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Sidney Powell Implicates Barbara Ledeen in Her Effort to Undermine Democracy

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Yesterday, GA’s Republican Secretary of State Brad Raffensperger used various means to push back on the Republicans who were trying to cheat to win. In addition to a genuinely useful thread from Erick Erickson debunking one after another conspiracy theory about GA’s vote, he gave an interview to the WaPo detailing how his Republican colleagues have been pressuring him.

He called Doug Collins (who, remember, campaigned with all the Trump felons) a liar.

The normally mild-mannered Raffensperger saved his harshest language for Rep. Douglas A. Collins (R-Ga.), who is leading the president’s efforts in Georgia and whom Raffensperger called a “liar” and a “charlatan.”

Collins has questioned Raffensperger’s handling of the vote and accused him of capitulating to Democrats by not backing allegations of voter fraud more strongly.

[snip]

“I’m an engineer. We look at numbers. We look at hard data,” Raffensperger said. “I can’t help it that a failed candidate like Collins is running around lying to everyone. He’s a liar.”

More alarmingly, Raffensperger described Lindsey Graham suggesting he should throw out entire counties of legally cast votes.

Raffensperger also said he spoke on Friday to Graham, the chairman of the Senate Judiciary Committee, who has echoed Trump’s unfounded claims about voting irregularities.

In their conversation, Graham questioned Raffensperger about the state’s signature-matching law and whether political bias could have prompted poll workers to accept ballots with nonmatching signatures, according to Raffensperger. Graham also asked whether Raffensperger had the power to toss all mail ballots in counties found to have higher rates of nonmatching signatures, Raffensperger said.

Raffensperger said he was stunned that Graham appeared to suggest that he find a way to toss legally cast ballots. Absent court intervention, Raffensperger doesn’t have the power to do what Graham suggested because counties administer elections in Georgia.

“It sure looked like he was wanting to go down that road,” Raffensperger said.

As a number of people have pointed out, it’s a crime under GA law to solicit election fraud.

Meanwhile, Sidney Powell continues her effort to drum up support for undermining democracy. In a tweet this morning, she included Lindsey Graham staffer Barbara Ledeen among her co-conspirators.

In addition to working with Mike Flynn to try to reach out to hostile foreign governments in hopes they had hacked Hillary’s emails, Ledeen’s spouse, Michael, was the first person Flynn called when he was trying to figure out how to undermine sanctions on Russia.

Ledeen is, in spite of those glaring conflicts, the key staffer behind Lindsey’s efforts to undermine the Russian investigation. That suggests she’s also a key staffer behind Lindsey’s decision to ignore how DOJ has altered documents in Bill Barr’s effort to undermine the prosecution of Powell’s staffer.

I honestly believe that Lindsey does all this because his mind has rotted and people like Ledeen have told him so many lies he believes it. But now he’s entering a potentially criminal racket.

The Very Limited Republican Concern about FISA

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There are a number of FISA submissions made by the Trump Administration that the FISA Court has found problematic. They include:

March 24-27, 2017: FBI conducts queries on FISA data using identifiers for over 70,000 facilities associated with persons with access to FBI facilities and systems (noticed to the court on November 22, 2017)

April 7, 2017: Reauthorization of Carter Page FISA, signed by Jim Comey and Dana Boente, at a time when probable cause was thin and contrary evidence mounting

June 29, 2017: Reauthorization of Carter Page FISA, signed by Andrew McCabe and Rod Rosenstein, at a time when few believed the order was producing valuable intelligence and abundant contrary evidence was known

October 11, 2017: FBI conducts queries to identify cleared personnel on whom to serve process (noticed to the court on February 21, 2018)

November 22, 2017: FBI takes 8 months before notifying FISC of the March 2017 queries

December 1, 2017: FBI conducts over 6,800 queries using a group of social security numbers (noticed to the court on April 27, 2018)

December 7-11, 2017: FBI conducts queries on the identifiers of 1,600 people (noticed to the court on April 12, 2018)

Unknown date: FBI conducts queries of 57,000 identifiers (or individuals) that may not have been designed to return foreign intelligence information (noticed to the court on April 13, 2018)

February 5 and 23, 2018: FBI conducts 30 queries on potential sources (noticed to the court on June 7, 2018)

February 21, 2018: FBI conducts 45 queries on persons being considered as sources (noticed to the court on May 21, 2018)

March 27, 2018: Submission of FBI 702 querying procedures, accompanying an application that included a declaration from Christopher Wray, that fell far short of what Congress recently required

September 18, 2018: Submission of FBI 702 querying procedures that still fall short of standards mandated by Congress, including a supplemental declaration from Wray that relies, in part, on FBI’s “strong culture that places great emphasis on personnel consistently conveying true and accurate information”

Not only did both the Carter Page applications from which DOJ withdrew its probable cause claim come under the Trump Administration, but a slew of fairly alarming uses of FISA data happened under Trump as well. A bunch of them occurred under Chris Wray. Indeed, Chris Wray submitted a declaration to the FISC in September 2018 — long after there were questions about the Carter Page FISAs — suggesting the FBI shouldn’t have to write stuff down as it queries 702 data, in spite of what Congress required by law.

The Director anticipates that approach would divert resources from investigative work, delay assessment of threat information, and discourage its personnel from querying unminimized FISA information, to the detriment of public safety. Id. at 9-12. He also describes an alternative approach whereby personnel would be allowed to forgo such research and rely solely on their “personal knowledge” in making those assessments. Id. at 12. The Director expects that practice would “result in inconsistent and unreliable information in FBI systems,” id., thereby complicating other aspects of the FBI’s work – e.g., implementing its Section 702 targeting procedures. Id. at 13-14. The Director also expresses concern that such an approach would be inconsistent with the FBJ’s “strong culture that places great emphasis on personnel consistently conveying true and accurate information.” Id. at 14.

[snip]

The government further objects that requiring a written justification to examine the contents provided in response to U.S.-person queries of Section 702 information “would substantially hinder the FBI’s ability to investigate and protect against threats to national security.” Supplemental FBI Declaration at 17. Different fo1ms of hindrance are claimed.

[snip]

[At the heart of the government’s objections to the documentation requirement proposed by amici is an understandable desire to ensure that FBI personnel can] perform their work with the utmost efficiency and “connect dots” in an effort to protect the national security. Given the lessons learned following 9/11 and the Fort Hood shooting, as well as the FBI’s significant reliance on queries to effectively and efficiently identify threat streams in its holdings, the FBI is extremely concerned about anything that would impede, delay, or create a disincentive to querying FBI databases. Supplemental FBI Declaration at 7 (emphasis added).

Yet in spite of the fact that Chris Wray, himself, participated in a 18-month effort to ignore the will of Congress with respect to 702 queries, no one raised that in yesterday’s oversight hearing. Not to mention the GOP got plenty of facts wrong, such as treating FISA as a terrorism thing, and not, increasingly, the very same counterintelligence purpose used with Page.

To be sure, aside from some comments acknowledging that IG Report, Democrats weren’t raising any questions about FISA (though Jerry Nadler did thank Jim Sensenbrenner for agreeing to delay consideration of Section 215 reauthorization to allow for consideration of the IG Report).

Here’s the thing, though: The FISA Court has complained about FBI surveillance practices all occurring under Trump affecting up to 135,476 Americans.

And Republicans claiming to give a goddamn about FISA are really just concerned about one of those Americans.

Which is a pretty good indication they’re not really concerned about the surveillance at all.

A Diverse America Votes to Uphold the Constitution; A Largely Male White America Votes to Abrogate It

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The House Judiciary Committee just voted to send two articles of impeachment against Donald Trump to the full House.

The entire vote took just minutes. But it said so much about the state of America today.

It will forever be portrayed as a party line vote, with 23 Democrats in favor, and 17 Republicans against. But it was also a tribute to the degree to which polarization in America today pivots on issues of diversity.

The Democrats who voted in favor included 11 women, and 13 Latinx and people of color (Ted Lieu missed the vote recovering from a heart procedure). Three (plus Lieu) are immigrants. One is gay. These Democrats voted to uphold the Constitution a bunch of white men, several of them owners of African-American slaves, wrote hundreds of years ago.

The Republicans who voted against were all white. Just two were women.  These Republicans voted to permit a racist white male President to cheat to get reelected in violation of the rule of law.

This is about a clash between the rising America and the past. And it’s unclear who will win this battle for America. But the stakes are clear.

 

The 18th Warrant Application against Roger Stone Investigated Hacking

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Update: A later ABJ ruling makes it clear that, true to form, Stone’s lawyers are completely disorganized and Exhibit 18 was not in fact the last warrant temporally.

Doug Collins asked some curious questions — amid a series of questions designed to rule out Robert Mueller passing non-public information to Democrats — at Wednesday’s hearing. He asked whether Mueller had obtained any additional information since closing up shop in May 2019.

COLLINS: Since closing the special counsel’s office in May of 2019, have you conducted any additional interviews or obtained any new information in your role as special counsel?

MUELLER: In the — in the — in the wake of the report?

COLLINS: Since the — since the closing of the office in May of 2019.

MUELLER: And the question was, have we conducted…

COLLINS: Have you conducted any new interviews, any new witnesses, anything?

MUELLER: No.

The conversation served as background to Collins’ questions about whether Trump or “those close to him” were involved in Russian conspiracies.

COLLINS: Isn’t it true the evidence did not establish that the president or those close to him were involved in the charged Russian computer hacking or active measure conspiracies or that the president otherwise had unlawful relationships with any Russian official, Volume 2, page 76? Correct?

MUELLER: I will leave the answer to our report.

COLLINS: So that is a yes.

The question is interesting for two reasons.

First, as I noted, Mueller’s resignation on May 29 preceded Roger Stone aide Andrew Miller’s agreement to testify to the grand jury by minutes. Mueller stayed in place long enough to ensure the subpoena served on Miller a year earlier would be enforced. But he did not, as Special Counsel, obtain that testimony; the DC US Attorney’s office did, using a different grand jury.

One thing Collins (who reportedly had lunch with Trump’s defense attorney Bill Barr before this hearing) would have done with his question is probe whether Mueller knew what has happened with Miller’s testimony to a different grand jury. But it would also mean that Mueller’s answer — that no one close to Trump was involved in any Russian computer hacking — would not cover Miller’s testimony and aftermath.

And that’s interesting because of the history of warrants obtained through February 2019 against Roger Stone.

Between August 2017 and February 2019, the government obtained eighteen search warrants for electronic facilities and properties related to Roger Stone. Doc. 109, Exs. 1-18. Many of these search warrants were issued in the District of Columbia by Chief Judge Beryl A. Howell. Doc. 109, Exs. 1-10, 16, 18. Three warrants were issued in the District by other district judges. See Ex. 11 (Judge Contreras); Ex. 12-13 (Judge Boasberg). Others were issued by magistrate judges in other districts. Exs. 14 (S.D.N.Y); Exs. 15, 17 (S.D. Fl.).

Fourteen of the affidavits (“the 1030 warrant affidavits”) allege probable cause that the search will yield evidence of a violation of 18 U.S.C. § 1030, which makes it a crime to “intentionally access[] a computer without authorization or exceed[] authorized access and thereby obtain[]…information from any protected computer.” 18 U.S.C. § 1030(a)(2)(C). See Exs. 1- 13, 18. In brief, each of these affidavits (at a minimum) states that Stone communicated with the Twitter account Guccifer 2.0 about hacked materials Guccifer had posted. Each affidavit states that on June 15, 2016, Guccifer 2.0 publicly claimed responsibility for the hack of the computer systems of the Democratic National Committee (“DNC”). Each affidavit states that Organization 1 published materials stolen from the DNC in the hack. Each affidavit describes Stone’s communications (including his own public statements about them) with Guccifer 2.0, Organization 1, and the head of Organization 1. Each affidavit submits that, based on those communications, there was probable cause to believe that evidence related to the DNC hack would be found in the specified location. Many of these affidavits contain additional evidence alleging probable cause to believe evidence will be found of violations of additional crimes, including 18 U.S.C. § 3 (accessory after the fact); 18 U.S.C. § 4 (misprision of a felony); 18 U.S.C. § 371 (conspiracy); 18 U.S.C. §§ 1505 and 1512 (obstruction of justice); 18 U.S.C. § 1513 (witness tampering); 18 U.S.C. § 1343 (wire fraud); 18 U.S.C. § 1349 (attempt and conspiracy to commit wire fraud), and 52 U.S.C. § 30121 (foreign contribution ban). See, e.g., Exs. 7-13 (all crimes). Stone raises no arguments regarding these other crimes.

In addition, four of the affidavits (the “false statement warrant affidavits”), issued close in time to Stone’s indictment, allege probable cause that the search will yield evidence of false statements, obstruction of justice, and witness tampering. See Exs. 14-17. Those affidavits set forth evidence supporting the allegations in the indictment that Stone made false statements in his September 2017 testimony before the House Permanent Select Committee on Intelligence (“HPSCI”), obstructed ongoing investigations, and tampered with a witness.

Starting in July 2017, the government obtained warrants targeting Stone investigating — among other things — hacking. In the time leading up to Stone’s indictment in January, the government obtained four warrants investigating just the false statements and witness tampering charges he was indicted for.

And then in February 2019, the government obtained one more warrant. It’s possible that’s the warrant, issued on February 13, reflected in the liberated docket of warrants, which would appear to cover searches of devices obtained from the searches on Stone’s homes. That one targeted hacking again.

Stone’s challenge to the search warrants against him started on May 10, and the government filing laying out the warrants issued between July 2017 and February 2019 was submitted on May 31, the same day Miller testified (and before he complied with an additional request for communications with Stone). So any claim to be discussing the totality of the warrants against Stone (even assuming they’d tell him about ones investigating crimes beyond his current indictment) would not reflect any investigative steps that followed on Miller’s testimony.

To be clear: if Collins knows of further investigation for Stone for hacking, then it’d be pretty likely that he learned of it because Barr was tampering with that investigation. So this is not to say that any ongoing investigation of the President’s rat-fucker will go anywhere.

But Collins’ questions of Mueller would have the effect of cabining off (whether or not that was the intent) any investigation of Stone that continued even in the minutes after Mueller resigned and Stone’s aide finally started testifying. And the last warrant obtained before that point shows that the government continued to investigate Stone for hacking crimes.

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

Did Some Republican in Congress Leak Details of the Mueller Report to Roger Stone?

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There’s a passage from a recent Roger Stone filing I’ve been puzzling over. In a motion asking for discovery on selective prosecution — an effort that started out by arguing no one else had been prosecuted for false statements to Congress before that became ridiculous — Stone claims that

Yet, he was ruled out as a conspirator with the Russian state and WikiLeaks before his transcript from HPSCI was transmitted.

This effort parallels an effort to get the whole Mueller Report and this motion asks for all the declination memos on top of that.

Prosecuting Stone because of his arbitrary classification requires discovery, including the declination memos sent to the Attorney General, so that it may be determined who the government thinks lied to Congress or the Special Counsel, but were not prosecuted.

The claim that Stone was ruled out as a co-conspirator with Russia or WikiLeaks is probably true (though not necessarily all that helpful for his case). I’m just trying to figure out how he knows that, if he does. It seems there are four possibilities:

  1. His lawyers, who are fairly careless and who have made false claims in other briefs, are just making this up
  2. He got something in discovery that makes this clear
  3. He’s basing this off Jerome Corsi’s public claims
  4. Someone who has seen an unredacted copy of the Mueller Report (which currently includes the White House and at least 7 of the 8 Republicans who had been given an opportunity to read it before yesterday) told him what those passages of the report say
  5. He learned of this decision in real time, via reporting to the White House and then some channel from the White House

As noted, his lawyers have not been above making shit up, so it’s possible this is what this claim is. But it feels too specific for that.

It’s also possible he got something in discovery to support this claim, except the prosecutors are fighting to provide precisely this kind of information to him in their fight against releasing the Mueller Report.

Such an assertion could be intuited from Jerome Corsi’s crazed rants. Corsi has said that he believes the true source of his/their knowledge that WikiLeaks would release John Podesta’s emails was the cornerstone to Mueller’s “collusion” case (though of course he was assessing conspiracy, as Stone correctly notes here.

It’s certainly possible this is reflected in the less redacted Mueller Report, which would explaining the timing of this claim, which by my reading is new in this filing. Republicans in Congress have tampered with the criminal cases against Trump’s people on at least two occasions (when Richard Burr told the White House who had been targeted, and whoever reached out to Mike Flynn to discourage his cooperation). Given DOJ’s warnings about how sensitive the report is, it would be fairly damning if one of just 5 Republicans who had seen it already ran to Stone to tell him what’s in it. (Those 5 are: Mitch McConnell, Richard Burr, Lindsey Graham, Kevin McCarthy, and Doug Collins; it’s not clear whether Devin Nunes has reviewed the report yet.)

I’m most interested whether Stone learned in real time — perhaps last fall — that Mueller had decided not to charge him in a conspiracy with WikiLeaks and Russia. That would be particularly interesting given that Paul Manafort actually told what resembles the truth about the campaign’s outreach, through Stone, to WikiLeaks.

Amy Berman Jackson currently has unredacted parts of the Mueller Report pertaining to Stone, so if this information does come from leaks about the Mueller Report, she may recognize that.

As I said, even if Mueller decided not to charge Stone in a conspiracy because, with the witness tampering charges, he may face the same kind of sentence without some of the evidentiary hurdles, it doesn’t amount to selective prosecution.

But Stone sure seems to have a specific idea of what he’s looking for, even if it only helps his (and Trump’s) political case, not his criminal one.

Update: Corrected the number of Republicans known to have reviewed the report to 5.

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

After Mueller: An Off-Ramp on Russia for the Venal Fucks

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We don’t know what the Mueller report says, though given William Barr’s promise to brief the Judiciary Committee leaders this weekend and follow it with a public summary, it’s not likely to be that damning to Trump. But I can think of five mutually non-exclusive possibilities for the report:

  • Mueller ultimately found there was little fire behind the considerable amounts of smoke generated by Trump’s paranoia
  • The report will be very damning — showing a great deal of corruption — which nevertheless doesn’t amount to criminal behavior
  • Evidence that Manafort and Stone conspired with Russia to affect the election, but Mueller decided not to prosecute conspiracy itself because they’re both on the hook for the same prison sentence a conspiracy would net anyway, with far less evidentiary exposure
  • There’s evidence that others entered into a conspiracy with Russia to affect the election, but that couldn’t be charged because of evidentiary reasons that include classification concerns and presidential prerogatives over foreign policy, pardons, and firing employees
  • Mueller found strong evidence of a conspiracy with Russia, but Corsi, Manafort, and Stone’s lies (and Trump’s limited cooperation) prevented charging it

As many people have pointed out, this doesn’t mean Trump and his kin are out of jeopardy. This NYT piece summarizes a breathtaking number of known investigations, spanning at least four US Attorneys offices plus New York state, but I believe even it is not comprehensive.

All that said, we can anticipate a great deal of what the Mueller report will say by unpacking the lies Trump’s aides told to hide various ties to Russia: The report will show:

  • Trump pursued a ridiculously lucrative $300 million real estate deal even though the deal would use sanctioned banks, involve a former GRU officer as a broker, and require Putin’s personal involvement at least through July 2016.
  • The Russians chose to alert the campaign that they planned to dump Hillary emails, again packaging it with the promise of a meeting with Putin.
  • After the Russians had offered those emails and at a time when the family was pursuing that $300 million real estate deal, Don Jr took a meeting offering dirt on Hillary Clinton as “part of Russia and its government’s support for Mr. Trump.” At the end (per the sworn testimony of four people at the meeting) he said his father would revisit Magnitsky sanctions relief if he won. Contrary to the claim made in a statement authored by Trump, there was some effort to follow up on Jr’s assurances after the election.
  • The campaign asked rat-fucker Roger Stone to optimize the WikiLeaks releases and according to Jerome Corsi he had some success doing so.
  • In what Andrew Weissmann called a win-win (presumably meaning it could help Trump’s campaign or lead to a future business gig for him), Manafort provided Konstantin Kilimnik with polling data that got shared with Ukrainian and Russian oligarchs. At the same meeting, he discussed a “peace” plan for Ukraine that would amount to sanctions relief.
  • Trump undercut Obama’s response to the Russian hacks in December 2016, in part because he believed retaliation for the hacks devalued his victory. Either for that reason, to pay off Russia, and/or to pursue his preferred policy, Trump tried to mitigate any sanctions, an attempt that has (with the notable exception of those targeting Oleg Deripaska) been thwarted by Congress.

We know all of these things — save the Stone optimization detail, which will be litigated at trial unless Trump pardons him first — to be true, either because Trump’s aides and others have already sworn they are true, and/or because we’ve seen documentary evidence proving it.

That’s a great deal of evidence of a quid pro quo — of Trump trading campaign assistance for sanctions relief. All the reasons above may explain why Mueller didn’t charge it, with the added important detail that Trump has long been a fan of Putin. Trump ran openly on sanctions relief and Presidents get broad authority to set their own foreign policy, and that may be why all this coziness didn’t amount to criminal behavior: because a majority of the electoral college voted (with Russia’s involvement) to support those policies.

Whatever reason this didn’t get charged as a crime (it may well have been for several involved, including Trump), several things are clear.

First, consider all this from the perspective of Russia: over and over, they exploited Trump’s epic narcissism and venality. Particularly with regards to the Trump Tower deal, they did so in a way that would be especially damaging, particularly given that even while a former GRU officer was brokering the deal, the GRU was hacking Trump’s opponent. They often did so in ways that would be readily discovered, once the FBI decided to check Kilimnik’s Gmail account. Russia did this in ways that would make it especially difficult for Trump to come clean about it, even if he were an upstanding honest person.

Partly as a result, partly because he’s a narcissist who wanted to deny that he had illicit help to win, and partly because he’s a compulsive liar, Trump and his aides all lied about what they’ve now sworn to be true. Over and over again.

And that raised the stakes of the Russian investigation, which in turn further polarized the country.

As I noted here, that only added to the value of Russia’s intervention. Not only did Trump’s defensiveness make him prefer what Putin told him to what American Russian experts and his intelligence community would tell him, but he set about destroying the FBI in an effort to deny the facts that his aides ultimately swore were true. Sure, Russia hasn’t gotten its sanctions relief, yet. But it has gotten the President himself to attack the American justice system, something Putin loves to do.

We don’t know what the Mueller report will say about Trump’s role in all this, and how that will affect the rest of his presidency. We do know he remains under investigation for his cheating (as an unindicted co-conspirator in the ongoing hush money investigation) and his venality (in the inauguration investigation, at a minimum).

We do know, however, that whatever is in that report is what Mueller wants in it; none of the (Acting) Attorneys General supervising him thwarted his work, though Trump’s refusal to be interviewed may have.

But we also know that Russia succeeded wildly with its attack in 2016 and since.

Democrats and Republicans are going to continue being at each other’s throats over Trump’s policies and judges. Trump will continue to be a venal narcissist who obstructs legitimate oversight into his mismanagement of government.

Both sides, however, would do well to take this report — whatever it says — as the final word on this part of the Russian attack in 2016, and set about protecting the country from the next attack it will launch.

An unbelievable swath of this country — including the denialists who say all those things that Trump’s own aides swore to doesn’t amount to evidence of wrongdoing — have chosen for tribal reasons (and sometimes venal ones) to side with kleptocratic Russians over the protection of America. Now that the report is done, it’s time to focus on protecting the United States again.

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

The Mueller Report Has Been Delivered

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The Senate and House Judiciary Committees have officially been notified that the William Barr received the Mueller report. He notified them that neither the Acting Attorney General nor he vetoed any prosecutorial decision.

He told the Chairs and Ranking Members he may be able to inform them of the main jist of the report this weekend. And he will work with Mueller and Rod Rosenstein on how much else can be released.

Update: DOJ is now saying that there are no outstanding indictments, and no more expected.

Peter Strzok’s Out of Scope Polygraph

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I watch shit-show hearings so you don’t need to.

And yesterday’s HJC hearing with Rod Rosenstein and Chris Wray was one of the shitshowiest I’ve sat through. I hope to do a post mapping out the cynical theater the Republicans put on yesterday, and how they succeeded in manipulating the press. But first, I want to point to the one really good point Doug Collins sort of made at the hearing.

In January 2016, Peter Strzok had an out of scope polygraph. And yet, by all appearances, he remained working on a sensitive leak investigation, then moved onto an investigation into one of the most damaging spying operations targeting the United States since the Cold War.

Let’s go back to something I asked, you and I had a conversation about a few months ago. Mr. Strzok’s issue I asked at the time did he have a security clearance. You said you would check. Now it appears that security clearance has been revoked. The concern I have again is again, process, inside the Department of Justice on what happens when you have someone of his caliber, counterintelligence level, this is not a new recruit, this is somebody who’s been around has had sensitive information. And on January 13, 2016, an individual from FBI’s Washington Field Office emailed Mr. Strzok and other employees that their polygraphs were, I think it was, “out of scope.” I asked you about that. And asked you if he had been polygraphed. You didn’t know at the time. It said the polygraph raised flags. Now, my question about this would be you didn’t know about the polygraph at the time. We just assume now that it’s out there, you do. Would the topic of extramarital affair have come up in that polygraph or possibility of extramarital affair come up to to put it out of scope?

[snip]

Do you think it’s interesting you would continue to have someone in an investigation of such magnitude and sensitivity who basically had a failed polygraph or an out of scope polygraph test in which they had to then go back and re-answer or complete sensitive [sic] compartmentalized information request on this. Would they stay in that investigation? And if so were they treated differently because of his position or who he was?

[snip]

Does it not strike you as strange, Mr. Wray, and I was not going here but now you’ve led me here. Does it not strike you as strange  that someone who has had an issue with a polygraph, during the investigation in which you have, in which sensitive information were coming about, in which we’ve now seen the text and other things, what would be–could they just flunk a polygraph and you just keep them on, if they could flunk questions, you keep them on sensitive information simply because that — not speaking of Mr. Strzok here, I’m talking overall policy. Is your policy just to keep people around that lie?

I get that polygraphs come close to junk science and don’t measure what they claim to measure. I get that Collins is just trying to discredit the Mueller investigation.

But if you’re going to require that cleared employees — throughout the federal government — take and pass polygraphs, shouldn’t you act when someone has an adverse polygraph? Especially if you’re the FBI, the agency that investigates everyone else’s clearance?

It turns out, FBI already knows it had a problem on this front. In March of this year, DOJ’s Inspector General completed an investigation into how the FBI responded to adverse polygraphs. Based on a review of what happened with problematic polygraph results from 2014 to 2016 — so covering the period in which Strzok’s took place — DOJ IG found that the FBI was not following protocols. Two of its findings pertain directly to what appears to have happened with Strzok. First, the FBI wasn’t always pulling people off SCI information after someone had failed a poly.

Second, we found that the FBI did not always comply with its own policy governing employee access to Sensitive Compartmented Information, classified national intelligence information concerning or derived from sensitive intelligence sources, methods, or analytical processes, which is to be handled exclusively within formal access control systems established by the Director of National Intelligence. The FBI’s policy generally prohibits access to Sensitive Compartmented Information for FBI employees who have not passed a polygraph examination within a specified period. We identified instances in which employees unable to pass multiple polygraph examinations were allowed to retain access to sensitive information, systems, and spaces for extended periods of time without required risk assessments — potentially posing a security risk to the FBI.

While it appears Strzok had just one problematic polygraph, not multiple ones, this appears to be what Collins is talking about: someone not being pulled off sensitive cases when a polygraph triggers a warning, presumably because the FBI considered them too valuable to deal with according to protocol.

In addition, when the FBI investigated failed polygraph, the IG found, the FBI’s investigators weren’t always accessing all materials available to them.

Third, we found that investigations of unresolved polygraph results did not always draw on all sources of FBI information. We identified communication issues between the FBI’s Analysis and Investigations Unit (AIU), which investigates and makes adjudicative recommendations on employee polygraph results, and other FBI personnel security stakeholders. We also had concerns about the AIU’s thoroughness in leveraging all relevant FBI information during its investigations. These issues prevent the AIU from consistently producing thorough and efficient investigations.

I’m not sure whether this would include reviewing an employee’s FBI communications or not, but it might (and probably should). If FBI had reviewed Strzok’s FBI texts in January 2016, they would have discovered he was conducting an undisclosed extramarital affair, the probable explanation of any finding of deception on his polygraph. They’d also have discovered that Strzok agreed with most of the country about what a buffoon Donald Trump was — which in his case would be problematic given that he was carrying out an investigation into Hillary Clinton.

In September, Michael Horowitz informed Christopher Wray of the problem, as he had immediately informed Wray of Strzok’s problematic texts.

Now, that Strzok had a bad polygraph may create problems for any affidavits that Strzok was an affiant for. If he was specifically asked about extramarital affairs in his interview, and lied about it, that lie will be used to challenge any investigative steps that he swore to. While Strzok’s not known to have been the affiant for key steps (such as the Paul Manafort warrants or the Carter Page FISA order), this could create problems for Mueller elsewhere (a point that Wray and Rosenstein admitted elsewhere).

But there’s the counterpart of this. Pulling Strzok off the Hillary investigation in January 2016 would have identified the source of his apparent deception, and led to minor disciplinary action, after which he would have been back on the beat hunting out foreign spies. Instead, his involvement in these two cases has unnecessarily discredited both of them, even though his investigative actions appear to have been defensible in both cases.