his team evokes memories of Bill Clinton’s 1998 impeachment. In the “witch hunt” Clinton was impeached for something unrelated to the Arkansas real estate deal which sparked the Whitewater investigation years earlier. Like a Soviet secret police chief once said: “Show me the man and I’ll find you the crime.” Indeed.

We’re seeing the same thing today. The Trump-Russia collusion story is a hoax and “witch hunt” of this century.

Like typical conspiracy theories, usually the simplest explanation is correct. The campaign was chaotic, understaffed and underpaid, if paid at all. We couldn’t collude amongst ourselves. [my emphasis]

Since JD Gordon is — by his own account — incompetent, I’m going to repeat the substance of this post I did even as he first rolled out this line, just to help him out.

Update: I’ve been informed that Jared Kushner has also used this “we couldn’t collude because we’re too incompetent” line, so perhaps he’s the one who believes he’s not at risk for engaging in a quid pro quo with Russians and others. 

Robert Mueller has 17 prosecutors. We’ve only seen what 10 of them are doing. And just one of them — Watergate prosecutor James Quarles — is known to be working on the White House obstruction case.

Here’s a census of Mueller’s prosecutors who’ve thus far shown what they’re working on:

Manafort docket:

  • Andrew Weismann (1)
  • Greg Andres (2)
  • Kyle Freeny (3)

Adam Jed (4), an appellate specialist, has appeared with these lawyers in grand jury appearances.

Papadopoulos docket:

  • Jeannie Rhee (5)
  • Andrew Goldstein (6)
  • Aaron Zelinsky (7)

Flynn docket:

  • Brandon L. Van Grack (8)
  • Zainab Ahmad (9)

Obstruction docket:

Even in these dockets, it’s clear Mueller is nowhere near done.

Flynn may have a status hearing scheduled for Thursday (though it’s not formally noted in the docket). I suspect, instead, we’ll get a joint status report like was submitted in Papadopoulos’ case on January 17, which basically said, “we’re very busy cooperating, don’t bug us until April 23.”

And CNN just reported that Mueller’s team has drafted superseding indictments against Paul Manafort and Rick Gates, and Gates appears to be prepping to flip.

Former Trump campaign aide Rick Gates has quietly added a prominent white-collar attorney, Tom Green, to his defense team, signaling that Gates’ approach to his not-guilty plea could be changing behind the scenes.

Green, a well-known Washington defense lawyer, was seen at special counsel Robert Mueller’s office twice last week. CNN is told by a source familiar with the matter that Green has joined Gates’ team.

Green isn’t listed in the court record as a lawyer in the case and works for a large law firm separate from Gates’ primary lawyers.

Green’s involvement suggests that there is an ongoing negotiation between the defendant’s team and the prosecutors.

[snip]

Superseding indictments, which would add or replace charges against both Gates and Manafort, have been prepared, according to a source close to the investigation. No additional charges have been filed so far. When there is a delay in filing charges after they’ve been prepared, it can indicate that negotiations of some nature are ongoing.

So even where we have some visibility, that visibility suggests there is plenty of work trying to see if there was any conspiracy tied to the election.

That leaves the following prosecutors, listed with their specialities:

  • Aaron Zebley (11): probably working on coordination
  • Michael Dreeben (12): appellate wizard
  • Elizabeth Prelogar (13): appellate specialist and Russian speaker
  • Scott Meisler (14): appellate specialist
  • Rush Atkinson (15): fraud prosecutor
  • Ryan Dickey (16): Cybersecurity (just added in November)
  • Mystery prosecutor (17)

I mean, Mueller hasn’t even revealed all his prosecutors yet, much less what they’re all working on.

But JD Gordon would have you believe the prosecutors’ attention to what meetings he and his buddies were in means Mueller is only investigating obstruction.

Feinstein’s Homework Assignments

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While Devin Nunes has been getting all the headlines for trying to muck up the Mueller investigation, Chuck Grassley and Dianne Feinstein are increasingly at odds, as well. First there was the Grassley-Lindsey Graham bogus referral of Christopher Steele (I say it’s bogus not because I doubt his sworn statements have been inconsistent — they have been — but because FBI doesn’t need a referral for statements made to FBI itself). Then Feinstein released, and then apologized for, releasing the Glenn Simpson transcript. Grassley used that to invent the story that Jared Kushner was spooked and so wouldn’t sit for an interview with the Senate Judiciary Committee (we know that’s bullshit because Kushner released his own statement before giving it to the Senate Intelligence Committee, which “spooked” Richard Burr). Still, in response to a Sheldon Whitehouse and Richard Blumenthal request that Don Jr’s transcript be shared with FBI (because he likely lied in it), Grassley suggested he’d release the transcripts of all the interviews pertaining to the June 9 meeting.

So now both are continuing to collect evidence on their own, at least in part to generate headlines rather than investigative leads. But the most recent requests, both sent out yesterday, provide some insight into what they believe might have happened and what they know (or still don’t know).

In this post, I’ll look at whom Feinstein is requesting information from. In a follow-up I’ll comment on Grassley’s latest request.

Who Feinstein wants to talk to and who represents them

Some of Feinstein’s requests are immediately understandable, including the following people (thoughout this post, I’ve noted the lawyer’s name if the letter was sent to one):

As for the others, the explanation for why the Committee is seeking information explains any connection understood to the investigation. Most of this is open source information to footnoted reporting (click through to see those sources). Where that’s not the case, I’ve bolded it, as that presumably reflects still classified information the Committee received.

Michael Caputo (Dennis Vacco):

You joined the presidential campaign of Donald Trump as a communications advisor upon the recommendation of Paul Manafort, and it has been reported you have close ties to campaign advisor Roger Stone. It also has been reported that you have deep ties to Russia, including having worked for the Kremlin and Russian energy conglomerate Gazprom.

Paul Erickson (sent to him directly):

In May 2016, you were involved in efforts to broker a meeting between Alexander Torshin — someone you described as “President Putin’s emissary” — and top officials for the Trump campaign. In your communications with the Trump campaign about this meeting, you said that you had been “cultivating a back-channel to President Putin’s Kremlin” and that the “Kremlin believes htat the only possibility of a true reset in this relationship would be with a new Republican White House.”

Robert Foresman (sent to him directly):

As a long-time investment banker in Russia, you have developed relationships with senior Kremlin officials and have expressed your passion for private diplomacy to help foster improved U.S.-Russia relations. The Committee has reason to believe you sought to engage the Trump campaign in discussions concerning outreach from senior Kremlin officials.

Rhona Graff (Alan Futerfas, who is also representing Don Jr):

As a senior vice president in the Trump Organization and longtime assistant to Donald Trump, you are likely familiar with the President’s communications and schedule, particularly during the 2016 presidential campaign. For example, Roger Stone and Paul Manafort, [sic] have said they contact you to get access to President Trump. And when Rob Goldstone emailed Donald Trump Jr. about setting up the June 9, 2016 meeting between the Trump campaign and a Russian lawyer, he noted, “I can also send this info to your father via Rhona, but it is ultra sensitive so wanted to send to you first.”

Philip Griffin (sent directly to his email):

You have been a longstanding associate of former Trump campaign manager Paul Manafort and served, reportedly at his request, as an advisor to the Trump campaign during the Republican National Convention in Cleveland in July 2016.

[snip]

You have been a longtime of [sic] associate of Manafort, and you hired Konstantin Kiliminik [sic] to work with you and Manafort in Ukraine. In 2014, you were named in a lawsuit filed by Russian oligarch Oleg Deripaska as a “ley” partner, along with Manafort, Gates, and Kilimnik, in an investment fund that Deripaska contends stole nearly $19 million from him. In 2016, while Manafort was serving as the Trump campaign manager, Kilimnik reportedly emailed Manafort about reporting on Manafort’s role in the campaign with Deripaska, which Manafort suggested might be used to “get whole.”

David Keene (sent directly to him):

In spring 2016, Russian banker Alexander Torshin and Russian national Maria Butina were reportedly involved in efforts to arrange a meeting between Mr. Torshin and then-candidate Donald Trump or his campaign. Mr. Torshin is a “senior Russian official who claimed to be acting at the behest of President Vladimir V. Putin of Russia.” Ms. Butina is the founder of the Russian group known as the Right to Bear Arms and has described herself as a “representative of the Russian Federation” and a “connection between Team Trump and Russia.” You reportedly were introduced to Mr. Torshin in 2011, and were invited by Mr. Torshin and Ms. Butina to speak at the 2013 annual meeting in Moscow for the Right to Bear Arms. Ms. Butina was your guest at the NRA’s 2014 annual meeting, and you traveled along with Trump campaign surrogate Sheriff David Clarke to Moscow in December 2015 for another meeting with Ms. Butina’s organization.

Joseph Keith Kellogg, Jr. (sent directly to him):

As a member of the Trump campaign’s foreign policy team, you worked alongside George Papadopoulos and Carter Page, both of whom had multiple contacts with Russian officials (or their surrogates) that they reported back to the campaign. You also worked on the Trump transition team before joining the National Security Council and served as Chief of Staff under Lt. General Michael Flynn until his removal.

[snip]

You served as Chief of Staff on the National Security Council during the period when General Flynn lied to administration officials about his Russian contacts. It has been reported that, once the White House learned of those lies from Acting Attorney General Sally Yates, you started participating in the President’s daily security briefings, and — once General Flynn was removed — you served as the President’s interim national security advisor.

John Mashburn (sent to him at the White House):

As the Trump campaign policy director, you worked alongside members of the foreign policy team who had multiple contacts with Russian officials (or their surrogates). For example, Rick Dearborn, another senior policy aide, who reportedly shared a May 2016 request from Alexander Torshin, a senior Russian official with close ties to Vladimir Putin, to meet then-candidate Trump or other top campaign officials at the National Rifle Association’s 2016 annual convention. It also has been reported that JD Gordon informed you about pro-Russian changes to the Republican party platform that were championed by the Trump campaign. You role as senior advisor on the transition team, and now White House Deputy Cabinet Secretary, also has given you a firsthand look at other significant events affecting the Trump administration, including the removals of National Security Advisor Michael Flynn and FBI Director James Comey.

Frank Mermoud (sent via email directly to him):

You served as an advisor to the Trump campaign during the Republican National Convention in Cleveland in July 2016, running the program for ambassadors and foreign delegations — a post that you reportedly held at the recommendation of former Trump campaign manager Paul Manafort. Because of your role at the convention, longstanding relationship with Mr. Manafort, and deep business ties to Ukraine,

Amanda Miller (Alan Futerfas, who also represents Don Jr):

As a vice president for marketing at the Trump Organization, you are likely intimately familiar with President Donald Trump and the inner workings of the Trump Organization. For example, you have made public statements on behalf of the Trump Organization regarding the Trump Organization’s efforts to build a Trump Tower in Moscow. In addition, the Committee has reason to believe that you may have information on other Trump business ties to Russia.

Feinstein wants to know who lied to David Ignatius

In general, the items requested are not the surprising. I am, however, interested that Kellogg, Miller, and Spicer were asked about,

All communications concerning the story written by David Ignatius that appeared in the Washington Post on January 12, 2017, titled, “Why did Obama dawdle on Russia’s hacking?“

Note, before the story, the transition team did not comment, but after it revealed that Flynn had phoned Sergei Kislyak several times on December 29, two aides called Ignatius and told what we now know are lies.

The Trump transition team did not respond Thursday night to a request for comment. But two team members called with information Friday morning. A first Trump official confirmed that Flynn had spoken with Kislyak by phone, but said the calls were before sanctions were announced and didn’t cover that topic. This official later added that Flynn’s initial call was to express condolences to Kislyak after the terrorist killing of the Russian ambassador to Ankara Dec. 19, and that Flynn made a second call Dec. 28 to express condolences for the shoot-down of a Russian plane carrying a choir to Syria. In that second call, Flynn also discussed plans for a Trump-Putin conversation sometime after the inauguration. In addition, a second Trump official said the Dec. 28 call included an invitation from Kislyak for a Trump administration official to visit Kazakhstan for a conference in late January.

Burck’s clients get different treatment

Also as I noted above, Feinstein staff treated the letter to the two William Burck clients differently. Bannon’s was sent to him, but care of Burck.

But McGahn’s was addressed to Burck.

Unless I missed it, McGahn’s is the only letter treated this way. Which is one reason I suspect the blizzard of stories about what a hero McGahn was in June after he had done clearly obstructive things in May and earlier may have more to do with McGahn’s legal jeopardy than Trump’s.

Update: This Politico piece (h/t PINC) says that McGahn hired Burck last May, right after he had done some really stupid things with respect to the Jim Comey firing.

McGahn came calling in May amid the fallout from Trump’s decision to fire Comey from his post as FBI director — an explosive move that prompted Mueller’s appointment.

The Increasing Panic Surrounding Devin Nunes’ “Extraordinarily Reckless” Plan to Release Memo

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I thought I’d chronicle the increasingly senior panic surrounding Devin Nunes’ plan — reportedly backed by Trump — to release the Nunes memo without first letting FBI and DOJ review it. Clearly, there’s concern this will burn underlying sources for the FISA application(s) described in the report. I don’t rule our the belated revelation of something I’ve been hearing for at least six months — that the Dutch passed on intelligence in real time of APT 29 hacking US targets and had an inside view of the operations — isn’t meant as a warning of what will happen if the US further burns the Dutch.

I’m also interested in AAG Stephen Boyd’s emphasis that Nunes delegated his review of these documents to Trey Gowdy, perhaps suggesting both will have some kind of liability for any damage that will result from this game of telephone.

Sunday, January 21: FBI denied a copy of Nunes’ memo.

“The FBI has requested to receive a copy of the memo in order to evaluate the information and take appropriate steps if necessary. To date, the request has been declined,” said Andrew Ames, a spokesperson for the FBI.

Wednesday, January 24: Richard Burr’s Senate Intelligence Committee staffers denied a copy of the memo.

Senate Intelligence Committee Chairman Richard Burr’s staff has not been given access to a classified memo drafted by House Intelligence Committee Chairman Devin Nunes, a sign of how closely House Republicans are guarding allegations of Justice Department wrongdoing over surveillance activities in the Russia investigation.

According to three sources familiar with the matter, Burr’s staff requested a copy of the memo and has been denied, just as the FBI and Justice Department have also been denied reviewing a copy of the document.

Wednesday, January 24: Trump’s Assistant Attorney General for Legislative Affairs Stephen Boyd writes letter noting that releasing memo will violate agreement.

Recent news reports indicate a classified memorandum prepared by House Permanent Select Committee on Intelligence (HPSCI or Committee) staff alleges abuses at the Department of Justice (Department) and the Federal Bureau of Investigation (FBI) in the FISA process. We understand many members of the House of Representatives have views this memorandum and that it has raised concerns.

As you know, we have provided HPSCI with more than 1,000 pages of classified documents relating to the FBI’s relationship, if any, with a source and its reliance, if any, on information provided by that source. Media reports indicate that the Committee’s memorandum contains highly classified material confidentially provided by the Department to the Committee in a secure facility.1

[snip]

In addition, we have also heard that HPSCI is considering making the classified memorandum available to the public and the media, an unprecedented action. We believe it would be extraordinarily reckless for the Committee to disclose such information publicly without giving the Department and the FBI the opportunity to review the memorandum and to advise the HPSCI of the risk of harm to national security and to ongoing investigations that could come from public release. Indeed, we do not understand why the Committee would possibly seek to disclose classified and law enforcement sensitive information without first consulting with the relevant members of the Intelligence Community.

Seeking Committee approval of public release would require HPSCI committee members to vote on a staff-drafted memorandum that purports to be based on classified source materials that neither you nor most of them have seen. Given HPSCI’s important role in overseeing the nation’s intelligence community, you well understand the damaging impact that the release of classified material could have on our national security and our ability to share and receive sensitive information from friendly foreign governments.

[snip]

Additionally, we believe that wider distribution of the classified information presumably contained within your memorandum would represent a significant deviation from the terms of access granted in good faith by the Department, HPSCI, and the Office of Speaker Paul Ryan.

The Department renews its request — as previously made in a personal appeal by the Director of the FBI — for an opportunity to review the memorandum in question so that it may respond to the Committee before any vote on public release.

1 To date, the Department has provided detailed briefings and made available to HPSCI documents requested as part of its investigation into Russian influence in the 2016 election. The terms of access stipulated that review of the documents would be limited to the Chairman or his designee, the Ranking Member or his designee, and two staff members each. (Mr. Gowdy reviewed the documents for the majority. Mr. Schiff reviewed the documents for the minority.) Other committees of jurisdiction — the Senate Select Committee on Intelligence, the Senate Committee on the Judiciary, and the House Committee on the Judiciary — have accepted similar procedural safeguards to protect against improper dissemination of information.

Thursday, January 25: DOJ spox (and close Jeff Sessions ally) Sarah Isgur Flores goes on Fox to argue DOJ should get to look at the memo first,

Let us see it first. At this point, nobody in the Senate or the White House or the Department of Justice or FBI has seen this document, and a number of Congressmen have expressed a lot of concern about it. So we would like to see it. Well, I think we’d certainly want to see any evidence of wrong-doing and take action upon that if there is wrong-doing going on. And then, I think we’d want to discuss, I mean, this is classified material for a reason. It has national security implications. It may have implications for our allies or others in the intelligence community.

Thursday, January 25: Majority Whip and SSCI member John Cornyn says Nunes should let DOJ review the memo.

Cornyn, who has been briefed on Nunes memo, suggests Nunes should listen to DOJ concerns. “We all should pay attention to what the Justice Department’s concerns are, and I’m sure the chairman will. It’s always good when we communicate and consult with one another,” he told me

Thursday, January 25: James Lankford says Nunes should follow “proper declassification procedures.”

Update: First, I fixed the dates.

Second, I wasn’t aware of this statement from Paul Ryan’s spox, sometime in the last day. (h/t Maestro)

A spokesman for Ryan pushed back at the DOJ’s characterization of the negotiations.

“As previously reported, the speaker’s only message to the Department was that it needed to comply with oversight requests and there were no terms set for its compliance,” Doug Andres, the spokesman, said in a statement.

This is fairly breathtaking, as it suggests Ryan (and by association Nunes) are not agreeing to abide by any of the security precautions imposed on the access to highly sensitive case files Nunes obtained.

Steve King Just Voted to Subject Americans to “Worse than Watergate”

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Devin Nunes has launched the next installment of his effort to undercut the Mueller investigation, a “Top Secret” four page report based on his staffers’ review of all the investigative files they got to see back on January 5. He then showed it to a bunch of hack Republicans, who ran to the right wing press to give alarmist quotes about the report (few, if any, have seen the underlying FBI materials).

Mark Meadows (who recently called for Jeff Sessions’ firing as part of this obstruction effort) said, “Part of me wishes that I didn’t read it because I don’t want to believe that those kinds of things could be happening in this country that I call home and love so much.”

Matt Gaetz (who strategized with Trump on how to undercut the Mueller investigation on a recent flight on Air Force One) said, “The facts contained in this memo are jaw-dropping and demand full transparency. There is no higher priority than the release of this information to preserve our democracy.”

Ron DeSantis (who joined Gaetz in that Air Force One strategy session with Trump and also benefitted directly from documents stolen by the Russians) said it was “deeply troubling and raises serious questions about the [the people in the] upper echelon of the Obama DOJ and Comey FBI,” who of course largely remain in place in the Sessions DOJ and Wray FBI.

Steve King claimed what he saw was, “worse than Watergate.” “Is this happening in America or is this the KGB?” Scott Perry said. Jim Jordan (who joined in Meadows’ effort to fire Sessions) said, “It is so alarming.” Lee Zeldin said the FBI, in using FISA orders against Russians and facilities used by suspected agents of Russia was relying “on bad sources & methods.”

It all makes for very good theater. But not a single one of these alarmists voted the way you’d expect on last week’s 702 reauthorization votes if they were really gravely concerned about the power of the FBI to spy on Americans.

Indeed, Gaetz, DeSantis, and King — three of those squawking the loudest — voted to give the same FBI they’re claiming is rife with abuse more power to spy on Americans, including political dissidents. Nunes, who wrote this alarming report, also wrote the bill to expand the power of the FBI he’s now pretending is badly abusive.

Even those who voted in favor of the Amash-Lofgren amendment and against final reauthorization — Meadows, Jordan, and Perry, among some of those engaging in this political stunt — voted against the Democratic motion to recommit, which would have at least bought more time and minimally improved the underlying bill (Justin Amash and Tom Massie, both real libertarians, voted with Democrats on the motion to recommit). Zeldin was among those who flipped his vote, backing the bill that will give the FBI more power after making a show of supporting Amash’s far better bill.

In short, not a single one of these men screaming about abuse at the FBI did everything they could do to prevent the FBI from getting more power.

Which — if you didn’t already need proof — shows what a hack stunt this is.

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

What HPSCI Wants to Protect in 702: Back Doors, the Tor Exception, and a Dysfunctional FISC

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The House is revving up to vote on 702 reauthorization, offering either the shitty bill drafted by Devin Nunes, Adam Schiff, and Devin Nunes or the Amash amendment (which is the Wyden-Paul USA Rights bill). As I noted in a piece at The New Republic,

Congress is, in an apparently serious attempt at surveillance reform, about to make it easier for the FBI to spy on those whom it has zero evidence of wrongdoing than those whom it has probable cause to suspect of illegal behavior. This bill would protect a very small subset of suspected criminals—perhaps just one a year, based on reporting from 2016. But it would do nothing to prevent the FBI from reading the communications of any innocent American who is named in a tip.

HPSCI has come out with a one pager making shite up about USA Rights. And I’m interested in three things HPSCI prioritizes:

  • Ensuring that NSA can order companies to bypass encryption
  • Sustaining the Tor domestic spying exception
  • Coddling the dysfunction of the FISA Court

Ensuring that NSA can order companies to bypass encryption

The HPSCI flyer complains that USA Rights,

Significantly limit[s] the Government’s ability to obtain Section 702 information on foreign terrorists by unnecessarily restricting when the Government may ask for technical assistance from electronic communication service providers;

At issue is language in USA Rights that limits government requests for technical assistance to things that are necessary, narrowly tailored, and would not pose an undue burden.

(B) LIMITATIONS.—The Attorney General or the Director of National Intelligence may not request assistance from an electronic communication service provider under subparagraph (A) without demonstrating, to the satisfaction of the Court, that the assistance sought—

(i) is necessary;

(ii) is narrowly tailored to the surveillance at issue; and

(iii) would not pose an undue burden on the electronic communication service provider or its customers who are not an intended target of the surveillance.

It is clear this is Wyden’s effort to prohibit the government from using individual directives (which are not reviewed by the FISA Court) to back door or circumvent a company’s encryption. While the government says it has not yet asked the FISC to force companies to do this (which is different from saying they haven’t asked and gotten companies to willingly do so), it has dodged whether it has asked companies to circumvent their own encryption.

So basically, one of the big things HPSCI thinks is wrong with USA Rights is that it won’t let NSA back door your phone.

Sustaining the Tor domestic spying exception

The HPSCI flyer claims that USA Rights,

Mandat[es] a flat prohibition on the use of Section 702 information in prosecuting dangerous criminals, including murderers and child abusers;

That flips reality on its head. What HPSCI is trying to protect, here, is its carve-out permitting the use of 702 information for anything that,

“Affects, involves, or is related to” the national security of the United States (which will include proceedings used to flip informants on top of whatever terrorism, proliferation, or espionage and hacking crimes that would more directly fall under national security) or involves,

  • Death
  • Kidnapping
  • Serious bodily injury
  • Specified offense against a minor
  • Incapacitation or destruction of critical infrastructure (critical infrastructure can include even campgrounds!)
  • Cybersecurity, including violations of CFAA
  • Transnational crime, including transnational narcotics trafficking
  • Human trafficking (which, especially dissociated from transnational crime, is often used as a ploy to prosecute prostitution; the government also includes assisting undocumented migration to be human trafficking)

[snip]

Importantly, the bill does not permit judicial review on whether the determination that something “affects, involves, or is related to” national security. Meaning Attorney General Jeff Sessions could decide tomorrow that it can collect the Tor traffic of BLM or BDS activists, and no judge can rule that’s an inappropriate use of a foreign intelligence program.

As I have noted, the carve out, taken in conjunction with the 2014 exception letting the NSA collect on location obscuring servers (like VPNs and Tor) used by Americans, effectively makes 702 a domestic spying bill (on top of permitting its use for anything else Jeff Sessions claims is related to national security).

In other words, HPSCI doesn’t so much want 702 to spy on the terrorists, spies, and proliferators included in USA Rights: it wants to spy domestically.

Coddling the dysfunction of the FISA Court

Finally, the HPSCI flyer complains that USA Freedom,

Subvert[s] the authority and expediency of the Foreign Intelligence Surveillance Court by requiring an amicus review during every Section 702 authorization; and

This is a complaint about a number of common sense measures that make the FISA Court more credible, most notably requiring each 702 authorization to include an amicus review. The bill also includes measures to make the amicus review more robust, like enough advance involvement to be useful.

For a body of Congress to guard “the authority and expediency” of the FISC — especially in the wake of last year’s debacle of a ruling from Rosemary Collyer, who stubbornly refused to follow the law and either appoint an amicus or explain why she chose not to do so, is an outright abdication of congressional authority.

The FISC just defied Congressional intent as reflected in USA Freedom Act. USA Rights would make it harder for the FISC to continue to do so. And HPSCI’s response to that is to whimper that Congress is “subverting the authority” of another branch by demanding that it follow the law?

Update: DemandProgress did a fact check of this flyer that’s quite good.

Reminder: The Guy Killing the HPSCI Investigation Was Part of Trump’s Troubled Transition Team

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Over the weekend, the WaPo had an article on all the things Devin Nunes is doing to kill the House Intelligence Committee investigation into Trump’s cooperation with Russia during the election. It started like this:

Rep. Devin Nunes, once sidelined by an ethics inquiry from leading the House Intelligence Committee’s Russia probe, is reasserting the full authority of his position as chairman just as the GOP appears poised to challenge special counsel Robert S. Mueller III’s investigation of possible coordination between the Trump campaign and Russian officials.

The California Republican was cleared in December of allegations he improperly disclosed classified information while accusing the Obama administration of exposing the identities of Trump affiliates on surveillance reports. Since clearing his name, Nunes has stepped up his attacks on Mueller’s team and the law enforcement agencies around it, including convening a group of Intelligence Committee Republicans to draft a likely report on “corruption” among the investigators working for the special counsel.

And ended like this:

Nunes, meanwhile, appears to have made up his mind about the House Intelligence Committee probe into the allegations surrounding Trump and Russia, expressing his convictions in an interview with Fox News.

“We have no evidence of Russia collusion between the Trump campaign” and Russia, Nunes said.

I’ll save you the click and answer the question you should be asking: did this 1400 word article on Nunes’ attempts to kill his committee’s investigation make any mention of the fact that Nunes served on Trump’s Transition Team?

The answer, as it so routinely has been when people treat Nunes’ opinion about whether there was “collusion” between the Trump campaign and Russia as a credible opinion, is no. No, the WaPo didn’t think it relevant to mention that Nunes was a key figure in the transition process that has since become a close focus of the Mueller investigation. Indeed, Nunes was involved in both efforts to shield members of Congress and Transition officials when they do Bibi Netanyahu’s bidding. And if he didn’t use his Congressional email address during the transition (in which case Mueller would probably give it great deference), he might well be among the 13 officials whose emails Mueller’s team obtained from GSA, which has been the latest panic that Nunes has fed.

In short, Nunes was in the thick of things, and he should no more be treated as a credible judge of whether there was collusion going on in the casino than Mike Flynn Jr or Don Jr or Trump himself. While I don’t imagine Nunes is in any legal difficulty, he was nevertheless part of efforts to hijack US policy before Trump became President and some of his obstruction since then has served to distract attention that the Transition Team did so.

And it’s not just WaPo’s news page that seems to have ignored this detail. So has Greg Sargent, in a piece assessing the likelihood HPSCI Democrats would do their own report laying out all the ways Nunes obstructed a legitimate inquiry. You’d think you’d point those two points together: that Nunes obstructed the inquiry because he’s tangentially a subject of it.

This should be a really basic thing: Nunes may have been cleared of leaking. But he is still making key decisions on an investigation into actions targeting an organization he participated in. Naming HPSCI Chair Nunes to his Transition Team might be the most competent aspect of Trump’s cover-up, by far.

That’s the story here.

Trump Transition Team Outraged To Be Treated as Transition Team!!

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This is a general post on the GOP claim Mueller improperly obtained emails from ~13 Transition officials, updated as new news comes available. This post explains what is really going on: the Transition appears to have withheld emails — including the KT McFarland one referring to the election as having been “thrown” — and Mueller obtained proof they were withholding things. 

Both Fox News and Axios have pieces reflecting the outrage!!! among Trump people that they got asked questions about emails they thought they had hidden from Mueller’s investigation. Axios reveals that Mueller obtained the full contents of 12 accounts (Reuters says 13), one including 7,000 emails, from people on the “political leadership” and “foreign-policy team;” it says it includes “sensitive emails of Jared Kushner.”

Fox reveals that a transition lawyer wrote Congress today claiming that it was unlawful for government employees to turn over emails hosted on government servers for a criminal investigation.

A lawyer for the Trump presidential transition team is accusing Special Counsel Robert Mueller’s office of inappropriately obtaining transition documents as part of its Russia probe, including confidential attorney-client communications and privileged communications.

In a letter obtained by Fox News and sent to House and Senate committees on Saturday, the transition team’s attorney alleges “unlawful conduct” by the career staff at the General Services Administration in handing over transition documents to the special counsel’s office.

Officials familiar with the case argue Mueller could have a problem relating to the 4th Amendment – which protects against unreasonable searches and seizures.

Kory Langhofer, the counsel to Trump for America, wrote in the letter that the the GSA “did not own or control the records in question.”

But, Langhofer says, Mueller’s team has “extensively used the materials in question, including portions that are susceptible to claims of privilege.”

And Axios explains that the Trump people actually sorted through this stuff. “The sources say that transition officials assumed that Mueller would come calling, and had sifted through the emails and separated the ones they considered privileged.”

I’m really looking forward to hearing the full story about this, rather than just this partisan spin. For example, I’m interested in whether Mueller realized via some means (perhaps from someone like Reince Priebus or Sean Spicer — update, or George Papadopoulos) that the White House had withheld stuff that was clearly responsive to his requests, so he used that to ask GSA to turn over the full set.

I’m also interested in how they’ll claim any of this was privileged. The top 13 political and foreign policy people on the Trump team might include (asterisks mark people confirmed to be among those whose accounts were obtained):

  1. Pence
  2. Bannon
  3. Jared*
  4. Flynn*
  5. KT McFarland
  6. Spicer
  7. Priebus
  8. Nunes
  9. Sessions
  10. Seb Gorka
  11. Stephen Miller
  12. Hope Hicks
  13. Ivanka
  14. Don Jr
  15. Rebekah Mercer
  16. Kelly Anne Conway
  17. Rudy Giuliani
  18. Steven Mnuchin
  19. Rick Gates
  20. Corey Lewandowski
  21. Tom Bossert

Just one of those people — Sessions — is a practicing lawyer (and he wasn’t, then), and he wasn’t playing a legal role in the transition (though both Sessions and Nunes may have been using their congressional email, in which case Mueller likely would show far more deference; update: I’ve added Rudy 911 to the list, and he’d obviously qualify as a practicing lawyer). Though I suppose they might have been talking with a lawyer. But I would bet Mueller’s legal whiz, Michael Dreeben, would point to the Clinton White House Counsel precedent and say that transition lawyers don’t get privilege.

Furthermore, Trump wasn’t President yet! This has come up repeatedly in congressional hearings. You don’t get privilege until after you’re president, in part to prevent you from doing things like — say — undermining existing foreign policy efforts of the actually still serving President. So even if these people were repeating things Trump said, it wouldn’t be entitled to privilege yet.

Finally, consider that some of these people were testifying to the grand jury months and months ago. But we’re only seeing this complaint today. That’s probably true for two reasons. One, because Mueller used the emails in question (most notably, the emails between McFarland and Flynn from December 29 where they discussed Russian sanctions) to obtain a guilty plea from Flynn. And, second, because Republicans are pushing to get Trump to fire Mueller.

Update: I’ve added Pence, Don Jr., Ivanka, Hope Hicks, Kelly Anne Conway, Rudy Giuliani, Steven Mnuchin back in here.

Update: Here’s more from Reuters.

Langhofer, the Trump transition team lawyer, wrote in his letter that the GSA’s transfer of materials was discovered on Dec. 12 and 13.

The FBI had requested the materials from GSA staff last Aug. 23, asking for copies of the emails, laptops, cell phones and other materials associated with nine members of the Trump transition team response for national security and policy matters, the letter said.

On Aug. 30, the FBI requested the materials of four additional senior members of the Trump transition team, it said.

The GSA transfer may only have been discovered this week (probably as a result of Congress’ investigation). But the witnesses had to have known these emails went beyond the scope of what the transition turned over. And the request date definitely is late enough for Mueller to have discovered not everything got turned over, perhaps even from George Papadopoulos, who flipped in late July.

Update: One more thing. Remember that there were worries that transition officials were copying files out of a SCIF. That, by itself, would create an Insider Threat concern that would merit FBI obtaining these emails directly.

Update: Here’s a report dated June 15 on a transition lawyer instructing aides and volunteers to save anything relating to Russia, Ukraine, or known targets (Flynn, Manafort, Page, Gates, and Stone).

Update: AP reports that Flynn was (unsurprisingly) among those whose email was obtained.

Update: Here’s the letter. I unpacked it here. It’s a load of — I believe this is the technical term — shite. First, it stakes everything on PTT not being an agency. That doesn’t matter at all for a criminal investigation — Robert Mueller was no FOIAing this stuff. It then later invokes a bunch of privileges (the exception is the attorney client one) that only come with the consequent responsibilities. It then complains that Mueller’s team didn’t use a taint team.

Perhaps the craziest thing is they call for a law that would only permit someone to access such emails for a national security purpose — as if an espionage related investigation isn’t national security purpose!

Update: Chris Geidner got GSA’s side of the story. Turns out they claim the now dead cover up GC didn’t make the agreement the TFA lawyer says he did. In any case, GSA device users agreed their devices could be monitored.

“Beckler never made that commitment,” he said of the claim that any requests for transition records would be routed to the Trump campaign’s counsel.

Specifically, Loewentritt said, “in using our devices,” transition team members were informed that materials “would not be held back in any law enforcement” actions.

Loewentritt read to BuzzFeed News a series of agreements that anyone had to agree to when using GSA materials during the transition, including that there could be monitoring and auditing of devices and that, “Therefore, no expectation of privacy can be assumed.”

Update: Mueller’s spox, Peter Carr, issued a statement saying, “When we have obtained emails in the course of our ongoing criminal investigation, we have secured either the account owner’s consent or appropriate criminal process.”

10 Years of emptywheel: Key Non-Surveillance Posts 2016-2017

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Happy Birthday to me! To us! To the emptywheel community!

On December 3, 2007, emptywheel first posted as a distinct website. That makes us, me, we, ten today.

To celebrate, over the next few days, the emptywheel team will be sharing some of our favorite work from the last decade. I’ll be doing probably 3 posts featuring some of my most important or — in my opinion — resilient non-surveillance posts, plus a separate post bringing together some of my most important surveillance work. I think everyone else is teeing up their favorites, too.

Putting together these posts has been a remarkable experience to see where we’ve been and the breadth of what we’ve covered, on top of mainstays like surveillance. I’m really proud of the work I’ve done, and proud of the community we’ve maintained over the years.

For years, we’ve done this content ad free, relying on donations and me doing freelance work for others to fund the stuff you read here. I would make far more if I worked for some free-standing outlet, but I wouldn’t be able to do the weedy, iterative work that I do here, which would amount to not being able to do my best work.

If you’ve found this work valuable — if you’d like to ensure it remains available for the next ten years — please consider supporting the site.

2016

Why Doesn’t Dianne Feinstein Want to Prevent Murders Like those Robert Dear Committed?

I’ve written a lot about how the focus on Islamic terrorism, based on a claim it’s foreign, creates gross inequalities for Muslims in this country, and does nothing to address some of our most dangerous mass killers (as the Stephen Paddock massacre in Las Vegas makes all too clear). This post is one of that series. It focuses on how the ill-advised efforts to use the No Fly List to create a list of those who couldn’t own guns would be discriminatory and wouldn’t add much to safety.

“Only Facts Matter:” Jim Comey Is Not the Master Bureaucrat of Integrity His PR Sells Him As

From the periods when Jim Comey was universally revered as a boy scout through those when Democrats blamed him for giving us Trump (through the time Democrats predictably flip flopped on that point), I have consistently pointed to a more complicated story, particularly with regards to surveillance and torture. I think the lesson of Comey isn’t so much he’s a bad person — it’s that he’s human, and no human fits into the Manichean world of good guys and bad guys that he viewed justice through.

NSA and CIA Hacked Enrique Peña Nieto before the 2012 Election

As Americans came to grips with the fact that Russia had hacked Democrats to influence last year’s election, many people forgot that the US does the same. And it’s not even just in the bad old days of Allen Dulles. The Snowden documents revealed that NSA and CIA hacked Enrique Peña Nieto in the weeks before he was elected in 2012. The big difference is we don’t know what our spooks did with that information.

Why Is HPSCI’s Snowden Report So Inexcusably Shitty?

In 2016, HPSCI released its Devin Nunes-led investigation into Edward Snowden’s leaks. It was shitty. Really shitty.

Now that the HPSCI investigation into the Russian hack (which has not been subjected to the same limitations as the Snowden investigation was) has proven to be such a shit show, people should go back and review how shitty this review was (including its reliance on Mike Flynn’s inflammatory claims). There absolutely should have been a review of Snowden’s leaks. But this was worse than useless.

Look Closer to Home: Russian Propaganda Depends on the American Structure of Social Media

As people began to look at the role of fake news in the election, I noted that we can’t separate the propaganda that supported Trump from the concentrated platforms that that propaganda exploited. A year later, that’s a big part of what the Intelligence Committees have concluded.

The Evidence to Prove the Russian Hack

In this post I did a comprehensive review of what we knew last December about the proof Russia was behind the tampering in last year’s election.

Obama’s Response to Russia’s Hack: An Emphasis on America’s More Generalized Vulnerability

Last year, in a speech on the hack, Obama focused more on America’s vulnerability that made it possible for Russia to do so much damage than he did on attacking Putin. I think it’s a really important point, one I’ve returned to a lot in the last year.

The Shadow Brokers: “A Nice Little NSA You’ve Got Here; It’d Be a Shame If…”

In December, I did a review of all the posts Shadow Brokers had done and suggested he was engaged in a kind of hostage taking, threatening to dump more NSA tools unless the government met his demands. I was particularly interested in whether such threats were meant to prevent the US from taking more aggressive measures to retaliate against Russia for the hack.

2017

On “Fake News”

After getting into a bunch of Twitter wars over whether we’re at a unique moment with Fake News, I did this post, which I’ve often returned to.

How Hal Martin Stole 75% of NSA’s Hacking Tools: NSA Failed to Implement Required Security Fixes for Three Years after Snowden

The government apparently is still struggling to figure out how its hacking tools (both NSA and CIA) got stolen. I noted back in January that an IG report from 2016 showed that in the three years after Snowden, the IC hadn’t completed really basic things to make itself more safe from such theft.

The Doxing of Equation Group Hackers Raises Questions about the Legal Role of Nation-State Hackers

One thing Shadow Brokers did that Snowden and WikiLeaks, with its Vault 7 releases, have not is to reveal the identities of NSA’s own hackers. Like DOJ’s prosecution of nation-state hackers, I think this may pose problems for the US’ own hackers.

Reasons Why Dems Have Been Fucking Stupid on the Steele Dossier: a Long Essay

I believe Democrats have been ill-advised to focus their Russia energy on the Steele dossier, not least because there has been so much more useful reporting on the Russia hack that the Steele dossier only makes their case more vulnerable to attack. In any case, I continue to post this link, because I continue to have to explain the dossier’s problems.

Other Key Posts Threads

10 Years of emptywheel: Key Non-Surveillance Posts 2008-2010

10 Years of emptywheel: Key Non-Surveillance Posts 2011-2012

10 Years of emptywheel: Key Non-Surveillance Posts 2013-2015

The Unmasking Panic and the Flynn Plea

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Yesterday, Eli Lake was the first person to confirm the identity of the “very senior” official who “directed FLYNN to contact officials from foreign governments, including Russia, to learn where each government stood on the resolution” condemning Israel’s illegal settlements.

At the time, the U.N. Security Council resolution on Israeli settlements was a big deal. Even though the Obama administration had less than a month left in office, the president instructed his ambassador to the United Nations to abstain from a resolution, breaking a precedent that went back to 1980 when it came to one-sided anti-Israel resolutions at the U.N.

This was the context of Kushner’s instruction to Flynn last December. One transition official at the time said Kushner called Flynn to tell him he needed to get every foreign minister or ambassador from a country on the U.N. Security Council to delay or vote against the resolution. Much of this appeared to be coordinated also with Israeli prime minister Benjamin Netanyahu, whose envoys shared their own intelligence about the Obama administration’s lobbying efforts to get member states to support the resolution with the Trump transition team.

Lake was also the reporter who got the earliest “scoops” on the unmasking panic earlier this year.

There’s a reason for that. They’re the same story.

In April, I laid out how Devin Nunes was at the center of both the January unmasking panic and the panic on behalf of a bunch of Republicans, during the Iran deal negotiations, who got their collusion with Bibi Netanyahu to kill the deal sucked up.

Throughout his ongoing information operation to claim the Obama White House spied on the Trump transition team, Devin Nunes has pointed to what he claimed was a precedent: when, in December 2015, members of Congress suddenly copped on that their conversations with Bibi Netanyahu would get picked up incidentally. In his March 22 press conference, he explained,

We went through this about a year and a half ago as it related to members of Congress, if you may remember there was a report I think it was in the Wall Street Journal and but then we had to have we had a whole series of hearings and then we had to have changes made to how Congress is informed if members of Congress are picked up in surveillance and this looks it’s like very similar to that.

Eli Lake dutifully repeated it in the second of his three-post series pitching Nunes’ information operation.

A precedent to what may have happened with the Trump transition involved the monitoring of Israel’s prime minister and other senior Israeli officials. The Wall Street Journal reported at the end of 2015 that members of Congress and American Jewish groups were caught up in this surveillance and that the reports were sent to the White House. This occurred during a bitter political fight over the Iran nuclear deal. In essence the Obama White House was learning about the strategy of its domestic political opposition through legal wiretaps of a foreign head of state and his aides.

But Lake didn’t apparently think through what the implications of Nunes’ analogy — or the differences between the two cases.

Here’s the WSJ report and CBS and WaPo versions that aren’t paywalled. All make it very clear that Devin Nunes took the lead in worrying about his conversations with Bibi Netanyahu being sucked up (I don’t remember Republicans being as sympathetic when Jane Harman got sucked up in a conversation with AIPAC).

It’s clear now that it’s all one panic.

The most public confirmed unmasking involved Susan Rice discovering that Sheikh Mohammed bin Zayed al-Nahyan had a secret meeting with Flynn, Kushner, and Bannon in NY.

Former national security adviser Susan Rice privately told House investigators that she unmasked the identities of senior Trump officials to understand why the crown prince of the United Arab Emirates was in New York late last year, multiple sources told CNN.

The New York meeting preceded a separate effort by the UAE to facilitate a back-channel communication between Russia and the incoming Trump White House.
The crown prince, Sheikh Mohammed bin Zayed al-Nahyan, arrived in New York last December in the transition period before Trump was sworn into office for a meeting with several top Trump officials, including Michael Flynn, the president’s son-in-law, Jared Kushner, and his top strategist Steve Bannon, sources said.

But we now know that there would be intercepts between Netanyahu and Kushner leading up to it.

I wouldn’t even be surprised if the Republicans are so certain they’ve been unmasked because Israel has their own way of discovering such things.

I’ve laid out how Jared Kushner’s “peace” “plan” really is just an attempt to remap the Middle East to the interests of Israel and Saudi Arabia, interests which require significantly more belligerence against Iran than Obama showed. The unmasked discussions would include the ones that preceded Kushner’s order to Flynn to try to undercut the resolution, as well as whatever else Kushner discussed with Netanyahu at the time.

HPSCI’s Big Reform to Section 702: Figure Out What “Derived From” Means, Six Months Too Late

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During the precise period when news that Mike Flynn was pleading guilty to lying about conversations picked up on intercepts of Sergey Kislyak, the House Intelligence Committee was marking up their terrible Section 702 bill. The markup was a squabble fest, with a strict party line vote approving the measure, because the language on unmasking the HPSCI Republicans included in the last minute bill very specifically focuses on the transition period unmasking that got Flynn in trouble,

(6) If a covered request is made during a period beginning on the date of a general election for President and ending on the date on which such President is inaugurated—

(A) the documentation under paragraph (1) includes whether—

(i) the individual of a requesting element who is making the request knows or believes that any United States person identity sought by the request is of an individual who is a member of the transition team of the President-elect and Vice-President-elect; or

(ii) based on the intelligence community report to which the request pertains, the originating element knows or reasonably believes that any United States person identity sought by the request is of an individual who is a member of the transition team of the President-elect and Vice-President-elect;

But the far more interesting detail came as Devin Nunes described an amendment to the manager’s amendment, I believe on behalf of Adam Schiff.

It would require the government to tell the relevant oversight committees what “derived from” means under FISA.

SEC. 210. BRIEFING ON NOTIFICATION REQUIREMENTS.

Not later than 180 days after the date of the enactment of this Act, the Attorney General, in consultation with the Director of National Intelligence, shall provide to the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives and the Committee on the Judiciary and the Select Committee on Intelligence of the Senate a briefing with respect to how the Department of Justice interprets the requirements under sections 106(c), 305(d), and 405(c) of the Foreign Intelligence Surveillance Act of 1978 50 U.S.C. 1806(c), 1825(d), and 1845(c)) to notify an aggrieved person under such sections of the use of information obtained or derived from electronic surveillance, physical search, or the use of a pen register or trap and trace device. The briefing shall focus on how the Department interprets the phrase ‘‘obtained or derived from’’ in such sections.

Understand, knowing what derived from means is utterly fundamental to enacting the least bit of oversight over FISA. Particularly given the abundant evidence that DOJ is not giving the legally required notice (and given that, because this notice language is not part of the minimization procedures that FISC polices), HPSCI would need to know to know if, as seems apparent, DOJ is basically a scofflaw on defendant notice.

But rather than holding hearings and demanding answers to this question (NSA Subcommittee Ranking Member Jim Himes revealed he has not been in any consultation on 702 reauthorization at all this year), HPSCI instead decided to pass a law requiring that they be told 6 months after they can do anything about it.